Sterrett v. Delmar Ave. & C. Ry. Co.

• Citation: 84 S.W. 150,108 Mo. App. 650
• Court: Court of Appeal of Missouri (US)
• Decision Date: 13 December 1904
• Parties: STERRETT et al. v. DELMAR AVE. & C. RY. CO.<SMALL><SUP>*</SUP></SMALL>

84 S.W. 150

108 Mo. App. 650

STERRETT et al. v. DELMAR AVE. & C. RY. CO.^*

St. Louis Court of Appeals. Missouri.

December 13, 1904.

CONDEMNATION PROCEEDINGS — ABANDONMENT — DAMAGES.

1. A railroad company, on abandoning condemnation proceedings, is liable to the property owner for all costs and expenses, including attorney's fees, in resisting the proceedings.

Appeal from St. Louis Circuit Court; J. R. Kinealy, Judge.

Action by Frank Sterrett and others against the Delmar Avenue & Clayton Railway Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. Rassieur & Rassieur, for respondents.

REYBURN, J.

In May, 1899, appellant inaugurated, in the circuit court of the county of St. Louis, condemnation proceedings against respondents for the appropriating for its right of way, for operation of an electric railway, a strip 30 feet in width through property of respondents in St. Louis county. The routine statutory procedure was followed, and the proceedings progressed to the stage of a report filed May 28, 1901, by the board of commissioners nominated, awarding respondents $7,000 as their damages, and exceptions filed thereto by appellant, and after sundry continuances, without any hearing had on the exceptions, appellant elected to abandon the proceedings by their dismissal May 15, 1902. Respondents had employed attorneys, who had appeared for and represented them in court and before the commissioners, and this action was brought in the circuit court of the city of St. Louis to recover as damages the expenses incurred in resisting such condemnation suit by the employment of such attorneys, specified as $1,000, and for the loss of time of plaintiffs in preparation for and attending at the various steps of the proceedings. The defendant offered no testimony, and after hearing the proof, oral and documentary, introduced by plaintiffs, under the instruction of the court, a jury returned a verdict for $1,075. The errors assigned by appellant are that the circuit court of the city was devoid of jurisdiction over the subject-matter of the action, and the verdict is excessive.

1. The existence and exercise of the right of eminent domain are inherent in the state, and are essential for the administration and operation of government. But when this extraordinary and sovereign right is conferred upon an artificial person clothed with a franchise of public utility, its employment should be vigilantly scrutinized by the courts, and jealously maintained within legitimate bounds. In the illustration here presented, where the corporation determining the expediency or necessity of the property for the purposes of its railway, and by color of such right instituting proceedings for its appropriation and acquisition, against the will of the owner, withdraws, and withholds the property described, and in most instances the remaining adjacent property of the same property owner, by such announcement of...