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

• Decision Date: 15 July 1896
• Parties: Union Elevator Company et al. v. Kansas City Suburban Belt Railroad Company, Appellant
• Court: Missouri Supreme Court

33 S.W. 926

135 Mo. 353

Union Elevator Company et al. v. Kansas City Suburban Belt Railroad Company, Appellant

Supreme Court of Missouri, Second Division

July 15, 1896

Appeal from Johnson Circuit Court. -- Hon. W. W. Wood, Judge.

Reversed and remanded.

Trimble & Braley and G. A. Vandeveer for appellant.

(1) Blocks 1, 3, and 7 being separated by public streets, are therefore, separate tracts, and the unlawful occupation of Hopkins street by the respondents, gave them no right to have these blocks considered as one tract. Pa. Co. v Railroad, 151 Pa. St. 334; Matter of N. Y. C. R. R Co., 6 Hun, 149; Fleming v. Railroad, 34 Iowa 353; Mikesell v. Durkee, 34 Kan. 509; Same v. Same, 36 Kan. 97; Glaessner v. Brewing Ass'n, 100 Mo. 508; Railroad v. Railroad, 97 Mo. 457; Gustafson v. Hamm, 57 N.W. 1054; Heath v. Railroad, 61 Iowa 11; State ex rel. v. Inhabitants, 36 N. J. L. 79. (2) Respondents could not connect blocks 1 and 3 by constructing their tracks over the levee and around the north end of Hopkins street, because they show no right so to do, either by city ordinance, or by grant from the owners of the fee. (3) Respondents were not entitled to recover damages on account of being cut off from the river, or any interference in the loading or unloading of boats. They were not riparian owners; the Missouri Pacific track was already there; they show no rights in or over the levee, other than such as the public generally have, and the appellant was rightfully there. Railroad v. Railroad, 12 Cush. 605. (4) Damages to blocks 3 and 7 should not have been considered as occasioned by depriving block 1 of a connection with the Missouri Pacific track, because respondents had no lawful means or transporting cars from block 3 to block 1, and thus on to the Missouri Pacific track, public thoroughfares intervening. Mikesell v. Durkee, supra; Gleassner v. Br'g Ass'n, supra; Railway v. Railway, 97 Mo. 457; Gustafson v. Hamm, supra; Heath v. Railroad, supra; State ex rel. v. Inhabitants, supra. (5) Neither B. C. Christopher, Max Minter, J. K. Davidson, F. A. Talpey, J. E. Seaver, A. McKenzie, Frank Goodnow, Geo. W. Mathews, A. L. O. Schueler, nor Edward C. Wright were qualified to express an opinion as to values of land and damages. Michael v. Pipe Line Co., 159 Pa. St. 99; Gorgas v. Railroad, 144 Pa. St. 1; Railroad v. Pierson, 35 Cal. 247; Buffum v. Railroad, 4 R. I. 221; Vance v. Pa. Co., 115 Pa. St. 325; Railway v. Stewart, 50 Kan. 33. (6) Witnesses should not have been asked what the land would be worth without the defendant's railroad. Doyle v. Railway, 128 N.Y. 488; Gray v. Railway, Id. 499; Roberts v. Railway, 28 N.E. 486 (N. Y. Ct. App.). (7) Respondents were not entitled to recover damages on account of appellant's crossing the switch connection with the Missouri Pacific track on the levee. Railroad v. Railroad, 121 Mass. 124. (8) The question whether blocks 1, 3, and 7 were an entire tract, was not for the jury, and the court erred in giving plaintiff's instruction numbered 1. Pa. Co. v. Railroad, supra; Matter of Railroad, supra; Fleming v. Railroad, supra. (9) Defendant's tenth instruction correctly declares the law, and should have been given. Authorities under point 7.

James Black, J. W. Suddath, and Pratt, Ferry & Hagerman for respondents.

(1) The evidence showed that the elevator building could not have been used without the tracks on the three blocks, and every elevator man who testified so stated, and the undisputed facts show that the property had been so used as a whole since 1876 or 1877. (2) The intervention of a street or highway does not change the above proposition. Lewis on Eminent Domain, sec. 475; Kansas, etc., Railroad v. Merrill, 25 Kan. 421. (3) The interference with the track connecting the elevator was a proper element of damages for the consideration of the jury. Webster v. Railroad, 116 Mo. 114; 2 Dillon on Mun. Corp. [3 Ed.], 730. (4) If, when defendant's road crossed the connecting tracks, the damages could have been avoided by making a connection elsewhere, the expense on that account would have measured the damage for the crossing. Railroad v. McGrew, 104 Mo. 282. In this case this was not possible because of defendant's elevated structure on block 1. (5) Block 1 touched the river for some distance, so that there was the right to cross over the Missouri Pacific track on the level ground to reach it. Witnesses, without any objection, admitted that this was a valuable right. (6) Plaintiffs' witnesses were competent to express an opinion as to values. Railroad v. Stock Yards Co., 120 Mo. 541; Thomas v. Mallinckrodt, 43 Mo. 58.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

From a judgment in favor of plaintiffs, the Union Elevator Company and Davidson & Smith, a copartnership composed of James K. Davidson and Edward W. Smith, against the defendant in the sum of $ 14,000 for the taking and damaging for railroad purposes certain property interests of the plaintiffs by the construction of an elevated railway over block 1 in Coates & Hopkins' addition to Kansas City, and by crossing of a connecting track to an elevator owned and operated by plaintiffs, defendant appealed.

The Union Elevator Company is a corporation organized under the laws of this state, owning blocks 1, 3, and 7 in said addition. Upon block 3 there was a large elevator building. Upon blocks 1 and 7 there were a number of railroad tracks used in connection with the elevator for the purpose of running and storing cars thereon, plaintiffs' contention being that all the blocks were used together as one property. Davidson & Smith were the lessees of the elevator building, using all the blocks as one property in connection with said elevator.

There were two loading railroad tracks running through the elevator. One of these tracks crossed Hopkins street, ran out on block 1, touching the levee and ended at the northeast corner of said block. This track while owned by the elevator company was called the "Fort Scott" track, and was used for the receipt of cars from railroads whose tracks were south and west of the elevator.

The other track which runs through the elevator, being the one furthest north, ran out over what is shown by the annexed plat to be the levee, connecting thereon with the Missouri Pacific railroad track which runs along the river bank.

[SEE ILLUSTRATION IN ORIGINAL]

The railroad tracks on blocks 3 and 4, as shown by the map, are connected with the elevator and used as storage tracks, and essential to the use of the elevator.

The elevator company received cars of grain from the Missouri Pacific Railway by having an engine push a number of cars into the elevator until the car furthest north was at the place of unloading After it was unloaded then the cars were pushed north until the next one was unloaded, and so on until they were all unloaded.

Hopkins street is between blocks 1 and 3, and Henning street is between blocks 3 and 7. Said streets do not run any further north than the north line of said blocks. Those portions of the streets between the blocks have never been used by the public as public thoroughfares.

The "levee" is an irregular strip of ground on the north side of blocks 3 and 7 and a portion of block 1, extending to the river front. Block 1 touches the river front, and the Missouri Pacific tracks run along the river bank, crossing block 1 and the levee. Other facts as may become necessary will be stated later on.

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 plaintiff's 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 remainder 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...