St. Louis & K. C. Ry. Co. v. Donovan

• Decision Date: 07 March 1899
• Citation: 50 S.W. 286,149 Mo. 93
• Court: Missouri Supreme Court
• Parties: ST. LOUIS & K. C. RY. CO. v. DONOVAN et al.

50 S.W. 286

149 Mo. 93

ST. LOUIS & K. C. RY. CO. v. DONOVAN et al.

Supreme Court of Missouri, Division No. 1.

March 7, 1899.

EMINENT DOMAIN — JURISDICTION — PROCEDURE — DAMAGES — WITHDRAWAL OF DEPOSIT — JUDGMENT.

1. After hearing and condemnation proceedings, appointment of commissioners, payment of damages into court, and after defendants had, in pursuance of summons, voluntarily appeared and participated in the proceedings, plaintiff cannot object that the summons was improperly issued.

2. As either party in condemnation proceedings has a right to verdict of a jury on the amount of damages, where defendant demands a jury on refusal of plaintiff so to do he is entitled to open and close.

3. Where, in estimates of damages, witnesses included improper elements, and the extent of these matters was shown by cross-examination, and, at the instance of plaintiff, excluded from the jury, and the true measure of damages given by instructions, plaintiff has no right to complain.

4. In condemnation proceedings, defendants have a right to withdraw money deposited in court pending a proceeding for the reassessment of damages.

5. A judgment in condemnation proceedings need not contain a formal decree condemning the land for public use and vesting the easement in plaintiff.

6. Where money is paid into court in accordance with the commissioners' report, and the damages are subsequently assessed by the jury, the judgment should follow the verdict of the jury, and the amount deposited in court should not be deducted therefrom.

Appeal from circuit court, Johnson county; W. W. Wood, Judge.

Condemnation proceedings by the St. Louis & Kansas City Railway Company against Dennis Donovan and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Geo. P. B. Jackson, for appellant. O. L. Houts, for respondents.

BRACE, P. J.

This is an appeal from a judgment in favor of the defendants upon a verdict assessing their damages at the sum of $2,900, in a condemnation proceeding instituted by plaintiff in the circuit court of Johnson county. The proceeding was begun by petition filed by the plaintiff in the office of the clerk of that court on the 22d of July, 1895, upon which a summons was issued returnable before the judge of said court on the 8th of August, 1895, and served upon the defendants on the 26th of July, 1895. On the 8th of August, 1895, the following proceedings therein were had: "In the Circuit Court of Johnson County, Missouri, in Vacation. The St. Louis and Kansas City Railway Company, Plaintiff, vs. Dennis Donovan, Frank Donovan and Connecticut Mutual Life Insurance Company, Defendants. Before the Honorable W. W. Wood, Judge of Said Court, at Chambers. Now, on this 8th day of August, 1895, comes the above-named plaintiff, the St. Louis & Kansas City Railway Company, by its attorney, and presents its petition for condemnation of the right of way for the railroad of said company through, across, and over the land of the defendant Dennis Donovan; and it appearing to me that the said defendants have been served, more than ten days prior to this date, with a copy of the summons issued in this cause, directing them to appear before me at chambers, in the city of Warrensburg, in Johnson county, Missouri, at this time, together with a copy of the petition filed in this proceeding; and the said defendants appearing in person and by attorney; and the matter being taken up in pursuance of the notice given in said summons; and I, the said judge, having heard the evidence produced by the plaintiff and defendants, and being fully advised in the premises, — find that the defendant Dennis Donovan is the owner of the land described in the petition as belonging to him, to wit: The southwest quarter of the northwest quarter of section twenty-four (24), and the southeast quarter of the northeast quarter, and the north half of the southeast quarter, of section twenty-three (23), township forty-four (44), range twenty-five (25), in Johnson county, Mo. And I further find that the defendant Frank Donovan is residing upon and cultivating the said land as a tenant under the said Dennis Donovan. And I further find that the defendant the Connecticut Mutual Life Insurance Company is the beneficiary in a deed of trust given by the said Dennis Donovan and wife to Edward S. Rowse, as trustee, to secure to the said Connecticut Mutual Life Insurance Company the payment of the debt mentioned in the said deed of trust. And I further find that the said Edward S. Rowse has died since the making of the said deed of trust, and no other person has been appointed trustee in his place, and therefore the plaintiff is unable to make any one a party defendant as trustee. And that the plaintiff requires a strip of land across and over the said tract of land belonging to the defendant Dennis Donovan, as particularly described in said petition, as follows: A strip of land, 100 feet wide, running in a southwesterly direction through the above-described land, for the purpose of right of way proper, together with an additional strip, twenty-five feet wide and 1,000 feet long, on each side of said 100-foot strip, and about midway of the length of said right of way, for the purpose of constructing an embankment, all more particularly described as follows: * * *. And I, the said judge, further find that the plaintiff has endeavored to agree with the defendants Dennis Donovan and Frank Donovan concerning the compensation that shall be paid to them on account of the appropriation and use of said land for railway purposes, and on account of the damage, if any, to the other portion of said land belonging to the defendants Dennis Donovan and Frank Donovan. And I further find that the plaintiff and the said Dennis Donovan and Frank Donovan cannot agree in regard to the said compensation which should be paid by the plaintiff to the said defendants Dennis Donovan and Frank Donovan, for the purpose and on account of the matters aforesaid. And I further find that the use for which the plaintiff desires and seeks to acquire said tract of land from the defendants is a public use, and that the plaintiff is entitled to appropriate the said tract of land for the purposes of constructing and operating the railway described in the petition, and known as the `St. Louis & Kansas City Railway,' and it is entitled to have an assessment of the compensation and damages, if any, which should be paid by the plaintiff to the defendants on account of the appropriation and use of said land for the purpose aforesaid. Wherefore I, the said judge, do hereby appoint A. S. Mayes, James...