St. Louis Electric Terminal Railway Company v. MacAdaras

• Decision Date: 13 April 1914
• Citation: 166 S.W. 307,257 Mo. 448
• Parties: ST. LOUIS ELECTRIC TERMINAL RAILWAY COMPANY, Appellant, v. JAMES D. MacADARAS et al., Appellants
• Court: Missouri Supreme Court

166 S.W. 307

257 Mo. 448

ST. LOUIS ELECTRIC TERMINAL RAILWAY COMPANY, Appellant, v. JAMES D. MacADARAS et al., Appellants

Supreme Court of Missouri, First Division

April 13, 1914

Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.

Reversed and remanded (with directions).

John S Leahy and Block & Sullivan for defendants.

(1) The plaintiff is an interurban electric railroad within the meaning of Sec. 3228, R. S. 1909. State ex rel. v Williams, 227 Mo. 36. (2) The proceeding seeks the condemnation of the property for depot purposes, within the meaning of Secs. 3073 and 2369, R. S. 1909. (3) A grant of the State's power of eminent domain is strictly construed, and unless the power sought to be exercised has been expressly conferred, it does not exist. Kansas City v. Oil Co., 140 Mo. 64; Schmidt v. Duisnore, 42 Mo. 234; St. Louis Co. v. Railroad, 138 Mo. 598; Southwest Co. v. Scheurich, 174 Mo. 241; 15 Cyc. 567; 1 Lewis on Eminent Domain, secs. 388, 371. (4) The powers of railroad companies to condemn property for construction of the road, on the one hand, and for depot grounds on the other, have for many years been separately dealt with by the General Assembly. R. S. 1909, secs. 3049, 3073, 2369, 3076. (5) The Act of 1907 (R. S. 1909, sec. 3228) confers upon interurban electric lines the power to condemn lands for right of way only, and such a corporation is without power to condemn lands for depot purposes. (a) The General Assembly, familiar with the various rights of eminent domain conferred upon railroad companies, saw fit to confer only one of these powers on electric interurban lines. Statutes, supra; R. S. 1909, sec. 3228. (b) This act is a special act defining the powers of eminent domain to be exercised by such corporations, and is controlling in that field. State v. De Bar, 58 Mo. 308; State v. Green, 87 Mo. 587; Ruschenberg v. Southern Co., 161 Mo. 85; State ex inf. v. Dabbs, 182 Mo. 366; State ex rel. v. Foster, 187 Mo. 610; Gikeson v. Railroad, 222 Mo. 204; Joffee ex parte, 46 Mo.App. 367; 1 Sutherland on Statutory Construction (2 Ed.), sec. 275, p. 532; 2 Id., sec. 491, p. 919. (c) The expression "right-of-way", in the act, does not include "depot purposes." Railroad v. People, 195 Ill. 190; Railroad v. Gooding, 6 Idaho, 776; Joy v. St. Louis, 138 U.S. 44; Railroad v. Ball, 108 Ky. 256; Keener v. Railway, 31 F. 128; Postal Co. v. Southern Co., 90 F. 32; Acord v. Railroad, 113 Mo.App. 99; Plunkett v. Railroad, 79 Wis. 225. (d) The expression of the one power in the Act of 1907 is the exclusion of others. 2 Sutherland on Statutory Construction, sec. 493; Maguire v. Savings Assn., 62 Mo. 346; State ex rel. v. Laughlin, 73 Mo. 448; State ex rel. v. Woodson, 128 Mo. 514; State ex rel. v. Stobie, 194 Mo. 57; State ex rel. v. Withrow, 133 Mo. 513. (e) The General Assembly of 1911 refused to amend the act, as requested by plaintiff's counsel, so as to enlarge the powers thereby conferred to equal those conferred by the general statutes on railroad companies in general. House Bill No. 1034, General Assembly of 1911. (6) The plaintiff has so far abandoned its charter powers and obligations as to be without the power of eminent domain for any purpose. R. S. 1909, secs. 3049, 3074; Laws 1877, p. 187, sec. 4; Railroad v. Davis, 197 Mo. 674; R. S. 1909, sec. 3066; 2 Lewis on Eminent Domain, secs. 505, 402; Doughty v. Railroad, 7 N.J.Eq. 51; United Co. v. National Co., 52 N. J. L. 97.

Edward C. Crow for plaintiff.

