St. Louis, Memphis & Southeastern Railroad Co. v. Aubuchon
| Decision Date | 21 November 1906 |
| Parties | ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant, v. AUBUCHON |
| Court | Missouri Supreme Court |
Appeal from Ste. Genevieve Circuit Court. -- Hon. Robt. A. Anthony Judge.
Reversed and remanded.
L. F Parker and John G. Egan for appellant.
(1) To constitute a body of land a single tract, for the purpose of assessing damages to the entire tract on account of the taking of a right of way thereupon for a railroad company the tract must have been used in common for a single joint purpose before the condemnation proceedings, and if such unity of use has not existed, damages should not be allowed to the entire tract. Railroad v. Doran, 15 Minn. 230; White v. Railroad, 154 Ill. 620; Sharp v. U.S. 191 U.S. 341; Railroad v. Wilkins, 45 Kan. 674; Gibson v. Fifth Av. Bridge Co., 192 Pa. St. 55; Railroad v. Norcross, 137 Mo. 415; Lake Ry. & Nav. Co. v. Xavier Realty, 115 La. Ann. 328. And this proposition was assumed in the following three cases: U. Elev. Co. v. Railroad, 135 Mo. 353; Reisner v. Railroad, 27 Kan. 382; H. B. Co. v. Schaubacher, 57 Mo. 582. (2) An intention to use a tract of land in common in the future will not make it a single tract for the purpose of assessing damages on account of the condemnation of a railroad right of way thereupon. The land must already have been devoted to a single use, and the plan or intention to devote it to a single use will not constitute it a single tract. White v. Railroad, 154 Ill. 620; Peck v. Railroad, 38 Minn. 343; Gibson v. Fifth Av. Bridge Co., 192 Pa. St. 55; Goodwine v. Evans, 134 Ind. 262; Lake Ry. & Nav. Co. v. Xavier Realty, 115 La. Ann. 328. (3) Where a strip of land owned by a third party in fee divides a tract, damages cannot be obtained to the entire tract on account of the condemnation of a railroad right of way upon one part of it. Cameron v. Railroad, 42 Minn. 75; Railroad v. Littler, 79 P. 114; Lake Ry. & Nav. Co. v. Xavier Realty, supra. (4) The bed of a river is the part which shows the usual effect of water, and by the character of the soil, and whatever vegetation may spring up thereupon, is distinguished from the banks and the land back of the banks. Railroad v. Ramsey, 53 Ark. 314; Howard v. Ingersoll, 54 U. S. (13 How.) 381. (5) Low water mark is the boundary made by water at its ordinary low stage, and not the edge of the water at an extraordinarily low stage. McBurney v. Young, 67 Vt. 574; Kentucky Lumber Co. v. King, 23 Ky. Law Rep. 1422; Stover v. Jack, 60 Pa. St. 339. (6) A riparian land owner does not acquire title to an island which springs up in the river opposite his land. Cooley v. Golden, 117 Mo. 33; Crandall v. Smith, 134 Mo. 633; Moore v. Farmer, 156 Mo. 33; Stover v. Jack, 60 Pa. St. 339. (7) It is an abuse of discretion for a court on a controverted question of any importance, and particularly on the principal question in a case where much is involved, to limit the number of witnesses on a side to four. Nelson v. Wallace, 57 Mo.App. 397; Fenwick v. Bowling, 50 Mo.App. 516; State v. Whitten, 68 Mo. 91; White v. Hermann, 51 Ill. 243; Railroad v. Matula, 79 Tex. 580; Underhill on Evidence, sec. 381; Markham v. Herrick, 82 Mo.App. 327. (8) Where the court limits the number of witnesses on a side, it should so notify the parties before the introduction of any testimony. Markham v. Herrick, 82 Mo.App. 327; Green v. Ins. Co., 134 Ill. 310.
Pipkin & Swink for respondent.
