Wyandotte, Kansas City & Northwestern Ry. Co. v. Waldo

• Decision Date: 31 October 1879
• Citation: 70 Mo. 629
• Parties: THE WYANDOTTE, KANSAS CITY & NORTHWESTERN RAILWAY COMPANY, Appellant, v. WALDO.
• Court: Missouri Supreme Court

70 Mo. 629

THE WYANDOTTE, KANSAS CITY & NORTHWESTERN RAILWAY COMPANY, Appellant,

v.WALDO.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

AFFIRMED.

The defendant's land consisted of several parcels, all of which were connected together so as to form one tract, but some of which were not touched by the plaintiff's road.

Scammon & Reiger for appellant.

Gates & Wallace and Comingo & Slover for respondent.

HENRY, J.

This was a proceeding to condemn certain land of defendant for railroad purposes. Commissioners were appointed in pursuance of the statute to assess the damages to defendant, and on objections made by him, the report was set aside and a jury summoned, which assessed his damages at $1,000, and from the judgment of the circuit court on said verdict, plaintiff has appealed. Defendant's tract consisted of about 400 acres, and the right of way which plaintiff sought to obtain, ran diagonally through it The evidence as to the damage plaintiff would sustain by running the road through his land, was conflicting, but no objections were made or exceptions saved with respect to the evidence. We will not undertake to say whether the damages allowed were excessive or not. The only alleged errors, therefore, to be considered are the giving and refusing instructions.

For the defendant the court gave the following instructions: “In estimating the damages to the land in controversy, the jury will consider the quantity and value of the land taken by the railroad company for a right of way, and the damages to the whole tract by reason of the road running through it, and deduct from these amounts the benefits, if any, peculiar to the said tract of land, arising from the running of the road through the same. And by peculiar benefits to that land is meant such benefits as that land derives from the location of the road through it as are not common to the other land in the same neighborhood.”

For the plaintiff the court gave the following instructions: 1. “The jury are instructed that, from all the facts and circumstances of this case, it is for you to determine what, if any, damages the said Waldo sustained by reason of the appropriation of a part of his said lands for a railroad nd such damages are to be his actual damages to said lands through which the road is located, estimated at the time of taking the same; and such inconveniences, if any as are common to other persons and lands in the same neighborhood are not to be taken into such estimate; and if, from the evidence, you believe that a part of Waldo's lands, over which the road is located, are wet, low or swampy lands, and that by reason of the location of the railroad over the same, the same or a part were drained or thereby made more valuable, then such advantages should be taken into consideration and in diminution of the damages to be awarded.”

3. “The court instructs the jury that in estimating the amount o damages, if any, to be awarded by them to the defendant, Waldo they will not consider such inconveniences to him as are the consequence of the lawful and...