(1) The plaintiff is a railroad company organized under the same law as roads operated by steam and has "all the power possessed by steam railroads to condemn property for its use." State ex rel. v. Williams, 227 Mo. 47. (2) The proceedings herein seek to condemn the property for right of way and for depot purposes and for receiving and discharging passengers and freight and express in St. Louis, Missouri. And this court held in the Greffet case that this plaintiff had the right to condemn property for right of way and "to be used to erect depots and places to receive and discharge freight and passengers and express in the City of St. Louis." State ex rel. v. Williams, 227 Mo. 44. (3) The amendment of 1907 which provides "that any corporation now existing, or that may hereafter be incorporated, for the purpose of constructing, building, owning, operating and maintaining an interurban electric railroad, shall have and possess the same right and be subject to the same liabilities and shall be governed by the same powers, laws, limitations, restrictions and proceedings now governing railroads in article 2, chapter 12, R. S. 1899, for the condemnation of lands for right of way, and the fencing thereof," gave the power to electric railroads to condemn property not alone for right of way but for all railroad uses, including ground to be used for a depot. State ex rel. v. Williams, 227 Mo. 47. (4) In Missouri a railroad company organized under the law for organizing steam or commercial railroads may condemn land for depot. Muder v. Railroad Co., 49 Mo. 165. Sections 3049 and 2369 and 3228 and 3073 relating to the condemnation of land by a steam road and electric road for right of way, side-tracks and switches and depots are not independent statutes and unrelated, but they are interdependent and related and are in pari materia with each other. State ex rel. v. Williams, 227 Mo. 47. (5) There was no abandonment of plaintiff's charter route. Mere nonuser will not constitute an abandonment. The intent to abandon must be shown by unequivocal and decisive acts. Scarritt v. Railroad, 148 Mo. 676; Investment Co. v. Railroad, 108 Mo. 50; 2 Lewis on Eminent Domain (3 Ed.), sec. 842, p. 1502; Railroad v. Railroad, 129 Mo. 62; Railroad v. Bradbury, 106 Mo.App. 450; 33 Cyc. 222. (6) The contention of defendants' counsel that plaintiff abandoned its right to build a railroad over its chartered route beyond Twelfth street and Lucas avenue constitutes a collateral attack on plaintiff's charter and this cannot be done in a condemnation proceeding. Railroad v. Railroad, 161 Mo. 288; State ex rel. v. Williams, 227 Mo. 49. (7) Instruction 11, given for defendant-appellant is erroneous for the reason that it is a comment on the evidence and singles out and gives undue prominence to the construction of the freight depot or station of appellant in proximity to the property of defendants and authorized the jury to take into consideration any advancement of the value of defendants' property caused thereby in estimating the fair market value of their property. Railroad v. Stock Yards Co., 120 Mo. 541; State v. Fairbanks, 121 Mo. 148; Liese v. Meyer, 143 Mo. 562; Gharst v. Transit Co., 115 Mo. 412; Gibler v. Railroad, 129 Mo. App 102; Benjamin v. Railroad, 50 Mo. App., 602; Spolm v. Railroad, 87 Mo. 411. (8) Building of road and freight and passenger station constituted one improvement and value of condemned property should have been fixed independent of effect on value of the building of the road and the erection of the freight and passenger depots. "The taking was an inseparable part of the improvement out of which the expected increase in value was to come and on account of which there was a general increase in price of real estate in the vicinity." Kerr v. Park Commrs., 117 U.S. 379; Mowry v. Boston, 173 Mass. 425; Ry. & Nav. Co. v. Realty Co., 115 La. 328; 2 Lewis' Eminent Domain, 745; Sargeant v. Merrimac, 196 Mass. 171, 11 L.R.A. (N.S.) 1002; Benton v. Brookline, 151 Mass. 250; May v. Boston, 158 Mass. 121; Bowdlich v. Boston, 164 Mass. 107; Shoemaker v. United States, 147 U.S. 282. (9) The court committed prejudicial error against the plaintiff when it admitted the testimony of defendants' witnesses as to the value of property on Washington avenue as a standard by which to fix the value of the property of the defendants on Lucas avenue, because the two classes of property were of entirely dissimilar kind. 2 Lewis on Eminent Domain (3 Ed.), sec. 662, p. 1138. (10) The court committed prejudicial and reversible error against the plaintiff when it refused to admit in evidence the agreement signed by R. D. Smith for plaintiff and John S. Leahy for defendants for the purpose of showing that the defendants had offered to take a given sum of money for the property sought to be condemned. Springfield v. Smook, 68 Mo. 394; Webster v. Railroad, 116 Mo. 120. (11) The bridge, the road and the freight and the passenger depots were all located and built as one unit of construction and carried out simultaneously as part of one general plan of improvement. Therefore the general rule applies that no increase in value of land caused by the location of a railroad and depots can be considered in condemnation proceedings in fixing the value of the property taken. Therefore instruction 9 given by the court for the defendants was erroneous in that it only eliminated from the consideration of the jury in fixing the value of the defendants' property any enhanced value caused by the erection of the passenger station of the plaintiff. 158 Mass. 29; Railroad v. Stock Yards, 120 Mo. 553; Railroad v. Christal, 25 Mo. 546; 2 Lewis on Eminent Domain (3 Ed.), sec. 745.

Block & Sullivan in reply for defendants.

(1) On exceptions to the report of commissioners in cases of this character, the jury are to value the property as of the date the commissioners reported, where, as here, the condemnor pays into court the award of the commissioners. Railroad v. Fowler, 113 Mo. 472; In re Forsythe Boulevard, 127 Mo. 421; Railroad v. Knapp-Stout & Co., 160 Mo. 409; Railroad v. Stewart, 201 Mo 497; Railroad v. Town Site Co., 103 Mo. 460. (2) The defendants were entitled to the enhanced value of the property occasioned by improvements made by the plaintiff in the vicinity,...