St. Louis, E.R. & W. Ry. Co. v. Oliver

• Decision Date: 08 September 1906
• Citation: 87 P. 423,17 Okla. 589,1906 OK 111
• Parties: ST. LOUIS, E. R. & W. RY. CO. v. OLIVER et al.
• Court: Oklahoma Supreme Court

87 P. 423

17 Okla. 589, 1906 OK 111

ST. LOUIS, E. R. & W. RY. CO. v. OLIVER et al.

Supreme Court of Oklahoma

September 8, 1906

Syllabus by the Court.

Where a railroad, in condemning a right of way, cuts in two a tract of land, the fact that the operating of trains over the line of road and across the particular land increases the danger of fire to buildings and crops, and increases the danger to stock, are not matters which constitute independent elements of damages for which a specific award may be made; but such facts, when proven, together with any other inconveniences or dangers occasioned by the building and operating of the road may be considered by the jury in determining the value of that part of the land not taken.

[Ed Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 236, 243, 271-279.]

In a case tried by jury, where it is clearly apparent that the prevailing party is entitled to interest upon the amount found in the verdict, and it is unquestionably clear that the jury allowed no interest, or where the court reserved the question of allowance of interest until after verdict, and it is clearly ascertainable from the verdict or uncontroverted facts, the dates from which and to which interest should be allowed, and the rate is fixed, the court may make the computation, and add the interest so found to the sum found in the verdict and render judgment for the aggregation amount.

[Ed Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, § 378; vol. 46, Cent. Dig. Trial, §§ 785, 799.]

In a condemnation proceeding, where the landowner appeals from the award, and the case is tried to a jury in the district court it is not proper to permit the jury to be informed of the amount of the award made by the commissioners, and as the allowance of interest is dependent upon the question as to whether the amount of damages awarded by the jury is greater or less than the award of the commissioners, the court may, where the question is uncontroverted as to the date from which interest should be allowed, reserve the question of interest for determination by the court and direct the jury not to include interest in their verdict.

Error from District Court, Logan County; before Justice C. F. Irwin.

Action by the St. Louis, El Reno & Western Railway Company against James E. Oliver and Annie Oliver. From a judgment in condemnation proceedings, the railway company brings error. Affirmed.

Burwell, J., dissenting.

Dale & Bierer, for plaintiff in error.

Cotteral & Hornor, for defendants in error.

BURFORD C.J.

The St. Louis, El Reno & Western Railway Company commenced proceedings to condemn the right of way for its line of road over the lands of the defendants in error. After the award was made by the commissioners, a trial by jury was demanded, and a trial had in the district court, which resulted in a judgment against the railroad company for $4,573 and costs of suit. The company has appealed to this court and argue but two points in their brief.

The trial court gave the following instruction to the jury: "In determining the depreciation in value of this land by the construction and operation of a railroad across said land, if any depreciation has been caused, you have no right to include in your estimate any damages from loss by probable fires. The law requires the railroad company to pay for all losses occasioned by fires set out by it, and such losses cannot be recovered until they actually occur; nor can damages be allowed for the probable loss for killing stock or frightening teams. But if the mere fact of operating trains across the farm, with its probable attendant danger of fires, killing of stock, frightening teams, noises, etc., depreciates the salable value of the land and decreases its actual reasonable market value, then any such depreciation may be considered by you in assessing the damages to the remaining portion of said land."

It is contended by the appellant that the jury had no right to consider in any way possible fires or injury to stock, etc., as bearing upon the amount of damages. Let us consider the real effect of the instruction. The first part of it tells the jury that they cannot consider damages from loss by probable fires, etc., and in this statement the court had reference to such loss as an independent element of damages; but in the latter part of the instruction the court states that the jury may take into consideration the probable dangers of fires, and the killing of stock, the frightening of teams, noises, etc., in determining the detriment caused to the remaining portion of the land; and as to whether or not the operating of the company's trains would be attended by any probable dangers or inconveniences from these sources the jury were left to determine. But, if attended by dangers and inconveniences, and their presence affected the value of the land, the court said they might be considered in determining the defendants' (landowners') injury.

