St. Louis, M. & S. E. R. Co. v. Aubuchon

• Decision Date: 21 November 1906
• Citation: 97 S.W. 867,199 Mo. 352
• Parties: ST. LOUIS, M. & S. E. R. CO. v. AUBUCHON.
• Court: Missouri Supreme Court

97 S.W. 867

199 Mo. 352

ST. LOUIS, M. & S. E. R. CO. v. AUBUCHON.

Supreme Court of Missouri, Division No. 1.

November 21, 1906.

1. EMINENT DOMAIN — CONDEMNATION PROCEEDINGS — DEPOSIT OF AWARD — COMMISSIONERS' REPORT — EXCEPTIONS—TRIAL BY JURY.

A deposit in court by the plaintiff in condemnation proceedings of the amount of damages awarded by the commissioners, its subsequent acceptance by the defendant, and the taking possession of the land condemned by plaintiff did not make the matter a finality, precluding the filing of exceptions by plaintiff to the commissioners' report, and a jury trial thereon.

2. TRIAL—RECEPTION OF EVIDENCE—NUMBER OF WITNESSES.

In condemnation proceedings, after the plaintiff had called three witnesses on the question of damages, which was the principal issue in the case, the action of the trial court in limiting the number of witnesses allowed each side on that issue to four was arbitrary and erroneous.

3. EMINENT DOMAIN — COMPENSATION FOR PROPERTY TAKEN—MEASURE AND AMOUNT

A tract of land adjacent to the Mississippi river, and an island, separated from such tract by a portion of the river, which island was owned by the owner of the tract, could not be considered together for the purpose of assessing damages on condemnation of land for a railroad right of way through the tract adjacent to the river, although the owner claimed that he purchased such tract to use in connection with the island for the purpose of using a sheltered nook in such tract as a protected feed lot for the cattle which, at other times, ran on the island, where nothing had been done to prepare the land for such use.

Appeal from Circuit Court, Ste. Genevieve County; Robert A. Anthony, Judge.

Condemnation proceedings by St. Louis, Memphis & Southeastern Railroad Company against Narcissus A. Aubuchon. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

L. F. Parker and John G. Egan, for appellant. Pipkin & Swink, for respondent.

LAMM, J.

On October 25, 1901, Narcissus A. Aubuchon purchased a parcel of land described as all of fractional section 11, township 39, Range 7 E., containing 56 99/100 acres lying in Ste. Genevieve county, for $2,000, and entered into possession. Thereafter, on September 5, 1902, the St. Louis, Memphis & Southeastern Railroad Company commenced proceedings in the circuit court of said county to condemn a right of way for a standard gauge railroad through said tract for a distance of 3,145 feet, taking therefor a strip 100 feet wide, containing 7.002 acres of land. On October 11th commissioners, duly appointed and qualified, reported Aubuchon's damages at $7,000, and further reported that plaintiff company should construct a 12-foot "underroad" crossing for Aubuchon in mitigation of damages claimed. This report was filed October 13th. Plaintiff company paid into court said award, and in due time filed exceptions to the commissioner's report. Thereafter Aubuchon accepted and took down the $7,000, and thereafter the court granted a jury trial on the exceptions of plaintiff to reassess the damages, and the plaintiff company took possession of the strip to construct its railroad. Before the assessment of damages by the jury Aubuchon filed a motion to strike plaintiff's exceptions from the record which motion was based on the theory that plaintiff had paid into court the said damages and afterwards took possession of the right of way, and Aubuchon had received the said sum and did not himself except to the report, but accepted the provisions thereof as a final adjustment of the matters set out in plaintiff's petition, and therefore the court had no further jurisdiction over the subject-matter of the action. This motion was overruled and Aubuchon excepted to the ruling. The jury awarded Aubuchon $8,000 damages; and, from a judgment upon that verdict, plaintiff after due steps appeals.

