Webster v. Kansas City & S. Ry. Co.

Decision Date08 May 1893
Citation116 Mo. 114,22 S.W. 474
PartiesWEBSTER et al. v. KANSAS CITY & S. RY. CO.
CourtMissouri Supreme Court

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by Edward H. Webster and others against the Kansas City & Southern Railway Company to recover for land appropriated by defendant, and for injury to the residue. There was a judgment for plaintiffs, and defendant appeals. Affirmed.

Johnson & Lucas, for appellant. Gage, Ladd & Small, for respondents.

MACFARLANE, J.

The suit is by Edward H. Webster and wife, Medora R. Webster, Charles D. Lucas, and Richard H. Weller, and is to recover damages from defendant for taking possession of, and building its road upon, a strip of their land, 66 feet wide, through the S. ½ S. W. ¼ section 24, township 49, range 33, and for damages to the residue of the tract by reason thereof. The petition charges, in substance, that, plaintiffs being the owners of the land above described, on the 1st day of March, 1888, defendant entered and permanently appropriated a strip thereof, 66 feet wide, through the same, (describing it,) for right of way, constructed its railroad thereon, and since has been, and still is, operating its engines and cars over the same; that there were so taken and appropriated 2.75 acres, of the value of $1,000 per acre; and that the remaining land is damaged thereby in the sum of $3,000; and judgment was demanded for $5,750. The answer was a general denial. The trial resulted in a verdict for plaintiffs for $2,464 for the value of the land taken, and $1,680 for the damage done the remainder, and judgment was rendered for the aggregate amount, and defendant appealed.

1. Upon the trial, defendant objected to the introduction of any evidence under the petition on the ground that it did not state a cause of action. This objection was overruled, and the ruling of the court in doing so is the first error assigned. The specific objection made to the petition was that there was no allegation that the entry by defendant was wrongful, or that the occupation became wrongful by matter subsequent to the entry. Possession was taken by defendant of the strip of land upon which its road was built under such circumstances as might imply a waiver on the part of the owners of prepayment of the compensation which is required by the constitution as a condition precedent to the appropriation of the land. The road was built and put in operation under such implied waiver. In such cases it has been repeatedly held by this court that the owner is estopped to reclaim his land, and that ejectment will not lie to oust the railroad company of its possession, if compensation can be otherwise ascertained and enforced. Baker v. Railroad Co., 57 Mo. 265; Provolt v. Railroad Co., Id. 256; Bradley v. Railway Co., 91 Mo. 493, 4 S. W. Rep. 427; McClellan v. Railroad Co., 103 Mo. 310, 15 S. W. Rep. 546. While the statute (article 6, c. 42) only gives the right to the condemning company to initiate proceedings to condemn and assess damages, the landowner is not left without a remedy, but may resort to his common-law action on the case to recover his damages. By waiving prepayment the owner does not waive his right to compensation for the land actually taken, or for damages for the injury done the remainder of the tract. Chicago, M. & St. P. Ry. Co. v. Randolph Town Site Co., 103 Mo. 451, 15 S. W. Rep. 437. An action for such damages is not predicated upon the wrong or trespass upon the land, but upon a constitutional right to compensation as for the appropriation of a part, and damages to the residue. Though the entry may have been tortious, and such as would have entitled the owners to maintain an action of trespass or ejectment, they had the unquestionable right to waive the tort or wrongful possession, and sue for compensation simply. Doyle v. Railway Co., (Mo. Sup.) 20 S. W. Rep. 970. We think the petition states all the facts necessary to constitute a cause of action to recover the compensation and damages claimed. "A judgment of recovery, and satisfaction thereof, will operate to vest in the defendant company an easement in the land, as much so, and as effectually, to all intents and purposes, as if condemnation proceedings had been regularly instituted and conducted." Doyle v. Railway Co., supra, and authorities cited; McReynolds v. Railway Co., (Mo. Sup.) 19 S. W. Rep. 824.

2. Upon the trial, objection was made to the admission of evidence tending to prove the value of the land taken at that time, in view of all prospective uses to which it was adapted, and in...

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