St. Louis, Keokuk & Northwestern Railway Company v. Clark

• Decision Date: 24 March 1894
• Citation: 25 S.W. 192,121 Mo. 169
• Parties: St. Louis, Keokuk & Northwestern Railway Company, Appellant, v. Clark et al
• Court: Missouri Supreme Court

25 S.W. 192

121 Mo. 169

St. Louis, Keokuk & Northwestern Railway Company, Appellant, v. Clark et al

Supreme Court of Missouri

March 24, 1894

Rehearing Denied 121 Mo. 169 at 195.

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed and remanded.

John G Chandler and G. A. Madill for appellant.

(1) It is not true as stated in instruction number 1 given for respondents that "the railroad company is entitled to the exclusive possession and control of its right of way across Clark's land; and neither Clark nor any one claiming said land, or any part thereof, has a right to cross said railroad tracks, except upon a street or alley." The appellant railroad company acquires only an easement in the strip of land in question -- the right to use it for railroad purposes. To the extent that the use of the land is necessary for railroad purposes, this right is paramount. But the right to the use of the land for all purposes consistent with this paramount right remains, where the title remains with the owners of the land. The right to cross the tracks from one part of his land intersected thereby to another, reasonably exercised so as not to interfere with the operation and safety of trains, is such a use. Const., art. 2, sec. 21; R. S., sec. 2611; Kellogg v. Malin, 50 Mo. 496; Belcher Co. v. Co., 82 Mo. 121; S. C., 101 Mo. 192; Railroad v. McGrew, 104 Mo. 282; Evans v. Haeffer, 29 Mo. 141; Lewis on Em. Dom., sec. 586; Railroad v. Wooten, 36 La. Ann. 441; Presbury v. Railroad, 103 Mass. 1; 2 Wood's R'y Law, p. 771; Railroad v. Waterbury, 23 Conn. 100; Railroad v. Allen, 22 Kan. 285; 31 Am. Rep. 190; Railroad v. Kregelo, 5 P. (Kan.) 15; Co. v. Co., 5 A. (N. J.) 227. (2) Respondent's tract of nearly forty acres is within the reason of the statute as to farm crossings. It is such a tract as appellant is required to fence to avoid liabilities imposed by the statute. 1 R. S., secs. 2611, 4428; Wymore v. Railroad, 79 Mo. 247. (3) The cases of Railroad v. Raymond, 33 N.W. 704; Railroad v. Miller, 125 Mass. 1, and Presbury v. Railroad, 103 Mass. 1, in no way conflict with appellant's position, for they turned on statutes making specific provision for crossings. (4) It was competent for the appellant, at the trial, to limit the easement to be condemned, by a declaration and stipulation providing for crossings for respondents over the land condemned; and the court erred in rejecting the declaration and stipulation offered for that purpose. Railroad v. Fletcher, 21 N.E. 577; Railroad v. Railroad, 105 Ill. 388; Hays v. Railroad, 54 Ill. 573; Packard v. Railroad, 25 A. (N. J.) 506; Carpenter v. Railroad, 24 N.J.Eq. 249; S. C., 26 N.J.Eq. 168; Lewis on Em. Dom., sec. 481; McGregor v. Gas Co., 21 A. 13 (Penn.) ; Coal Co. v. Fuel Co., 19 A. 933; 131 Pa. St. 522; Tyler v. Hudson, 147 Mass. 609; Railroad v. Owsley, 13 P. 186; Railroad v. Allen, 22 Kan. 285; Railroad v. Kregelo, 5 P. (Kan.) 15. (5) The case of Railroad v. McGrew, 104 Mo. 282, is not an authority for the proposition stated in defendants' instruction number 1, nor is the case of Jackson v. Railroad, 25 Vt. 159. Much less are these cases authority for the denial to the railroad company of a right to consent to crossings over the right of way condemned. Cohens v. Virginia, 6 Wheat. (U.S.) 399; Frantz v. Brown, 17 S. & R. 287, 292; Carroll v. Carroll, 16 How. 275, 286. (6) Evidence of prices obtained on specific sales of other property was not competent to show respondents' damages from the appropriation by appellant of their land. Springfield v. Schmook, 68 Mo. 394; Railroad v. Patterson, 107 Pa. St. 461; Railroad v. Vance, 115 Pa. St. 325; Stimson v. Railroad, 27 Minn. 284. (7) Testimony that witnesses Schnelle and Carpenter had been commissioners in the proceeding, or what they did in that character, was clearly incompetent. It was an indirect method of introducing the award of the commissioners in evidence, and was to defeat, practically, appellant's constitutional right to a jury trial. Const., art. 12, sec. 4; Railroad v. Miller, 106 Mo. 458; Railroad v. Town Site Co., 103 Mo. 451. (8) The witness, Geo. Muench, was competent to testify as to the effect on the market value of Clark's land of side track and switch connections with appellant's railroad; and it was error to reject him. 1 Greenl. on Ev., secs. 440, 440a. (9) It was error to declare, as was done in defendants' instruction number 2 as matter of law, that the construction of appellants' railroad had deprived that portion of Clark's land lying east of said railroad of the right to connect, by switches, with the merchants, terminal railroad. This was in conflict with defendants' evidence, and against the law. 1 R. S., sec. 2543. (10) There was no evidence before the court to warrant defendants' instruction number 3. (11) The court erred in permitting defendants to prove by the witnesses, Clark, Overall and Rainwater, an oral grant by the Merchants' Bridge Terminal Railway Company of an easement in its land for the construction and maintenance of railroad tracks and switches for the use and benefit of the defendants' land. (12) In a condemnation proceeding prior to judgment, no interest is allowable by the common law or by any statute of the state of Missouri. 1 Sutherland on Dam., secs. 533, 835, 610, 614; 11 Am. and Eng. Encyclopedia of Law, 379; 2 R. S., sec. 6561; R. S., secs. 5972, 5974, 4430, 224, 2734, 2736, 2738; Const., art. 2, sec. 21; Railroad v. Evans, 85 Mo. 333; Hamar v. Kirkwood, 25 Miss. 95; Close v. Field, 2 Tex. 232; Kenney v. Railroad, 63 Mo. 99.

