St. Louis, K. C. & C. R. Co. v. Lewright

• Decision Date: 31 January 1893
• Citation: 113 Mo. 660,21 S.W. 210
• Court: Missouri Supreme Court
• Parties: ST. LOUIS, K. C. & C. R. CO. v. LEWRIGHT et al.

21 S.W. 210

113 Mo. 660

ST. LOUIS, K. C. & C. R. CO. v. LEWRIGHT et al.

Supreme Court of Missouri. Division No. 2.

January 31, 1893.

EMINENT DOMAIN — FOREIGN CORPORATIONS — COSTS.

1. Rev. St. 1889, § 2568, provides that any railroad company organized and existing under the laws of any other state may extend and operate its railroad into and through Missouri, and shall possess all the rights, powers, and privileges, and be subject to all the duties and liabilities, of a corporation organized in Missouri. Held, in a proceeding by a foreign corporation to condemn land in Missouri for a right of way, that it was not essential to aver or prove that the corporation had built its line of railroad to the boundary line of the state in order to give the court jurisdiction of the subject-matter of such proceedings.

2. A petition in such proceedings which gives the exact point where the road enters the land, the general course of the road, the point of exit, the width of the strip to be taken, and the quantity of land to be taken, sufficiently shows what land is intended to be condemned.

3. In such proceeding, the award of the commissioners appointed to assess damages was set aside on motion of plaintiff, and trial had by a jury to assess the damages. Held, that the taxing of costs of the proceedings, against defendant, accruing after the report of the commissioners was set aside, was matter of record, and not of exception, and will be noticed on appeal, though no bill of exception was filed thereto by defendant.

4. The action of the trial court in taxing costs that accrued after the report of the commissioners was set aside against defendant, and ordering that such cost be deducted from the amount allowed as damages on the trial by jury, was error, such costs being properly taxable against plaintiff.

Error to St. Louis circuit court; W. W. Edwards, Judge.

Proceeding by the St. Louis, Kansas City & Colorado Railroad Company against William Lewright and others to condemn land belonging to defendants for a right of way. There was a judgment awarding defendant William Lewright $1,350 damages, and decreeing that he pay the costs of the proceedings. Defendant Lewright brings error. Modified.

John W. Booth, for plaintiff in error. E. D. Kenna and L. F. Parker, for defendant in error.

BURGESS, J.

This is a proceeding commenced by the defendant in error in the circuit court of Franklin county against the plaintiff in error for condemnation of a right of way through certain lands of plaintiff in error, described in the petition. Inasmuch as a point is made by plaintiff in error on the sufficiency of the petition, we here set it out in full, omitting parts not here material. "St. Louis, Kansas City and Colorado Railroad Company, of the State of Kansas, Plaintiff, vs. William P. Lewright, James M. Lewright, Elijah McLean, and I. B. Kitchen, Defendants. The plaintiff states that it is a corporation duly organized and existing under the laws of the state of Kansas for the purpose of constructing and maintaining a standard gauge railroad from a point in the western line of Seward county, in said state of Kansas, near the center of said line eastwardly through the counties of Seward, Ford, Comanche, Barbour, Harper, Sumner, Cowley, Choutaque, and Linn, Elk, Wilson, Neosho, Crawford, and Bourbon, in said state of Kansas, to a point in the eastern line of said Linn county, near the center of said line; thence through the state of Missouri, eastwardly through the counties of Vernon, Bates, Henry, Johnson, Cass, and Jackson, in the state of Missouri, to the Union Depot in Kansas City, and said Jackson county, and from the point where said railroad runs northwestwardly to Kansas City, aforesaid, eastwardly through the counties of Henry, Miller, Osage, Maries, Gasconade, Franklin, St. Louis, to and into the city of St. Louis, Missouri, to, through, and along the Union Depot in said city of St. Louis, to the west bank of the Mississippi river at said city of St. Louis. The plaintiff, as authorized by the laws of the said states of Kansas and Missouri, is about to construct, operate, and maintain, and is now constructing, with the design and intention of operating and maintaining, a standard gauge railroad over that part or portion of said road survey which passes through said county of Franklin, Missouri, in a general southwesterly direction from the town of Labadie, in said county, to the town of Union, in said county. That plaintiff has caused to be made an amended profile map of the route surveyed and adopted by plaintiff of that part of said railroad line in said Franklin county between the said towns of Labadie and Union. That said amended profile map, made, certified to, and filed in the office of the clerk of the county court of said county, as aforesaid, shows the actual survey, location, and distance of the roadbed through the several lots and tracts of land, and the congressional sections through which the road runs, and the number of miles, main, and tracks of said road on said portion of said railroad line in said part of said county. That your petitioner has given written notice to all actual occupants of the lands hereinafter described, of the defendants, over which the route of said railroad has been relocated and designated as aforesaid, of the location of said road through the same as shown by said amended profile map. Plaintiff further states that as a common carrier, and for the public benefit and convenience, it needs and seeks to acquire for the purposes aforesaid, and for the additional purposes of cutting and embankments, necessary for the proper construction and security of said railroad, a strip of land of the uniform width of one hundred feet, in the following described tracts and parcels of land, situated in said county of Franklin, between the said towns of Labadie and Union, through and over which said railroad route is surveyed and located as aforesaid, with the courses of said roadbed and the number of acres and parts of acres sought to be appropriated, and which land is owned by the defendant William P. Lewright, to wit: The...