St. Louis, I. M. & S. Ry. Co. v. Pfau

• Decision Date: 31 March 1908
• Citation: 111 S.W. 10,212 Mo. 398
• Court: Missouri Supreme Court
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. PFAU.

111 S.W. 10

212 Mo. 398

ST. LOUIS, I. M. & S. RY. CO. v. PFAU.

Supreme Court of Missouri, Division No. 2.

March 31, 1908.

Rehearing Denied May 19, 1908.

1. EMINENT DOMAIN—PROCEEDINGS FOR CONDEMNATION —TRIAL — EVIDENCE — COMMISSIONERS' REPORT.

Under Const. Mo. art. 12, § 4 (Ann. St. 1906, p. 302), providing that the right of trial by jury shall be held inviolate in all trials or claims for compensation, when in the exercise of the right of eminent domain any incorporated company shall be interested either for or against such right, in a proceeding to condemn land for a railroad right of way it was error on a trial before a jury, after exceptions had been taken to the award of commissioners, to permit the commissioners' report to be read in evidence to the jury.

2. JURY—RIGHT TO JURY TRIAL—DENIAL— CONDEMNATION PROCEEDINGS.

Rev. St. 1899, § 1268 (Ann. St. 1906, p. 1040), provides that, notwithstanding exceptions are taken to the report of commissioners in condemnation proceedings, the petitioner may proceed to construct the railroad, and any subsequent proceeding shall only affect the amount of compensation to be allowed; the award having been first paid into court as provided by section 1266 (Ann. St. 1906, p. 1037). Held, that when the commissioners' report is filed, and the damages assessed paid into court for the landowner, the railroad may proceed to construct the road without depriving the landowner of his constitutional right to have his damages assessed by a jury, though he may have excepted to the amount allowed by the commissioners, and the exceptions to their report may not have been acted on.

3. SAME.

A landowner, in condemnation proceedings, on filing exceptions to the report of commissioners and praying to have his damages assessed by a jury, is entitled to such relief, though the exceptions to the commissioners' report are still pending and undetermined.

4. EMINENT DOMAIN — ASSESSMENT OF COMPENSATION —JUDGMENT.

Where, pending exceptions to the award of commissioners in condemnation proceedings, the landowner procured a trial of his right to damages by jury, if the amount allowed by the jury is in excess of the award allowed and received, the court may deduct the amount received from the amount of the verdict and render judgment for the excess.

5. SAME—ELEMENTS OF DAMAGE—DEPRECIATION OF PROPERTY—RAILROADS.

Depreciation in the value of property not taken for a railroad right of way, caused by the risk of fire, is a proper element of damage in condemnation proceedings; but any loss or destruction by actual fire can be compensated for only by a separate action after the fire has occurred.

6. SAME—BUILDINGS—REMOVAL.

Where a railroad company removed, at its own expense, from land condemned for a right of way, certain buildings thereon, to other land belonging to defendant, who retained possession of the buildings, defendant's measure of damages for such buildings was not the value of the buildings before removal, but the damage, if any, sustained by the removal.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Condemnation proceedings by the St. Louis, Iron Mountain & Southern Railway Company against Lenore P. Pfau. Issue having been joined on exceptions to an award by commissioners, a trial by jury was had resulting in a verdict for plaintiff, and from judgment thereon, defendant appeals. Reversed and remanded.

Henry Brumback and J. J. Manlove, for appellant. M. L. Clardy and E. J. White, for respondent.

BURGESS, J.

