St. Louis, O. H. & C. Ry. Co. v. Fowler

• Decision Date: 18 January 1898
• Citation: 142 Mo. 670,44 S.W. 771
• Court: Missouri Supreme Court
• Parties: ST. LOUIS, O. H. & C. RY. CO. v. FOWLER et al.

44 S.W. 771

142 Mo. 670

ST. LOUIS, O. H. & C. RY. CO. v. FOWLER et al.

Supreme Court of Missouri, Division No. 1.

January 18, 1898.

EMINENT DOMAIN — TENANTS IN COMMON — RIGHT OF WAY — EFFECT OF STIPULATION AS TO DAMAGES — EVIDENCE — PROOF OF VALUE — DAMAGES — SPECIAL BENEFITS — INSTRUCTIONS — STATE DECISIS — INTEREST.

1. In a proceeding to condemn a railroad right of way over land held by two persons as tenants in common, who at the trial stipulated with plaintiff that one-half of the total damages should be allowed to each, an assessment list made by one of the defendants is admissible in evidence as to the value of the land.

2. Where a witness, testifying to the value of land, based his knowledge on four or five sales made by him for the owner in the year 1886 or 1887, three deeds made in 1887 by the owner showing the consideration in each much less than that stated by the witness are admissible in rebuttal.

3. The value of residence or business lots on improved streets is not admissible to prove the value of a tract of unimproved land.

4. In assessing damages to the remaining land which is suitable for manufacturing purposes, the switching facilities required by statute to be maintained are properly considered as a benefit in enhancing the value of the land.

5. The damages and benefits to the remaining land after an appropriation of a railroad right of way should be estimated according to the condition of things and the rights of the parties as they exist at the trial.

6. The switching privileges referred to in Rev. St. § 2623, providing that the owner of land near or within a reasonable distance of a railroad, who establishes an industry thereon, when his business justifies it, has the right to have the railroad company provide switch connections, are special benefits to the land affected thereby, and are not common to the community in general.

7. An instruction which leaves the jury, in assessing damages caused by the appropriation of a right of way to the remaining land, to take into consideration the benefits to the land on account of the construction and operation of the road, is not erroneous, where other instructions are given distinctly charging that no deduction should be made on account of general benefits.

8. In order to give a decision as to the construction of a statute the force of stare decisis, the construction should be directly involved in the case decided.

9. Where a railroad pays into court the amount awarded by commissioners for the land appropriated, a subsequent assessment of damages by a jury should not include interest on the amount so deposited.

10. An instruction that the jury was not bound by the testimony of witnesses concerning the value of the land and the actual damages thereto, but that they might apply their own judgment and knowledge as to such values and damages in connection with the testimony offered, is not erroneous.

Appeal from St. Louis circuit court.

Action by the St. Louis, Oak Hill & Carondelet Railway Co. against Lucy A. Fowler and others to condemn a right of way. From the assessment of defendants' damages by a jury, they appeal. Affirmed.

This is a proceeding by the plaintiff, a railway company, to condemn, for right of way, a strip of land through a 24-acre tract belonging to defendants, situate within the limits of St. Louis. The proceedings were commenced in 1886. Commissioners were appointed, who awarded to defendants $2,580 damages. On exceptions thereto filed in the circuit court, a trial by jury was had, and the damages were assessed at $11,541.20. On appeal to this court the judgment was reversed. On a retrial by a jury the damages were assessed at $3,850, and defendants appeal.

During the trial the following stipulation was made by the parties: "It is agreed that at the date of the institution of this suit, as well as on November 22, 1886, the property of the present defendants now in question was owned by the original defendants, Isaac L. Rothan and Rosa Goldsmith, as tenants in common, share and share alike; that is to say, that said Isaac L. Rothan and Rosa Goldsmith each owned an undivided one-half of said property. It is further agreed that one half of the total damages to said land shall be assessed in favor of said Isaac L. Rothan, and the other half in favor of Adolph Loth, executor of Rosa Goldsmith." Evidence was offered by defendants tending to prove the damages sustained, and by plaintiff tending to prove that the remainder of the tract would be specially benefited by the railroad. Exceptions were saved to the admission and rejection of evidence, and to the giving and refusing of instructions. The questions for decision will be stated in the opinion.

