Union Elevator Co. v. Kansas City Suburban Belt Ry. Co.

• Decision Date: 15 July 1896
• Citation: 135 Mo. 353,36 S.W. 1071
• Parties: UNION ELEVATOR CO. et al. v. KANSAS CITY SUBURBAN BELT RY. CO.
• Court: Missouri Supreme Court

36 S.W. 1071

135 Mo. 353

UNION ELEVATOR CO. et al. v. KANSAS CITY SUBURBAN BELT RY. CO.

Supreme Court of Missouri.

July 15, 1896.

EMINENT DOMAIN — COMPENSATION — LEVEES — EXPERT TESTIMONY.

1. Where three blocks are used in connection with an elevator, for one common purpose and as one property, and the elevator cannot be operated successfully without the use of all of the blocks, two of which are used for storing cars, in estimating the damages for the appropriation of a portion of one block for the right of way for a railway, it is proper to estimate the damages to the property as a whole, though the blocks are separated by streets across which the owner has laid tracks without permission of the city. 33 S. W. 926, affirmed.

2. An elevator company laid a track on a public levee to connect its elevator with a railroad. Besides using this track as a connection, it placed thereon a number of cars at a time, and pulled them back and forward as occasion required. The track of another railroad being laid across such connecting track did not interfere with its use for connecting purposes, but only with standing and shifting cars thereon. Held that, the elevator company not having the right to shift and stand cars on such connecting track, even if it had the right to make the connection on the levee, it was error to give the misleading instruction that the elevator company could recover for the interference of the other railroad, so far as it affected the working capacity of the elevator as to loading and unloading cars in a speedy, reasonable, usual, and proper way.

3. The right of an elevator company, if any, given it by deed, to cross a public levee with a railroad track, not being exclusive, the crossing of such track by a railroad is not, as to the elevator company, a taking or damaging of private property.

4. An elevator company, by laying a track on a public levee to connect with a railroad, and by using the same 10 to 14 years, does not exercise such an exclusive and adverse use as to confer on it the exclusive right to the part of the levee occupied by the track.

5. Though it is the better rule that, on the question of damages from the construction of a railroad, witnesses should only state the facts, and leave entirely to the jury the question of the amount of damages, still it is not reversible error to allow witnesses to testify to the amount. 33 S. W. 926, modified.

6. Residents of a city, testifying that they are acquainted with property therein, across which a railroad has been constructed, and know its value, are qualified to testify as experts in an action for damages by reason of such construction. 33 S. W. 926, affirmed.

On rehearing. Modified.

For former opinion, see 33 S. W. 926.

BURGESS, J.