It is argued that these matters are too remote and are not contemplated by the law, and section 1041 of Wilson's Revised and Annotated Statutes of 1903 is cited to support this position. That part of the section which is applicable is as follows: "The commissioners shall be duly sworn to perform their duties impartially and justly; and they shall inspect said real property and consider the injury which such owner may sustain by reason of such railroad; and they shall assess the damages which said owner will sustain by such appropriation of his land; and they shall forthwith make report thereof in writing to the clerk of the said court, setting forth the quantity, boundaries and value of the property taken, or amount of injury done to the property which they assess to the owner." In the exercise of the right of eminent domain, due regard should be observed for the enjoyment of the property of the owner which is not taken, as well as full compensation paid to him for the property of which he has been deprived; and when the Legislature directed the commissioners, by the terms of the statute last referred to, to "inspect said real property and consider the injury which such owner may sustain by reason of such railroad," and to "assess the damages which said owner will sustain by such appropriation of his land," it was intended that he should not only receive pay for the land actually taken, but that, if only a part of a tract were appropriated, the injury, if any, to his remaining land, should be considered; the real measure of damages being the difference, if any, in the value of the land as a whole, without the road over it, and the value of that which remains untaken, burdened with the dangers and inconveniences incident to the operating of the road. And if the running of trains over the company's road increases the dangers of fire to grass and grain, etc., raised on the adjoining lands, which formed a part of the original tract from which the right of way was taken, and adds to the inconvenience of farming the remaining land, such matters ought to be considered by the jury as bearing upon the amount of damages sustained-not as independent items of damages, but as affecting the market value of the land untaken. If the owner were to offer the land for sale, a prospective purchaser would consider those dangers and inconveniences. They contribute to the injury of the owner, and are the direct result of the building and operating of the road. The statute allows such owner for "the injury he may sustain by reason of such railroad, and for all damages sustained by such appropriation of his land." Mr. Lewis, in his work on Eminent Domain (volume 2, § 497), says: "When a part of a tract is taken for railroad purposes, danger from fire to buildings, fences, timber, or crops upon the remainder, in so far as it depreciates the value of the property, may be properly considered. It is immaterial that the railroad company is made absolutely liable for all losses by fire which originate from the operation of the road, whether they result from negligence or otherwise. Such liability would doubtless render the depreciation in value less than in cases where the company was liable only for fires resulting from negligence. It is to be borne in mind that compensation is not to be given for increased exposure to fire, nor for increased insurance rates, nor for probable losses by fire in the future, for which no recovery can be had, but simply for depreciation in the value of the property by reason of the danger from fire."

The Supreme Court of Arkansas, in the case of L. R., Miss. & Texas Railway Company v. Allen, 41 Ark. 431, laid down the following rule: "The measure of damages for the right of way taken by a railroad company across a city or town lot is the difference between the value of the whole land, without the road, at the time it was built, and the value of the portion remaining after it is built; and in estimating this value the jury should consider all present and prospective actual damages resulting to the owner from the prudent construction and operation of the road, the effect the road will have in decreasing the value of the land for gardening purposes, *** the dangers occasioned by the risk from fire, the care of family and stock, as well as inconveniences caused by embankments, excavations, ditches and obstructions to the free ingress and egress of the premises, and from the sounding of whistles, ringing of bells, and rattling of trains." To the same effect are Texas & St. L. Ry. Co. v. Cella, 42 Ark. 528; Railway v. Combs, 51 Ark. 324, 11 S.W. 418. Illinois has also upheld the rule stated in this opinion in a number of cases, among which is Chicago, Peoria & St. Louis Ry Co. v. Michael Greiney, 137 Ill. 628, 25 N.E. 798....