Chicago, Milwaukee & St. Paul Railway Co. v. Baker, 102 Mo. 553

102 Mo. 553 | Mo. | 1890

Black, J.

— This was a proceeding commenced by the plaintiff corporation to condemn a right of way over seven forty-acre tracts of land owned by defendant, Dudley Baker. The defendants, Cook and Moberly, hold a debt secured by a deed of trust upon part of the land, and defendant Lightner holds a debt secured by a deed of trust upon another part. The commissioners appointed to assess damages ’made two reports, thus assessing separately the damages to the lands covered' by the deeds of trust. These reports, on exceptions thereto filed by Baker, were set aside, and the damages were reassessed by a jury at $341, and the plaintiff appealed.

1. The plaintiff objected to the evidence showing that the pasture land was located on one side of the railroad and the tillable land on the other side ; making it necessary for the defendant to drive his stock back and forth across the railroad, because such damages were Special and were not specially pleaded.

When the court set aside the report of the commissioners, the case came on for trial before the jury on the plaintiff’s petition. The case was not tried by the jury on the exceptions filed by Baker, but on the defendant’s petition for the assessment of damages. On that petition the plaintiff was entitled to full damages. No pleadings were made or required to be made on the paft of the defendant. The objection to the evidence was, therefore, properly overruled.

2. The defendant’s farm contains five hundred and ninety acres all in one body, and the road runs diagonally through it, passing over the seven forty-acre tracts described in the plaintiff’s petition. The damages to be allowed in cases like this, where the railroad appropriates a part of a body of land, are such as the landowner suffers to the body of land taken as a whole. The damages are not confined to the small government subdivisions over which the road may pass ; and the corporation exercising the right of eminent domain cannot avoid the payment of the damages done to the entire farm by selecting out and describing in its petition the forty-acre tracts through which the road may be located. The Springfield & Southern Ry. Co. v. Calkins, 90 Mo. 538 ; The Kansas City C. & S. Ry. Co. v. Story, 96 Mo. 611.

3. A further contention is that plaintiff had acquired all the interest of the mortgagees in the land, and, as the mortgage debts remained unpaid, no damages should have been awarded to Baker. Instructions to this effect were asked by plaintiff, which were refused. The proposition seems to be based upon the notion that the commissioners’ reports, which in terms allowed damages to the mortgagees, remained undisturbed. This is a misconception of the record. The ■exceptions to the report were filed by Baker only, it is true ; but he had a right to object to the entire assessment of damages made by the commissioners, and he •did so object, and his objections were sustained. It then became necessary to make an entire new assessment as to all parties in interest in these lands. The reports of the commissioners having been set aside, the plaintiff acquired the interest of no one by virtue of those reports,

4. The mortgagees are no doubt entitled to have the damages awarded by the jury applied to the pay ment of the mortgage debts, and they can still have that done. They might have demanded a separate assessment of damages as to the lands embraced in each deed of trust, but they made no such request, and they are not here making any complaint. The fact that the jury awarded the damages in one sum to defendant Baker is a matter of which the plaintiff has no right to complain. The mortgagees may waive their right to the money, if they see fit so to do, or they can still have their rights adjusted. The land-owner is entitled to full damages, and the question as to the distribution of the money between the mortgagees is a question which does not ■concern the plaintiff.

5. With the exception hereafter noticed, the instructions given on both sides are in accord with the prior rulings of this court in the following cases: Quincy, Missouri & Pacific Ry. Co. v. Ridge, 57 Mo. 599; The Wyandotte, K. C. & N. Ry. Co. v. Waldo, 70 Mo. 629; Combs v. Smith, 78 Mo. 32; Jackson County v. Waldo, 85 Mo. 637.

Objection, however, is made to this instruction given at the request of the defendant:

“3. In estimating the damages to the land in controversy, by reason of the location of the railroad through it, the jury will not take into consideration any advantage arising from the erection of fences on either side of the road by the plaintiff nor any advantage which may arise from the putting in or making’ surface crossings and gates on said farm.”

The land-owner should be allowed the difference in value of his whole tract of land before and after the location of the railroad over and across the same. And in applying this rule the jury should consider in favor of. the owner, not only the amount and value of the land actually appropriated,, but they should also take into consideration the inconveniences which will arise in going from one portion of his land to another, the grade at which the road is constructed, and the shape in which the land not taken is left. On the other hand the jury in reaching a conclusion should consider in favor of the defendant those benefits, if any, which are immediate and direct to the tract, arising from the construction of the road ; but benefits which are common to other lands in the same vicinity should be excluded. If the railroad company is not required by law to fence its right of way, then the additional fencing rendered necessary to the reasonable use and enjoyment of the land not taken is a matter to be considered by the jury in favor of the land-owner. Lewis on Em. Dom., sec. 498; Mills on Em. Dom., sec. 212. The same principle applies in respect of farm crossings, where the company is not required to make and maintain them.

But by our statute it is made the duty of the railroad company to erect and maintain fences on the sides of its road, and to make and maintain all necessary farm crossings. Should the company after three months from the completion of the road fail to make and maintain such fences and crossings, the land-owner may do the work himself, and the statute gives to him a cause of action against the company for the cost of the work, and for his time and trouble in doing it. As this duty of making and maintaining fences and farm crossings is imposed upon the company, and as a specific remedy is given lay statute for a failure to perform that duty, it is clear that building fences along the sides of the road and making farm crossings do not constitute any part of the damages to be awarded the land-owner. 3 Sutherland on Dam. 444; Jones v. Railroad, 68 Ill. 380; The Winona & St. Peter Ry. Co. v. Waldron, 11 Minn. 515. In the case before us the company complied with the statute in respect of fences and farm crossings. Any loss, inconvenience or damage resulting to defendant from a failure to make and maintain fences and farm crossings, after the expiration of the three months, shoul,d not be taken into account as augmenting the damages to be awarded. But it was the duty of the jury to take into, consideration the fact that the company was bound to erect and maintain such fences and crossings, and they should estimate their damages on the supposition that the company would perform its duty in these respects. In the case last cited it was held that, where the railroad company is required by statute to construct such fences, the damages for taking the land should be assessed upon the basis of the construction of such fences by the company, in accordance with the statutory requisition.

The instruction in question excludes from the consideration of the jury any advantage arising from the erection of fences and the making of the farm crossings, and it was error to give it. We do not say that the cost of building fences and making farm crossings should be estimated and the estimated amount deducted from the damages ; for it is not true as counsel for the plaintiff seem to suppose that these fences are built for the sole benefit of the land-owner.

What we say is.this, that in estimating the value of the entire tract of land with the railroad located over and across it, the estimate should be made on the basis that it is the duty of the company, and not the landowner, to erect and maintain fences and farm crossings. It must be apparent to anyone that the damages will not be as great where the company makes and maintains fences and crossings as where that duty falls upon the land-owner.

The evidence of the sixty odd witnesses is conflicting. Indeed, the value of the fifteen acres of land taken is estimated all the way from $5 to $25 per acre; so that we cannot say the error in giving the instruction was a harmless one.

The judgment is, therefore, reversed and the cause remanded.

All concur.