St. Louis, Memphis & Southeastern Railroad Co. v. Continental Brick Co.
| Decision Date | 19 October 1906 |
| Citation | 96 S.W. 1011,198 Mo. 698 |
| Parties | ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant, v. CONTINENTAL BRICK COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. John W McElhinney, Judge.
Affirmed.
L. F Parker and John G. Egan for appellant.
(1) It is error to admit testimony of a witness as to the value of land taken, or the amount of damages to the land not taken where it appears that the witness does not know the market value of the land in question. Railroad v. Stewart, 50 Kan. 33; Gorgas v. Railroad, 114 Pa. St. 1; Railroad v. Gilchrist, 4 Wash. 509; Railroad v. Easley, 26 P. 731; Railroad v. Pearson, 35 Cal. 260. (2) It is error to admit testimony of the value of clay in land considered separately from the value of the land itself. Railroad v. Balthaser, 119 Pa. St. 472; Searle v. Railroad, 33 Pa. St. 64. (3) It is not competent to admit testimony as to possible damages that might arise in the contigency that the brick plant should be enlarged by constructing additional kilns. Spring City Gas Light Co. v. Railroad, 167 Pa. St. 6; Railroad v. Knapp. Stout & Co., 160 Mo. 409; Dorlan v. Railroad, 46 Pa. St. 520; Fleming v. Railroad, 34 Iowa 358; Tallman v. Railroad, 121 N.Y. 119; Burt v. Wigglesworth, 117 Mass. 302. (4) It is not proper to permit, on cross-examination of plaintiff's witness, to be brought out what amount was allowed on the condemnation of the right of way for this railroad, over another tract of land. City of Springfield v. Schmook, 68 Mo. 394. (5) Under the Missouri Absolute Liability Fire Statute, 1111, Revised Statutes 1899, it is not proper to permit the jury to take into consideration the danger from fires being set out by locomotives, as affecting the market value of the land. Railroad v. Donovan, 149 Mo. 103; Railroad v. Shoemaker, 160 Mo. 433; Railroad v. North, 31 M. C. 350. (6) In States where there is no Absolute Liability Fire Statute as to fires set out from locomotives, the true rule is that only such damages can be allowed to the market value of the land as are caused by danger from fires not negligently set out, and the danger from fires negligently set out should not be considered. Mundorf v. Railroad, 62 Hun 467; Railroad v. Freeman, 210 Ill. 270; Railroad v. Gilchrist, 4 Wash. 509; Railroad v. Kregelo, 32 Kan. 613; Setzler v. Railroad, 117 Pa. St. 56. (7) The opportunity to obtain transportation facilities for this brick yard by the construction of a spur track connecting with the line of the plaintiff, constituted a special benefit, which should have been considered by the jury. Railroad v. McElroy, 161 Mo. 586; Railroad v. St. Louis Union Stock Yds. Co., 120 Mo. 564; Railroad v. Fowler, 142 Mo. 683; Railroad v. McGrew, 104 Mo. 291. (8) It is wrong to single out particular facts and instruct the jury to consider them. Railroad v. St. Louis Stock Yds. Co., 120 Mo. 564.
J. L. Minnis for respondent.
(1) (a) Defendant's witnesses were qualified to express their opinions as to the value of the ground taken and the depreciation of the remainder. Railroad v. Norcross, 137 Mo. 432; Railroad v. Calkins, 90 Mo. 543; Railroad v. DeLissia, 103 Mo. 130; Railroad v. St. Louis Union Stock Yards Co., 120 Mo. 550; McReynolds v. Railroad, 110 Mo. 492; Warren v. Mayer Mfg. Co., 161 Mo. 125; Union Elevator Co. v. Railroad, 135 Mo. 375; Railroad v. Dawley, 50 Mo.App. 488; 2 Lewis on Eminent Domain (2 Ed.), sec. 437, p. 953, and sec. 478, p. 1048; Railroad v. Warren, 137 U.S. 348. (b) Plaintiff waived its objections to the qualifications of defendant's witnesses by showing by them on cross-examination that additional railroad facilities would be advantageous to defendant's property. Nichols v. Nichols, 147 Mo. 402; Hume v. Hopkins, 140 Mo. 75. (c) Plaintiff cannot complain of the qualifications of defendant's witnesses, because it pursued the same course and adopted the same theory in its own behalf. Lohman v. Stack, 94 Mo. 677; Schroder v. Michel, 98 Mo. 50; State v. Dettmer, 124 Mo. 432. (2) (a) Where two kinds of ground used in connection with each other but for different purposes and differing in value and in their relation to what remains, are taken for a right of way, it is proper for the witnesses to state the value of each kind separately and the depreciation resulting from taking each kind in giving their estimates of the just compensation. In other words, it is proper for witnesses to give the elements which enter into their estimates of such compensation. And especially in a case where such method is the most intelligent and accurate. "Arbitrary and lumping methods should not be resorted to in assessing damages in condemnation proceedings." Railroad v. Fowler, 113 Mo. 470; Railroad v. Story, 96 Mo. 622; Railroad v. McGrew, 104 Mo. 289; 1 Sutherland on Damages, pp. 