The court, over defendant's objection and exception, instructed the jury as follows: "(1) While defendant had the right to construct — in the manner in which it was constructed — its railroad across block 1, and over the railroad track connecting the elevator and the railroad running along and near the river bank, yet it became liable for the damages, if any, it caused to the property and interests of the plaintiffs by reason of so doing; and in this case you will estimate the plaintiffs' damages, if any, in this way: First. By allowing them the actual market value of that portion of block 1 which was actually taken and appropriated by defendant for railroad purposes. Second. The depreciation, if any, in the value of the remaining portion of block 1 after the taking of that portion appropriated by defendant for railroad purposes, provided block 1 was separate from, and not used and occupied as a part of, a whole elevator property on blocks 1, 3, and 7. But if blocks 1, 3, and 7 were used and occupied as an entirety, and as a whole elevator property, then plaintiffs are entitled, in addition to the land taken, to the depreciation, if any, in the value of the entire elevator property on blocks 1, 3, and 7 remaining after the appropriation of said part of block 1, caused by the taking of the portion of block 1, considering the manner in which the defendant's railroad was constructed thereon. Third. If blocks 1, 3, and 7 were used and occupied as an entirety, and as a whole elevator property; if connected therewith was a connecting railroad track, running from a track at the easterly side of the elevator to the railroad track running along and near the river bank; if such connecting track was a valuable right to connect with, and necessary to the use of, the elevator property situated on blocks 1, 3, and 7; if defendant's railroad crossed such connecting track on the land called `Levee' in such a manner as to diminish the working capacity of the elevator in a proper, speedy, usual, and reasonable way in loading and unloading cars, and thereby depreciated the value of the entire elevator property on blocks 1, 3, and 7 in a sum additional to any that might be found under the circumstances mentioned in paragraph 2 hereof, and the manner in which the defendant's road was constructed on block 1 prevented plaintiffs making a reasonable, practicable connection with the track running along and near the river bank, — then plaintiffs are entitled to the amount of such further depreciation, and from the total damages, if any, defendant is entitled to have deducted the special and peculiar benefits, if any, to the elevator property on blocks 1, 3, and 7, caused by the construction of defendant's road in the manner in which it was constructed; and the plaintiffs' damage, if any, cannot exceed the sum of fifty thousand dollars. (2) The facilities, if any, for the transportation of grain from the property, and a railroad connection, if any, with the elevator, and facilities therefor, if any, were property rights which belonged to the plaintiffs; and if either was injured by the construction of defendant's railroad over block 1, if blocks 1, 3, and 7 were used and occupied as a whole, this would be a damage to the remaining property, for which plaintiffs should be compensated, in ascertaining the damages, if any, in the circumstances mentioned in paragraphs 2 and 3 of the foregoing instruction No. 1. (3) While it is true that if the railroad crossing made by defendant over what, in these instructions, has been called the `Connecting Track,' damaged the interests of plaintiffs in the elevator property, the cost of making any reasonable, practicable change of the crossing and connection, to the extent it would lessen such damage, would measure the damage, if any, for the crossing, yet if a change of such connection was not reasonably practicable and reasonably sufficient, or if such change would not have lessened the damage, then the damage, if any, on account of the crossing, should be measured by the depreciation, if any, caused thereby in the value of the property on blocks 1, 3, and 7 by diminishing the working capacity of the elevator in loading and unloading cars in a proper, speedy, usual, and reasonable way, if it did so, and if these blocks were used and occupied as a whole property. (4) In considering the question of values, benefits, and depreciation in values, if any, the jury will consider them as of April 11, 1892, and consider any use to which the property was actually put, and to which it was naturally adapted. The word `value,' as used in these instructions, means the fair market value as shown by the evidence."

Among other instructions given on behalf of defendant were the following: "(8) The court instructs the jury that there is no evidence showing that the plaintiffs had any right to use the track of the Missouri Pacific Railroad Company, which lies north of the defendant company's track, for storing or standing cars upon. (9) The court instructs the jury that the building, construction, and operation of the defendant railroad company's track and road, and the crossing by defendant company with its track and road, over the switch running from the north side of the Union Elevator to the Missouri Pacific track on the north of defendant's track and road, does not in any wise interfere with nor deprive plaintiffs of any rights or benefits which they have or had under and by virtue of the contract introduced in evidence between Kersey Coates and C. G. Hopkins, executor of the will of W. D. Hopkins, deceased, to the Missouri Pacific Railroad Company, under date 29th of March, 1876, and which has been identified and marked `Exhibit T.'"

The following instructions asked by defendant were refused, and exceptions duly saved: "(10) The court instructs the jury that in determining what, if any, damages you will allow the plaintiffs, you cannot take into consideration the fact that the defendant company crosses the switch running from the Missouri Pacific track in the southwesterly direction through the north side of the Union Elevator, and you cannot allow plaintiffs any sum or amount on account thereof. (11) The court instructs the jury that the plaintiffs have not shown by any evidence any right to connect any railroad tracks, spurs, or switches with the Missouri Pacific Railway Company's track on or across the northeast corner of block 1. (12) The court instructs the jury that there is no evidence showing that plaintiffs have any right to construct, maintain, or operate any spur, switches, or railroad tracks over, across, or upon that part or parcel of land marked and designated on the plat as `Levee,' except that they have the right to run out from the north side of block 1, a short distance east of the northwest corner of said block, over on the edge of the levee, and run a short distance east on the south side of the levee; thence crossing back, and returning again to block 1, — as shown by the red [shaded] strip with blue line through the center upon the plat contained in the abstract, and introduced in evidence, and being the plat referred to in the deed which conveyed block 1 from Coates &...