Wabash R. Co. v. Cockrell

• Decision Date: 02 February 1917
• Docket Number: No. 18145.,18145.
• Parties: WABASH R. CO. v. COCKRELL.
• Court: Missouri Supreme Court

192 S.W. 443

WABASH R. CO. v. COCKRELL.

No. 18145.

Supreme Court of Missouri, Division No. 2.

February 2, 1917.

Appeal from Circuit Court, Clay County; Frank P. Divelbiss, Judge.

Suit by the Wabash Railroad Company against James F. Cockrell. There was judgment for defendant, and plaintiff appeals. Judgment reversed, and cause remanded.

This suit was begun April 21, 1913, to condemn land to widen plaintiff's right of way. The three commissioners assessed the damages at $700. The defendant called for an assessment by a jury, which was had on November 24, 1913, resulting in a verdict for $2,000. The plaintiff has appealed. The only controversies are as to the proceedings in the assessment of damages and the amount thereof.

The defendant owns a tract of land at Liberty Landing in Clay county, over a mile west of Liberty station, 3 miles south of Liberty, and about 12 miles northeast of Kansas City. It is bounded on the south by plaintiff's right of way a distance of 350 feet. The plaintiff seeks to condemn a strip 41½ feet wide and 350 feet long off the south side of defendant's said tract. About the year 1908 all that was left of the old "landing," so far as the evidence shows, was a two-story brick building about 41 feet north and south by 22 feet. All of it, except a few feet at the north end, was on the land now sought to be condemned, and stood about 100 feet from the east end of such strip. One of the defendant's witnesses testified that he had known that building 47 years. It had once been used as a store, then as a dwelling; then it was vacant at intervals, being sometimes occupied by railroad sectionmen. Afterward it was used by hunting and fishing parties who stabled their horses in it. The windows were out. The arches were cracked, and a brick had fallen out of one of those arches. The floor was broken down, at least in places, by the horses. Such being the condition of affairs at what was once a busy place on the river, one T. N. George, in that year, 1908, for $300 bought a long strip of land containing about 6 acres, and including what is now the defendant's said tract. That strip was bounded on the south by the plaintiff's right of way, and on the north by an irregular line running along on the bluff. The land thus purchased by George was subsequently sold by him in at least five different tracts, which, for convenience of reference, we have arbitrarily numbered from 1 to 5, beginning on the west. Tract 1 was 350 feet or more from east to west along said right of way. The level land thereon between said right of way and the bluff was 70 feet wide on the east narrowing to a point about 150 feet to the west. That tract extended north at least to the top of the bluff. Tract 2, which is the defendant's present tract, extended along said right of way a distance of 350 feet, and extended north to the top edge of the bluff. It contains about 2 acres. Between the foot of the bluff and such right of way was a level tract 70 feet wide at the west end and not much over 40 feet wide at the east end.

Tract 3 was 100 feet wide, measured along such right of way, with a level strip about 40 feet wide. The widths of tracts 4 and 5 are not given, but tracts 3, 4, and 5 each contained about 1½ acres, and extended further north over the bluff than did the other tracts.

In the latter part of the year 1908, George sold tract 1 to Leppert for $350. On March 30, 1909, he sold tract 2 to defendant and one Fisher for $150; and on the same day he sold tract 3 to Tyler for $200. About a year thereafter he sold to Atwood tract 5 for $1,000, and still a year later he sold to Atwood tract 4 for $1,000. Those last two tracts were both sold for purposes of a rock quarry. George testified that he realized $3,450 from the total sales of such land. The relative location of any other tracts that may have been sold by him is not shown here.

Fisher conveyed to the defendant his half interest in tract 2 for the expressed consideration of $85, by deed dated February 21, 1910, but acknowledged on June 12, 1911. There is no evidence to explain why that deed was dated more than a year before it was acknowledged. Fisher testified that he bought that land for hunting and fishing purposes, and that he sold it when he ceased going on such excursions. He also testified that rock quarries had been opened on the Atwood tracts since he sold to defendant.

At some time not clearly shown the river began cutting away the bank at the landing; and both the railroad and the government began to riprap the bank, and rock quarries were opened on the Leppert and Atwood tracts. Tract 2, owned by defendant, and tract 3, owned by Tyler, were not suitable for quarry purposes. The evidence does not show how many men worked at the quarries. There were six or eight men on the railroad section. A house for tenants was erected on the Tyler tract 3 years before the trial, and another a year later. One of those houses contained four rooms and the other two. Tyler sold his entire tract to the plaintiff in April, 1913, for $800.