800-802; Railroad v. Donovan, 149 Mo. 102. (b) Plaintiff cannot complain because it pursued the same method in examining its witnesses. Railroad v. Donovan, 149 Mo. 102. (c) Plaintiff's objections were technical and even if well taken the judgment should not be reversed. Railroad v. George, 145 Mo. 49; McReynolds v. Railroad, 110 Mo. 492. (d) No evidence was offered by defendant as to "the value of clay in land considered separately from the value of the land itself." (3) (a) No evidence was offered by defendant "as to possible damages that might arise in the contingency that the brick plant should be enlarged by constructing additional kilns." (b) The taking of the only part of the factory site available for extending and enlarging the factory was a proper element to be considered in determining the depreciation in value of the ground not taken. The rule is, "what is the decrease in value of the remaining portion in view of the uses to which it may be put, and not simply in reference to its productiveness to the owner in the condition in which he has seen fit to leave it." Mississippi River Bridge Co. v. Ring, 58 Mo. 496; Railroad v. McGrew, 104 Mo. 290; Webster v. Railroad, 116 Mo. 114; 2 Lewis on Eminent Domain (2 Ed.), sec. 478-9, pp. 1048 to 1056; Mills on Eminent Domain (2 Ed.), sec 173; Boom Co. v. Patterson, 98 U.S. 403; Railroad v. Warren, 137 U.S. 348. (4) (a) Defendant did not bring out "on cross-examination of plaintiff's witness what amount was allowed on the condemnation of the right of way for this railroad, over another tract of land." (b) The cross-examination of plaintiff's witness Wilkins with respect to what he as a commissioner allowed an adjoining land-owner, was proper as tending to contradict his statement that defendant's property, even if considered as a farm, was not damaged by the taking of the right of way. Where a witness has expressed an opinion as to value, the limit of cross-examination is within the discretion of trial judge. Thompson on Trials, sec. 413, pp. 312-3; 1 Rice on Evidence, p. 483; Muller v. St. Louis Hospital Assn., 5 Mo.App. 401, affirmed in 73 Mo. 242; Ardevance v. Arnot, 31 Mo. 471; State v. Robb, 90 Mo. 30; State v. Nelson, 101 Mo. 464. (5) Defendant's instruction 7, which authorized the jury to consider possible danger from fire in so far as it might affect the value of the ground not taken, was proper. Railroad v. McGrew, 104 Mo. 294; Matthews v. Railroad, 121 Mo. 338. (6) Defendant's instruction 2, which authorized the jury to consider the various elements in determining the decreases, if any, in the value of the remaining land, was proper. Railroad v. Shoemaker, 160 Mo. 430; Railroad v. George, 145 Mo. 45; Smith v. Kansas City, 128 Mo. 28; Railroad v. Shambough, 106 Mo. 569; Railroad v. Clark, 121 Mo. 187. (7) The offer of plaintiff to show that he tendered the clay excavated on the right of way to defendant and that defendant declined to accept it, was properly refused. Defendant is entitled to be compensated in money. Railroad v. McGrew, 104 Mo. 299. (8) Plaintiff's offer to show his conversation with defendant's president while endeavoring to agree with him on the compensation, was properly refused. Railroad v. McGrew, supra; Railroad v. Eby, 152 Mo. 606.
OPINION
In Banc
-- Plaintiff in this proceeding is condemning a right of way for its railroad through a tract of land owned by defendant, near the city of St. Louis, containing 153.13 acres. The defendant is a brick manufacturing concern and has, located on this tract of land, its brick-making plant, consisting of machinery, kilns, houses and appurtenances. A branch of the Missouri Pacific Railway passes near the defendant's works and there is a switch track into its premises. The plant had been built about ten years before the trial, during three years of which time it had not been operated. It was purchased by defendant in 1900 at a foreclosure sale under a mortgage for $ 50,000 and accumulated interest, and had been operated by defendant ever since. According to defendant's testimony the machinery, kilns, buildings, etc., constituting the plant, would cost to construct at the date of the trial $ 75,000 to $ 100,000.
On the filing of the petition commissioners were appointed by the court who made their report awarding to defendant the sum of $ 2,750; exceptions to the report were filed by defendant and a trial by jury was asked and granted. At the trial the jury assessed the defendant's damages at $ 14,000, and a judgment for that sum less $ 2,750, the amount of the commissioners award which had been paid to the defendant, was rendered in defendant's favor, and the plaintiff appealed.
The record contains in minute detail a description of defendant's property, and the course of the proposed railroad through it, but it is unnecessary to repeat that description...
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