St. Louis, K. & N. W. R. Co. v. St. Louis Union Stock-Yard Co.

• Decision Date: 27 February 1894
• Court: Missouri Supreme Court
• Parties: ST. LOUIS, K. & N. W. R. CO. v. ST. LOUIS UNION STOCK-YARD CO.

25 S.W. 399

120 Mo. 541

ST. LOUIS, K. & N. W. R. CO. v. ST. LOUIS UNION STOCK-YARD CO.

Supreme Court of Missouri, Division No. 2.

February 27, 1894.

EMINENT DOMAIN — DAMAGES — EVIDENCE — BENEFITS.

1. Evidence whether such tracts as defendant's are in demand is competent on the question of value.

2. A witness can only give his opinion as to the market value of the property, not its particular value to the owner.

3. A witness who states that he is acquainted with the property, and able to express an opinion of its value, may give his opinion of the value, and of the damage to the property.

4. A witness qualified by experience at other places may give his opinion as to methods and facilities in such a business as the owner is doing on the premises through which the right of way is taken, but cannot state facts in regard to his own business.

5. A witness having given his opinion that if an embankment were built along the river front of the property it would be hard to land steamers there, and he did not think wharves could be satisfactorily built there, it was proper, before asking his opinion of the value to the property of its riparian rights, to bid him assume that the owner might build a wharf out to the navigable part of the stream.

6. An instruction calling the jury's attention to certain elements of damages claimed, and omitting others, is erroneous.

7. If, notwithstanding the switch facilities existing before the road was located, the part of the land not taken is increased in selling value by peculiar and direct benefits to that part resulting from the location and building of plaintiff's road and the right to switch connection therewith, it is immaterial whether the former use of the premises can be continued after the road is built.

8. An instruction that if the value of the peculiar benefits resulting to the residue equaled the value of the strip taken and the damage resulting to the residue, — that is, if the value of the residue after the building of the railroad on the strip, and as a result of the direct and peculiar benefits resulting therefrom, was equal to the former value of the entire tract, — the verdict should be for plaintiff, was erroneous, as assuming the controverted fact that there were some such benefits.

9. Where a railroad condemning a right of way through stock yards does not offer, either in its petition or on the trial, to reserve to the owner a crossing or driveway not required by statute, the fact that it permits the use of such a way under its track cannot mitigate the damages, since it is entitled to the use of its whole right of way for railroad purposes, and may revoke such permission at any time. Railroad Co. v. Clark, 25 S. W. 192, followed.

Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Proceeding by the St. Louis, Keokuk & Northwestern Railroad Company against the St. Louis Union Stock-Yard Company to condemn a right of way. On the railroad's appeal from the award of commissioners, the cause was tried in the circuit court before a jury, and judgment entered on the verdict for defendant. Defendant appeals. Reversed.

Campbell & Ryan, for appellant. John G. Chandler, for respondent.

BURGESS, J.