A box house 12 by 20 feet was built on the Leppert tract in 1911, and was occupied by tenants. So far as the evidence shows, no houses, other than those mentioned, were built in that immediate vicinity prior to the trial. No one but the defendant testified that the house on defendant's land was tenanted until just prior to the beginning of this suit.

The assessment books for the year 1912 showed defendant's tract assessed at $50. One witness for plaintiff put defendant's damages at $400; another placed it at $700. The latter witness had previously been in plaintiff's employ for about 13 years. The defendant himself was the first witness who testified in his behalf. He testified as follows:

"A. The walls are all right. Some of the arches are in bad shape and need fixing and the front arches where the Wabash Railroad runs by it, have shaken the walls loose there; that is, the arches, and they need repairing; I can take but very little and make the house as good as the day it was built. Q. Some bricks knocked out in the northeast corner? A. That's been done lately. The dredge run in that and tore the corner. Q. How much are you realizing from that since this condemnation was filed? A. About $12 a month. Q. What is going on down there to make a demand for this building? A. Well the rock quarries which are permanent. There's great rock quarries down there, and the rock is good, and they are permanent, and also for farm land; I could have rented it to a good many down there who have farm land. Q. What's been done along the river? A. They have improved it; riprapped the river. Q. That done since you bought it? A. Yes, sir; when I bought the house it was in a dilapidated condition, and people were using it as a stable. I have had the house fixed; the floor had been broken down by people going down there and fishing and hunting and putting their horses in it; had no windows in it, and the house was in bad condition. I have put windows in it, and put it in good shape, and ever since I got that house from Mr. Fisher, I have had it rented and can keep it rented. I have had it rented for two years. Q. How far is that house from the Wabash Railroad station on the east? A. I presume about a mile or mile and a half. Q. There's section railroad hands working all the time? A. Yes, sir. Q. And have to have some place to lodge? A. Yes, sir."

He further testified that at the time of the trial he was renting the property for $12 a month to a quarryman for a boarding house. He was not cross-examined.

George was a witness for defendant, and testified that he lived about a mile and a half from the land. During his direct examination the following occurred:

"Q. What was the whole of it worth then at the time the railroad took the strip? what was the date of that proceeding? A. From the way it rents, it ought to be worth —

"By Mr. Moore: I object to that, if he is basing it wholly on rent.

"By the Court: That's the only way of determining value. Objection overruled. (To which action of the court in overruling said objection, the plaintiff then and there duly excepted at the time, and still excepts.)

"Q. Mr. George, what was that whole tract worth on the 8th day of May, 1913? A. You mean this one tract of Mr. Cockrell's? Q. Yes, sir; including the brick house? A. Oh, it's worth, I don't know; from $2,000 to $3,000. I don't know how much it would be worth.

"By Mr. Allen: How much would you say? A. It would be worth somewhere from $2,000 to $3,000, the strip of land. Q. What do you say the tract is worth after the strip was taken off? A. I wouldn't consider it worth anything after the strip was taken off."

On his cross-examination he testified thus:

"Q. Is this land that Mr. Cockrell owns, what is the character of rock on it? A. Well, the rock on this land, there's no rock there that's any account there. It's just a ledge or where the ledge has slid off and covered up with dirt. Q. On Cockrell's land? A. Yes, sir. Q. The valuable rock on Atwood's lands isn't on Mr. Cockrell's land? A. I don't think its as valuable. There isn't as much of it. Q. If that is a fact, what do you base your estimate that the Cockrell land is worth between $2,000 and $3,000? A. I counted that on what he was getting rent for it. Q. What he is getting now? A. Yes, sir. Q. You are placing the value of the land on that old brick building? A. That's what's making him the money. That's what he can rent."

Leppert, a witness for defendant, placed the damages at $1,900.

Just prior to the beginning of the hearing of evidence the jury, on plaintiff's motion, and without objection by defendant, was sent in charge of the sheriff to view the land sought to be condemned, and they did so view it. None of the three commissioners who assessed the damages were put on the stand, and the jury was not informed as to the amount assessed by such commissioners. On the trial there was no...