This action was instituted by plaintiff to condemn a right of way over the land of defendant in Lawrence county. The petition was filed December 31, 1903, against several landowners, including the defendant. It alleges, in substance: That plaintiff is a railroad corporation. That the White River Railway Company is a corporation, authorized to construct a railroad from Batesville, Ark., to Carthage, Mo. That the latter company made and filed a profile map in the office of the clerk of the county court of Lawrence county, Mo., and afterwards said company transferred its franchise to plaintiff. That it needs for its right of way, etc., a strip of land 50 feet wide, being 15 feet on the north side and 35 feet on the south side of the center line of the roadbed and track of the St. Louis, Iron Mountain & Southern Railway; said center line being described as follows, to wit: "Beginning at a point on the west line of the north half of lot two of the southwest fractional quarter of section seven, at a point 213.1 feet south of the northeast corner, and running thence in an easterly direction a distance of 930 feet to a point 33 feet south of the line of the right of way of the St. Louis & San Francisco Railroad Company, said strip containing 1.06 acres, being in township 26, of range 25." That the defendant, Lenore P. Pfau, is the owner of such land and is a nonresident. And that plaintiff has been unable to agree with her as to the price of such strip. The petition asks that commissioners be appointed to assess her damages. The commissioners were appointed, and on January 28, 1904, they filed their report, awarding $808 to the defendant. Being notified of the filing of such report, the defendant, on February 5, 1904, filed her written exceptions thereto, stating that such award of the commissioners was inadequate compensation for her property taken and damaged by plaintiff, and asking that the report and award be set aside, and her just compensation for the taking and damaging of her property by the plaintiff be ascertained by a jury. Plaintiff filed reply to such written exceptions, "denying each and every allegation in said exceptions alleged."

The strip of land condemned for plaintiff's right of way ran east and west across the north end of defendant's 15-acre tract, and contained about 1.06 acres. Between the right of way and the extreme north end of said tract which bordered on the roadbed of the St. Louis & San Francisco Railroad was a strip 70 feet wide at one end and 17 feet wide at the other. The land was in side the limits of the city of Aurora, distant a few blocks from the business center, and had been mined for lead and zinc for over 15 years. There were several shafts sunk in the land, and a large amount of valuable ore had been extracted; but there had been no mining done on the land for a year previous to the trial. These shafts all lay south of the right of way, except one which had been sunk to a depth of about 60 feet in the strip condemned, but this produced little or no mineral; the formation being lime rock. None of the other mines were nearer than 150 feet to the right of way, and none of the drifts from said mines extended under any part of the strip in question. On the north part of defendant's tract of land were 11 "ordinary, cheap, frame buildings," three of which buildings were on the right of way, and one between the same and the St. Louis & San Francisco Railroad. The plaintiff removed the three cottages and placed them on another part of the tract, and partially repaired the damages done the cottages by the removal. The rental value of the 11 cottages, according to the evidence, was lessened to the extent of $27 per month by reason of the construction of plaintiff's road so near them. As a result of mining operations of previous years there was a large pile of "waste and tailing" on the strip appropriated for the right of way, and these surface deposits had been leased to two men who used hand jigs to extract ore therefrom, and paid a royalty to the defendant of 20 per cent. The revenue derived by the defendant from this source amounted to $600 in a period of two years. There was very little lead in these deposits, but there was considerable silicate extracted therefrom, which sold for $10 a ton. One of the men who worked in this way was given $37.50 by the commissioners to remove his jigs and abandon his claim to the pile of waste on the right of way. He testified that he wanted $50 for this, but rather than have a lawsuit he took the sum offered him.

Before the tract of which the strip in question formed a part was acquired by the defendant, the title was placed in her mother's name; but the defendant's father, Louis Pfau, looked after it for her. Mrs. Pfau sold the land to one Ed. T. Warren, a mining man of Cripple Creek, Colo., for the consideration of "one dollar and other valuable considerations," about the time of an attachment against the said tract; but it was denied that the property was put in his name on account of the attachment. Afterwards, the defendant, as her father testified, purchased the land from Warren by giving him therefor $35,000 of stock in a Cripple Creek mining corporation which had a total capital of $5,000,000. There was no mining done on the land since the purchase thereof by the defendant, and her only income therefrom was in the shape of rent for the little cottages and the small amount of royalty from the surface washings. The damages to the defendant and her land were variously estimated by the witnesses from $17,945, by Louis Pfau, to $250 or $300, by John A. Williams. One witness testified that it was questionable in his mind, considering the benefits to the land by the location of the railroad, whether the land was damaged at all or not. At the close of all the evidence in the case, the plaintiff offered, and the court admitted in evidence, the report of the commissioners, and it was admitted by counsel that defendant had received the amount of the award, $808. The cause being submitted to the jury, they returned the following verdict: "We, the jury, find the issues for the plaintiff." Thereafter, on March 15, 1905, the court entered judgment that "defendant take nothing by reason of her exceptions to the award of the commissioners," but that plaintiff recover of her its costs, and that "plaintiff is invested with the right to hold, use, and enjoy, for the uses and purposes of a right...