St. Louis Terminal Railway Company v. Heiger

• Decision Date: 25 May 1897
• Citation: 40 S.W. 947,139 Mo. 315
• Parties: St. Louis Terminal Railway Company, Appellant, v. Heiger
• Court: Missouri Supreme Court

40 S.W. 947

139 Mo. 315

St. Louis Terminal Railway Company, Appellant, v. Heiger

Supreme Court of Missouri, First Division

May 25, 1897

Appeal from St. Louis City Circuit Court. -- Hon. P. R. Flitcraft Judge.

Affirmed.

John H Overall for appellant.

(1) The court erred in permitting respondent to show what appellant had been compelled to pay for other property in the neighborhood, under condemnation proceedings, and in refusing appellant's third instruction that "the jury can not take into consideration what may have been paid for other property in the neighborhood, by plaintiff, under condemnation proceedings for its right of way. Mills on Eminent Domain, sec. 168; City of Springfield v Schmook, 68 Mo. 394; Railroad v. Clark, 121 Mo. 185. (2) The court erred in permitting respondent to show what appellant had paid for other property in the neighborhood for its right of way, and in refusing appellant's fourth instruction that "the jury can not take into consideration what may have been paid for other property in the neighborhood by appellant for its right of way." Ferris on Eminent Domain, sec. 447, and cases cited; City of Springfield v. Schmook, 68 Mo. 394; Peoria Gas Light and Coke Co. v. Railroad, 146 Ill. 372; Kelliher v. Miller, 97 Mass. 71; Fall River Print Works v. Fall River, 110 Mass. 428. The reason for this law is apparent. Upon grounds of public policy compromises of suits are not to be used in evidence against the party making them. (3) The court erred in refusing appellant's fifth instruction that the jury should exclude from consideration all evidence tending to show that property in question was particularly favorable for dairy purposes because dead animals, carcasses or parts thereof, the offal or any other filth occasioned by its use for dairy purposes, could be thrown into the branch or creek running through the property and be carried away without expense to the person using the same for a dairy. R. S. 1889, sec. 3847. Such dumping is by law made a crime. (4) The court erred in refusing to permit appellant to show what was the value of the premises in question for dairy purposes, that being the use to which it was put at the time of the condemnation, and to which it had been used for twenty years prior thereto, it having also been testified to by witnesses that the property in question was more valuable for dairy purposes than for any other. Boone Co. v. Patterson, 98 U.S. 408; Railroad v. Jacobs, 110 Ill. 414; Johnson v. Railroad, 111 Ill. 415; Gardner v. Brookline, 127 Mass. 358.

Lubke & Muench for respondent.

(1) There is absolutely no basis for asserting that the court below permitted respondent to show what this railroad company had paid for a single parcel of ground, either by way of condemnation, or at private purchase. On the contrary, the trial judge was so zealous in excluding such evidence that he several times interfered in the examination of witnesses, even when counsel had not objected. Appellant's counsel did succeed in demonstrating that Stephensmeyer, who had purchased some of this property as dairy property, was a secret agent of the railroad; but it was made equally clear that the people who did the selling were kept in the dark as to his real motive. (2) Instruction number 5, asked by appellant, was necessarily refused, because it not only improperly comments on the evidence, and singles out a supposed fact, but furthermore comments on the alleged practice of respondent in throwing "dead animals, carcasses or parts thereof," into this "brook" of which there was no evidence whatsoever. A more misleading instruction could scarcely have been asked. (3) The last point made by appellant is without merit. It is contended that because the present use of the property in question was partly for a dairy, balance for dwellings, blacksmith shop and vacant lots, therefore it was competent for appellant to limit the testimony of witnesses as to the value of the entire piece, as if all used for dairies only. Every witness in the case had to admit that the chief value of the main front on Florissant avenue lay in its adaptability to business uses, and not a cowyard. To have allowed any estimate, therefore, upon the basis solely of turning the entire tract into dairies would have been misleading and illogical. Miss. R. Br. Co. v. Ring, 58 Mo. 496; Railroad v. Baker, 102 Mo. 553; Railroad v. McGrew, 104 Mo. 282; Railroad v. Porter, 112 Mo. 361; Webster v. Railroad, 116 Mo. 114; Hickman v. Kansas City, 120 Mo. 110; In re Forsyth Boulevard, 127 Mo. 417.

OPINION

Brace, J.

This is a condemnation proceeding by which plaintiff seeks to appropriate a strip of defendant's ground in the city of St. Louis, fronting one hundred and ninety-four feet on Florissant avenue, two hundred and twenty-four feet on Bercher avenue and running through to Newstead avenue on which it fronts two hundred and sixty-three feet. The tract condemned had on it a two-story brick dwelling house occupied by tenants, a blacksmith and wagonmaker's shop, as well as a large cow stable, horse stables, sheds, outhouses, wells and cisterns, used in connection with a dairy. The damages of the defendant were assessed by the commissioners at $ 14,040. Exceptions to the report of the commissioners were taken by both parties, and upon a trial before a jury in the circuit court the defendant's damages were assessed at $ 15,300, and from the judgment thereon the plaintiff appeals. The errors assigned are as follows:

"1. The court erred in permitting respondent to show what appellant had been compelled to pay for other property in the neighborhood, under condemnation proceedings and in refusing appellant's third instruction 'that the jury can not take into consideration what may have been paid for other property in...