(1) (a) The damages to which defendant is entitled is the difference between what was the fair market value of the whole tract before, and what its value will be after the appropriation, in view of the uses to which the land appropriated is adapted. Welsh v. Railroad, 19 Mo.App. 127; Railroad v. Baker, 102 Mo. 553; Railroad v. McGrew, 104 Mo. 282; Railroad v. Valcins, 90 Mo. 538; 10 Am. & Eng. Ency. Law (2 Ed.), 1103, 1164; Mississippi River Bridge Co. v. Ring, 58 Mo. 491; Lewis on Em. Dom., sec. 479. (b) It has been held proper for a jury to consider "all incidental loss, inconvenience and damages, present and prospective, which may be known or may reasonably be expected to result from the construction and operation of the road in a legal and proper manner." Lewis on Em. Domain, sec. 480a; 10 Am. and Eng. Enc. Law (2 Ed.), 1169, 1170; Railroad v. Story, 96 Mo. 622; Railroad v. Dawley, 50 Mo.App. 480. (c) It seems that even in those cases where a remedy is provided for injuries caused in the operation of the road, yet such injuries should be taken into account in assessing damages where a part of a tract is taken in condemnation proceedings in so far as they tend to depreciate the value of the remainder. Mathews v. Railroad, 121 Mo. 338; Railroad v. McGrew, 104 Mo. 294; Lewis on Em. Domain, sec. 497; Mills on Em. Domain, secs. 163, 166. (d) Parcels of land used and cultivated as a unit, although separated by a road, a canal, or a county line, are considered a single tract, damages to which must be taken into consideration by the commissioners. Lewis on Em. Domain, sec. 475; 10 Am. and Eng. Ency. Law (2 Ed.), 1166; Railroad v. Waldo, 70 Mo. 629; Bridge Co. v. Schubacher, 57 Mo. 582; Railroad v. Norcross, 137 Mo. 415; U. Elev. Co. v. Railroad, 135 Mo. 415. (e) The tendency of late is toward a more liberal allowance of consequential damages than formerly. 10 Am. and Eng. Ency. Law (2 Ed.), 1106. (2) Denying that the court erred in limiting the number of witnesses as to the question of damages to four on each side, and denying further that there was any unfairness shown or resulted, respondent asserts that since this point was not preserved in appellant's motion for new trial, it will not for that reason be considered by this court. Standard Milling Co. v. Railroad, 122 Mo. 258. (3) When the company takes the land and the land-owner takes the money without excepting, can the railroad company file its exceptions and have them heard against the consent of the land-owner? Const. 1820, art. 13, sec. 7; Const. 1865, art. 1, sec. 16; Wag. Stat. p. 327, sec. 314; State v. Dickson, 3 Mo.App. 466; State v. Lubke, 15 Mo.App. 164; Ring v. Bridge Co., 57 Mo. 498; Const. 1875, art. 2, sec. 21; secs. 1266, 1268, R. S. 1899; 10 Am. and Eng. Ency. Law (2 Ed.), 1050; Black's Const. Law, p. 259; Musick v. Railroad, 114 Mo. 309; Chouteau v. Railroad, 122 Mo. 375. (4) (a) The general rule is that private property can not be taken for public use until compensation is actually paid or tendered. 10 Am. and Eng. Ency. Law (2 Ed.), 1137; Walther v. Warner, 25 Mo. 277; Bradley v. Railroad, 91 Mo. 493. (b) Since a citizen is entitled as an individual to the enjoyment of his property, and the disposal of it on his own terms, and the exercise of the right of eminent domain is in derogation of these rights, and can be justified only on the ground of necessity, the power of depriving him of it, even with payment at an estimate fixed by others, is most extraordinary, and the right should be construed with the greatest strictness. Ellis v. Railroad, 51 Mo. 200; State v. Farelly, 36 Mo.App. 282; Belcher Sug. Ref. Co. v. St. L. G. El. Co., 82 Mo. 121; Thompson v. Railroad, 110 Mo. 147; Railroad v. Clark, 119 Mo. 357. (c) A corporation in the exercise of the right of eminent domain can not take possession of the condemned land until the damages assessed have been paid to the owner or into the court for him. State v. Lubke, 15 Mo.App. 161; Snyder v. Cowan, 50 Mo.App. 436; Railroad v. Clark, 119 Mo. 357. (d) When constitutions fix the time of payment legislatures are powerless to change the time. 2 Lewis, Em. Domain, sec. 454. (e) Where the amount awarded by the commissioners has been paid into court for the owner, title to said money passes at once to the land-owner. Snyder v. Cowan, 120 Mo. 389; Railroad v. Eubanks, 130 Mo. 272. This case overruled the Evans & Howard case in 85 Mo. 307; State v. Lubke, 15 Mo.App. 152; Railroad v. Clark, 119 Mo. 357. (f) If after payment of the award into court for the land-owner, the land-owner takes the money without excepting, and the railroad company takes possession of the land, although excepting to the report of the commissioners, it operates as a finality, and the exceptions will be stricken from the record on proper motion. State v. Lubke, 15 Mo.App. 155. Wherever the question has presented itself for adjudication it has invariably turned on the other question of whether or not the payment required was one without reservation or was a mere deposit pendente lite; in those jurisdictions where under the constitutional provisions the payment into court was without reservation, the courts have held that it operated as a finality. Neily v. Zurmehly, 23 Ohio St. 631; Wagner v. Railroad, 10 Am. & Eng. Ry. Cas. 384; State v. Lubke, 15 Mo.App. 153, approved in Snyder v. Cowan, 50 Mo.App. 436.
On October 25, 1901, Narcissus A. Aubuchon purchased a parcel of land described as all of fractional section 11, township 39 range 7 east, containing 56.99 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 11 commissioners, duly appointed and qualified, reported Aubuchon's damages at $ 7,000 and further reported that plaintiff company should construct a twelve-foot "under-road" 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 commissioners' report. Thereafter...
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