This proceeding was instituted by plaintiff to condemn for its right of way a strip of land 50 feet in width by 555 feet in length, lying parallel with, and 11 feet east of, the west wharf line, as established by Ordinance 5403 of the city of St. Louis, said strip being a part of a tract of land owned by defendant, containing about 27 acres. Twenty-two acres of this property is bounded on the north by Bremen avenue, on the east by the Mississippi river, on the south by the property of Knapp, Stout & Co., and on the west by Hall street. Five acres owned by defendant, and used in connection with the 22 acres, lie west of Hall street, fronting on Bremen avenue, and extending south 550 feet, making 27 acres in all owned and used for stock-yard purposes. The two tracts are separated by Hall street. The 22-acre tract is low, bottom land, about 8 or 9 feet below the grade of Bremen avenue and Hall street. Near the west wharf line it is protected by a levee of the same elevation as Bremen avenue, and extending therefrom so as to connect with a levee of corresponding elevation of Knapp, Stout & Co. East of the levee the land slopes to the river. West of the levee, and covering most of the ground to Hall street, there were stock sheds and pens, an hotel, offices, and other structures suitable to a business of that sort. From the top of the levee, eastward towards the river, there was erected on piles a roofed structure called a "runway," "driveway," or "cattle chute," through which stock was driven to and from the yard in shipping and receiving from the river. On Bremen avenue, near the river, and east of the right of way, were a slaughterhouse and grain elevator. On the south, or line of Knapp, Stout & Co., also on piles, was a long wooden building, — a salt warehouse, — reaching to ordinary low water on the east, and extending on the west beyond the east line of the right of way, 65 feet on the north side, and 45 feet on the south. Within the right of way was a rendering house. The land was well improved for the purposes for which it was used, there having been erected thereon all necessary structures and conveniences in modern use for such a business enterprise. The property had a private switch connecting with the Wabash road, running along its south side from Hall street, which furnished facilities for loading and unloading cattle, and for connecting with all other roads coming into the city of St. Louis, and with the two transfer railways which connected with roads on the east side of the Mississippi river. This switch was used for the purposes of transporting cattle to and from the stock yards, and for the purpose of carrying grain to and from this grain elevator on the property. The defendant constructed its building with unloading chutes to receive cattle from cars on this switch, and the chutes were capable of taking 23 cars at one time. This same switch could have been turned so as to accommodate the eastern part of the property with railroad facilities under the control of defendant, from the south side of its property to its north, or Bremen avenue, side. The Merchants' bridge comes down onto the level of Hall street about 500 feet above Bremen avenue. The St. Louis Transfer Railway Company's tracks (otherwise called the Wiggins Ferry Transfer) run on Hall street, which separates the two parcels of land used by appellant for stock-yard purposes. The St. Louis Merchants' Bridge Terminal Railway Company connects with the Merchants' bridge where it reaches Hall street, between the two parts of defendant's property; the Transfer Railway Company's tracks being in the middle of the street, and the Merchants' Bridge Terminal Railway tracks, one on each outer side of them. These are both switching railway companies, and under their respective ordinances are required to give switch connections with establishments adjacent to their lines, when ordinances authorizing such connections are passed by the municipal assembly of St. Louis. There is a track running along the edge of defendant's ground on the west side of Hall street, and used as a joint switch by the St. Louis Transfer Railway Company and the Merchants' Bridge Terminal Railway Company for unloading stock in that part of appellant's yard. Before the right of way was taken from defendant's front, it had quite a large river business, which was interfered with by reason of its river front being, in a manner, cut off from the remainder of the land. Defendant also had a driveway to the river, running through the entire length of its yards, which, so far as it then existed, was entirely cut off by the roadbed. Plaintiff, however, laid iron girders, 35 feet long, over the runway which extended from defendant's main alley in its yards to the river, leaving a space of a few feet between the bottom of the girders and the roadway of defendant's driveway to the river. The driveway under the girders was used by defendant after the construction of the roadbed. The roadbed cut off a pump of defendant, by which water from the river was supplied for all its stock pens. The evidence showed that, by reason of a condemnation of the strip of land, defendant was put to large expense in moving its buildings; damaged by being cut off from its river front; water supply; drainage; increased expense in conducting its business, etc., — aside from the damages to the tract of land and the strip taken for the roadbed. As is usual in such cases, there was a wide difference in the opinion of witnesses as to the amount of damages sustained by defendant. As a fair illustration, it may not be improper to state that the commissioners who were appointed to assess the damages fixed the amount at $49,280, while the jury fixed them at $14,500, with $622.50 interest, amounting, in the aggregate, to the sum of $15,123.50, for which amount judgment was rendered for defendant. The case is here on defendant's appeal.

William G. Clark, a witness for defendant, was asked the following questions: "Q. Are those large tracts in demand, or are they few? Q. Are the switching facilities of that property ample for all lumber yards, all stock-yard purposes? Q. As to lumber yards, you are familiar with lumber yards, are you not? Q. What was the effect of the construction of the Merchants' bridge upon the value of the property in that part of the city?" Objections were made to all those questions, and sustained by the court. The first question should, in our opinion, have been permitted to be answered, as the answer might have been very material with respect to the value of the property. If there was no demand for such property, it could have had no marketable value, which, if there was a demand for it, it necessarily follows that it did have such a...