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

• Decision Date: 08 May 1893
• Citation: 116 Mo. 114,22 S.W. 474
• Parties: WEBSTER et al. v. KANSAS CITY & S. RY. CO.
• Court: Missouri Supreme Court

22 S.W. 474

116 Mo. 114

WEBSTER et al. v. KANSAS CITY & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 8, 1893.

EMINENT DOMAIN — COMPENSATION — MEASURE OF DAMAGES — REVIEW ON APPEAL — QUESTIONS NOT RAISED BELOW — MISJOINDER OF PARTIES.

1. To entitle a person to damages for an appropriation of his land by a railroad company, and for injuries to the remainder of his land caused by such taking, it is not essential that the original entry by such company be wrongful, or that the occupation became wrongful by matter subsequent to the entry; a right to such damages not being predicated on the wrong or trespass on the land, but on a constitutional right to compensation as for the appropriation of a part, and damages to the residue.

2. In estimating the damages caused, evidence of the availability of the land as an approach to a large city for railroads, and its adaptability to use for manufacturing purposes, was competent to show the commercial value of the land.

3. It having been shown that an interest in plaintiffs' land near the time of defendant's entry thereon was sold, or offered for sale, by plaintiffs below the value placed upon it by them in their evidence, it was competent for them to show that they were thereby trying to interest defendant's officers in the land, with a view of securing a station and building a town thereon.

4. Both parties having tried the action on the theory that there had been an appropriation of the land when possession was taken, and all the evidence of value being directed to that time, defendant cannot complain for the first time on appeal that the value should have been estimated as at the trial or commencement of the suit.

5. Defendant having had possession and use of the land from the date of its entry thereon, plaintiffs are entitled to interest on the amount of the damages assessed from the date of the entry on the land by defendant.

6. An objection that one of the plaintiffs is not a proper party to the suit because, after defendant's entry, he sold his interest to a co-plaintiff, is without merit, in that, though an improper joinder, it could not prejudice defendant, since both would be concluded by a judgment, and it would be immaterial to defendant which would be entitled to the damages.

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...