Lee & Ellis and Rowell & Ferris for respondents.

(1) Clark's instruction number 1, denying him the right to cross the railroad tracks, except at a public crossing, is a correct statement of the law, as applied to the facts in this case. Railroad v. McGrew, 104 Mo. 282. First. A common law right of way was of three kinds only: right by grant, right by prescription, right of necessity. Chase's Blackstone, pp. 230-234. Right of necessity, originates only in absolute necessity, and never in inconvenience, however great. 2 Wash. on Real Prop., top p. 30. Second. The Missouri statute does not give Clark a crossing; it only provides for farm crossings. 1 R. S. 1889, sec. 2611. Duty of fencing and farm crossings enjoined by statute, does not apply to lands in incorporated cities or towns. Rhea v. Railroad, 84 Mo. 345; Edwards v. Railroad, 66 Mo. 561. The statute brings the matter within the rule: "expressio unius est exclusio alterius." It requires a statute to authorize even a municipal corporation to cross a railroad track. Railroad v. City, 29 N.E. 780. In the absence of a statute the railroad is entitled to the exclusive use and control of its tracks and right of way, and the landowner is denied the right of crossing. Railroad v. Greve, 17 Minn. 322; Railroad v. Holton, 32 Vt. 43; Railroad v. Skine, 7 Harris, 298; Jackson v Railroad, 25 Vt. 150; Railroad v. Potter, 42 Vt. 265; Brainerd v. Clapp, 10 Cush. 6; Railroad v. Combs, 51 Ark. 328; Presbury v. Railroad, 103 Mass. 1; Kasson v. Railroad, 8 Phila. 556; Railroad v. Chicago, 28 N.E. 720; Henry v. Railroad, 2 Iowa, 301; Brey v. Railroad, 103 Mass. --; Kyle v. Railroad, 2 Barb. Ch. 490; Railroad v. Meyers, 17 N.Y.S. 311; Quay v. Queen, 17 Can. S.Ct. 30. (2) The offer of two crossings made by the railroad company, at the trial before the jury in the case at bar, if treated as a grant or concession of rights of way was properly rejected. Damages to landowner in condemnation proceedings must be in money, and there can not be given or reserved to the owner any easements or privileges in the property condemned, such as the right to construct a way over it, in lieu of a money compensation. McGrew v. Railroad, 104 Mo. 282; Lewis on Eminent Domain, section 505, and cases cited; Railroad v. Holler, 7 Ohio St. 222; Railroad v. Melville, 66 Ill. 329; Railroad v. Munson, 57 Mich. 45; Chespeake v. Patton, 6 W.Va. 147; Railroad v. Halstead, 7 W.Va. 301; Hill v. Railroad, 7 N.Y. 152; In re Railroad, 2 N.Y.S. 479. (3) Even if the offer in court be construed as an attempted reservation out of the taking of property, or out of the condemnation proceedings, it was still inadmissible. First. The offer was made after Clark had given his evidence and rested his case, and was, therefore, out of time, and in the discretion of the court, was properly rejected. Second. Condemnation proceedings are to be strictly construed, and the requirements imposed by statute admit of no substitute or equivalent. Lewis on Eminent Domain, sec. 240; City v. Gleason, 89 Mo. 67, 72. Our statute requires that the property taken by the railroad company, and the full extent thereof, with or without reservations, must be fully described in the petition. 1 R. S. 1889, sec. 2734. Where a statute requires a description of the land taken, to be placed in the petition, this requirement must be exactly complied with, and the petition is the basis and limit of the railroad's right. Cedar Rapids v. Raymond, 33 N.W. 704; Ham v. City, 100 Mass. 350; Jury v. Railroad, 127 Mass. 584; Brey v. Miller, 125 Mass. 1. (4) Defendant is entitled to interest on the award from the date the same was paid into the circuit court. Plum v. City, 101 Mo. 529. Nor is this inconsistent with the rule laid down in the Fowler case. (5) That contracts within the statute are not void, but merely voidable, and that the party to be charged may waive the statute and the contract thereby become binding upon him is the settled law of this state. Huffman v. Ackley, 34 Mo. 277; Kratz v. Stocke, 42 Mo. 351; Maybee v. Moore, 90 Mo. 340; Aultman v. Booth, 95 Mo. 385. (6) The statute of frauds can not be taken advantage of by third persons. Cooper v. Hornsby, 71 Ala. 62; Christy v. Brien, 14 P. 248; ...