David Goldsmith, for appellants. Martin L. Clardy and Henry G. Herbel, for respondent.

MACFARLANE, J. (after stating the facts).

1. It is first insisted that the court committed error in permitting plaintiff to introduce in evidence an assessment list made by defendant Rothan on July 11, 1887, in which he values the land at $10,000. It appears that the court admitted the evidence as an admission of Rothan, and as affecting his interest alone. Counsel for the other defendant does not controvert the well-recognized rule of evidence that admissions and declarations of a party, made against his interest, may be given in evidence against him, and agrees that, if Rothan was the sole defendant, there would have been no error in the admission of the evidence; but it is argued that the admission of one tenant in common is not receivable as evidence against his co-tenant, though both are parties to the same suit, and the evidence, when admitted, necessarily affected the rights of the other defendant, for the reason that the parties had stipulated that the jury should assess the same amount of damages to each of the co-tenants. We do not consider it necessary to determine the question whether the admissions of Rothan were receivable as evidence against his co-tenant. There can be no doubt that they were competent as evidence against the party making them, and we do not think such effect should be given to the stipulation as would prevent the introduction of any evidence, tending to reduce the damage of either party, which would be otherwise competent. Without the stipulation, the evidence was admissible against Rothan. When the defendants agreed that the damage to each of them should be the same, they agreed, in effect, that the jury should disregard the respective interests of the parties, and find the damage done to the land, and divide it between the defendants, thereby making the rights of the co-tenants joint, and, for the purposes of the suit, inseparable. It is well-settled law, at least in this state, that if parties prove a joint interest in the matter in suit, whether as plaintiffs or defendants, an admission by one is, in general, evidence against all. Armstrong v. Farrar, 8 Mo. 629; Hurst v. Robinson, 13 Mo. 83. The legal effect of the stipulation is that each party waived all objection to evidence which was admissible against the other. The parties placed themselves in the position of joint owners in respect to the damages to be assessed, and, on the trial, should not be permitted to shift their position, and claim as tenants in common, in order to prevent the introduction of evidence which would be competent if the ownership was joint. We do not think defendants can complain, though the admissions of Rothan, in the absence of the stipulation, would not have been admissible against the other defendant.

2. The testimony of a witness taken on a former trial was read in evidence by defendants. He testified to the value of the land and based his estimate largely upon sales made by him as agent for one August Stein, in 1886 and 1887, of lots in Fairmount addition. The witness was not present at the trial. In rebuttal, plaintiff read in evidence three deeds made by August Stein, in 1887, to lots in said addition, by which it appeared that the consideration was much less than that given from memory by the witness. Defendants complain of the admission of these deeds, upon the ground that they were not properly identified as the consummation of the sales to which the witness referred. There is no doubt that the plaintiff had the right to prove that the consideration for the sales of land upon which the witness based his estimate of the value was less than that testified to by him. It would tend to impeach his estimate of value, as well as to contradict his testimony. Plaintiff makes no claim that the deeds were admissible for any other purpose. The question, then, is, was a sufficient foundation laid for admission of this impeaching testimony? The witness testified that the sales of lots in Fairmount addition were made by August Stein, in 1886 and 1887. The deed shows the conveyance of lots in the same addition by August Stein in the year 1887. The witness could not state the names of the vendees, but gave it as his recollection that four or five sales were made by Stein. It seems to us that a foundation for the admission of the deeds could not, in the circumstances, have been more completely laid. If five sales were made by Stein, three of them must have been executed by the deeds offered in evidence. The vendor and grantor were the same; the land was in the same addition; and the deeds were made within the time specified by the witness. We think it sufficiently appears that the sales referred to by the witness were the same as those evidenced by the deeds. The deeds were admissible to show the probative value of the opinion of the witness as well as to contradict him.

3. A witness called by plaintiff testified to the value of defendants' land, and to the damages thereto caused by the location of the road across it. His estimate of the value was based upon sales of two similar tracts of land near by. It was shown that one of these tracts had been platted into lots,...