1. The first question presented is whether the tender into open court of the commissioners' award, $7,000, and its subsequent receipt by Aubuchon, resulted in making the matter a finality and subsequent steps of no account. Defendant's learned attorneys present an ingenious constitutional argument in favor of their view, and it may be conceded that, if the question was res nova, much might be said, and well said, on that theory, That was the view entertained by the St. Louis Court of Appeals in 1884. State ex rel. v. Lubke, 15 Mo. App. 152. But the whole matter was under exposition and elaborately considered in Rothan v. Railroad, 113 Mo. 132, 20 S. W. 892, and in St. L., K. & N. W. Ry. Co. v. Clark, 119 Mo. 357, 24 S. W. 157. The constitutional provisions relating to the exercise of the right of eminent domain, the right of trial by jury on the damages assessed, and the statutes enacted to give effect to these constitutional provisions were expounded in those cases, and the conclusion arrived at was adverse to the present contention of respondent. Those cases have been taken as settling this question in this state, whatever may be the rule elsewhere, and they have been followed. St. L. & K. C. Ry. Co. v. Donovan, 149 Mo., loc. cit. 103, 50 S. W. 286 et seq.; State ex rel. v. Fort, 180 Mo., loc. cit. 103, 79 S. W. 167 et seq.; Railroad v. Roberts, 187 Mo., loc. cit. 319, 86 S. W. 91 et seq. Accepting their authority without re-examining or seeking to disturb the reasoning upon which they rest, it must be held that plaintiff was entitled to deposit the amount of the award in court, and thereby become entitled to take possession of the strip and go on with its work, without losing its right to further litigate with defendant the amount of damages. For constitutional purposes (section 21, art. 2; section 4, art. 12) the award of the commissioners (until disturbed) was, prima facie, the just compensation to which defendant was entitled before his property was taken. But for statutory and final purposes just compensation is flexible enough to mean, and does mean, the final amount awarded by a jury on a fair trial (Rev. St. 1899, §§ 1266, 1268), and defendant may not preclude plaintiff's right to litigate the question of damages by accepting the commissioner's award, and putting the money in his pocket. The point must, therefore, be ruled against defendant 2. Plaintiff assigns error in the exclusion of testimony; the point arising nisi in this way: Having introduced three witnesses on the question of damages, the trial court, during the examination of the third witness on behalf of plaintiff, announced a rule to the effect that each side would be allowed only four witnesses on that issue, and, applying the rule to the then condition of plaintiff's proof, allowed only one other witness to plaintiff on that issue. Plaintiff tendered other witnesses on that issue, but they were excluded. Plaintiff excepted to to the rule when announced and excepted to its application when made. Subsequently defendant, while putting in his case, tendered several witnesses in excess of the number prescribed, but they were not allowed to testify, and the defendant excepted. Defendant, however, took no appeal and filed no bill of exceptions, and, though the ruling was to the mutual dissatisfaction of both parties litigant, yet defendant's discontent was apparently allayed by the verdict, whereas plaintiff's seems to be inflamed thereby. Thus is Beaumont & Fletcher's dictum in Love's Cure (Act III, scene 2), shown to be well grounded, viz.:

                       "What's one man's poison, signor
                  Is another's meat or drink."
                

Was the ruling below right? We think not. The issue of damages was the main issue in the case. That trial courts are allowed a discretion ought not to be gainsaid. The most irritating and unjustifiable delays would arise if trial courts had no discretion —were left to the volatile caprice of counsel alone. On collateral and incidental issues, as, for example, the general reputation of a witness, or an issue upon a motion for a change of venue, or for costs, etc., it is a wise and a settled rule to allow trial courts wide discretion; and error predicated upon the exercise of such discretion should be palpable and manifest to be held prejudicial. Nor will we lay down any hard and fast rule circumscribing the power of trial courts, in the economy of time and dispatch of business, to put some reasonable bounds on the introduction of witnesses on a main issue in a civil suit, especially so where the evidence on a single point is not controverted, or where it is distinctly cumulative in quantity and quality. But evidently the matter should be approached with caution, and an arbitrary rule allowing four witnesses to a side in a damage suit upon the issue of damage or no damage cannot be defended. Much less can it be defended when the rule is made and applied (as here) after three witnesses have been placed upon the stand by one party. Picking and choosing become a vital matter under such rule, and even-handed justice requires that both parties have fair forewarning and the full privilege to pick and choose. This privilege was denied plaintiff, and thereby defendant had a distinct advantage, because, after the rule, plaintiff had but one choice, while defendant had four. But on principle the rule was arbitrary, and, we think, unreasonable. Defendant's damage might be composed of many elements and one witness might be qualified on one element and another witness on another. Not only so, but there is a great difference between witnesses; and counsel, however wisely they may select, may ride to a fall on a given witness. His manner may be disappointing on the witness stand, his capacity to tell what he knows may have been miscalculated, his voice may lack a note of sincerity, he may not stand the fire of a searching cross-examination, a yawn, a furtive glance of the eye, a shrug of the shoulders, impatient or impertinent remarks, a foolish reason given, or any one of many other supposable lapses or inadvertences,...