St. Louis, M. & S. E. R. Co. v. Drummond Realty & Invest. Co.

• Decision Date: 29 June 1907
• Citation: 103 S.W. 977,205 Mo. 167
• Court: Missouri Supreme Court
• Parties: ST. LOUIS, M. & S. E. R. CO. v. DRUMMOND REALTY & INVESTMENT CO.

103 S.W. 977

205 Mo. 167

ST. LOUIS, M. & S. E. R. CO. v. DRUMMOND REALTY & INVESTMENT CO.

Supreme Court of Missouri, Division No. 1.

June 29, 1907.

1. EMINENT DOMAIN — PROCEEDINGS TO ASSESS COMPENSATION — EXCEPTIONS TO AWARD.

Though a condemning corporation pays into court the amount of the commissioner's award as a condition precedent to its taking possession, and the money so deposited is taken by the owner of the land in question, either party may file exceptions to the commissioner's award within the time prescribed and litigate the question of damages to a final judgment.

2. SAME — RIGHT TO ASSESSMENT BY JURY.

Const. Mo. art. 2. § 21 [Ann. St. 1906, p. 148], provides that public property shall not be taken for private use without just compensation to be ascertained by a jury or board of commissioners. Rev. St. 1899, § 1266 [Ann. St. 1906, p. 1037], provides for the ascertainment of damages by a board of three commissioners instead of by a jury. Const. Mo. art. 12, § 4 [Ann. St. 1906, p. 302], provides that the right to trial by jury shall be held inviolate in all trials for claims of compensation when, in the exercise of the right of eminent domain, any corporation shall be interested either way. Held that, though condemnation proceedings may be commenced by the appointment of commissioners, if either party demands a jury to reassess the damages, the court must award a jury.

3. SAME — ASSESSMENT BY JURY — INSTRUCTIONS — DAMAGES TO ENTIRE TRACT.

On a trial of the question of damages in condemnation proceedings, where there was evidence that the tract of land of which a part was taken should be considered as one body, though it was crossed by two roads, it was not error to instruct that if the jury found that the entire tract was used and occupied as one body and constituted one tract, then in estimating the damages they should consider the depreciation, if any, in the market value of the whole tract.

4. SAME — OWNERSHIP AS ONLY EVIDENCE OF ENTIRETY.

On a trial of the question of damages in condemnation proceedings, where it appeared that a tract of land was crossed by two roads, but there was no evidence that the roads effected such a division into separate bodies that there was no entirety feature except the ownership, it was not error to refuse to instruct that, if the jury believed that the land was divided into three separate bodies by public roads in such manner that there was no other connection between them than that all was the property of one owner, they should not allow damages to any such bodies as were not damaged by the taking of the part condemned.

Appeal from Circuit Court, Gasconade County; William A. Davidson, Judge.

Condemnation proceedings by St. Louis, Memphis & Southeastern Railroad Company against the Drummond Realty & Investment Company. From a judgment for defendant in the circuit court on exceptions to the award of the commissioners, plaintiff appeals. Affirmed.

L. F. Parker and John W. Booth, for appellant. James L. Minnis, for respondent.

VALLIANT, J.

This is a proceeding begun in the circuit court of St. Louis county by the plaintiff railroad company to condemn a right of way for its railroad through land of the defendant in that county. The commissioners made their report assessing defendant damages at $9,470, which amount plaintiff paid into court and took possession of the land. In due time defendant filed exceptions to the report, and demanded a jury to assess the damages. Afterwards defendant demanded of the clerk the money paid into court, and it was delivered to him. When the exceptions came on to be heard, the court sustained the same, and ordered a new assessment of damages to be made by a jury. On application of plaintiff the venue was changed to Gasconade county. The cause was tried in the circuit court of that county with the result of a verdict of the jury assessing defendant damages at $22,500, whereupon the court rendered judgment for defendant for $13,030, being the amount of the jury's award less $9,470 the amount of the commissioner's report which the defendant had already received. From that judgment the plaintiff has appealed.

1. Plaintiff's first proposition is that defendant having accepted the damages awarded by the commissioners that was the end of the controversy, and there was nothing left for trial by the jury. This court has already decided that point against the plaintiff's contention in several cases; the last one being a case in which this plaintiff was a party. St. Louis, Memphis & S. E. R. R. Co. v. Aubuchon, 199 Mo. 352, 97 S. W. 867. The law is that the condemning corporation shall pay the amount of the commissioner's award into court as a condition precedent to its taking possession of the land, and upon such payment the corporation may take possession and proceed with the construction of its road, and at the same time the owner of the land so taken or damaged may take the amount of money so deposited, but the payment of the award into court does not preclude the corporation, nor does the receiving of it by the landowner preclude him, from further litigating the question of the amount of compensation. Notwithstanding such payment into court by the plaintiff, and such receiving of the amount by the defendant, either party may, within the time prescribed, file exceptions to the commissioner's award and litigate the ad quod damnum question to a final judgment. Rothan v. Railway, 113 Mo. 132, 20 S. W. 892; St. Louis, etc., Ry. v. Clark, 119 Mo. 357, 24 S. W. 157; St. Louis, etc., Ry. v. Fowler, 142 Mo. 670, 44 S. W. 771; ...