Kansas City, Clinton & Springfield Railroad v. Story, 96 Mo. 611

Kansas City, Clinton & Springfield Railroad v. Story

96 Mo. 611 | Mo. | 1888

Sheííwood, J.

The present proceeding was instituted for the purpose of condemning, for a right of way, certain lands, owned by defendant and others who were joined with him. The petition was presented to the judge in vacation, due notice being given to those interested, and three commissioners were appointed to assess the damages, etc. At the next term, the commissioners made their report, the defendant appeared and filed various exceptions thereto, and at the conclusion of his exceptions, asked for a jury to assess- his damages. Witnesses, including the commissioners, were thereupon heard as to the quantum of his damages, these exceptions were overruled, the report approved, and a jury denied him, and he appeals.

I. Section 4, article 12, of our constitution provides that: “The right of trial by jury shall beheld inviolate in all trials of claims for compensation, when, in the exercise of said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right.” It is urged by plaintiff that defendant waived his right of trial by jury when he appeared before the judge in vacation, and the commissioners were appointed at his 1 ‘ instance and request.” This, however, he denied upon oath, the issue being made by plaintiff’s reply to the exceptions filed, charging that such commissioners were appointed in the manner already stated, and no one testified to the contrary of the defendant’s statement.

It is also urged that the judgment confirming the report of the commissioners, recites that at defendant’s .“instance and request,” the commissioners were *620appointed in vacation, and therefore he is concluded by the record from making any denial of such recitals. This may be granted, but what does the concession amount to ? The appointment of commissioners in vacation was merely an initiatory step, a provisional measure, which might or might not fix .the right of the parties, as subsequent events should determine. Besides, at the time of the appointment of the commissioners, it was impossible for defendant to have had a jury, though never so desirous of obtaining one ; and if he had demanded one, and had been refused, there was no way known to the law, whereby he could have saved his exceptions to such refusal. These observations sufficiently indicate that defendant is not estopped by the record, and that he did not waive his right to demand a jury. A man can scarcely waive anything which is out of his reach. And as soon as the report of the commissioners came in, and was .not regarded by him as altogether just, he exercised his right of disaffirmance, on the first opportunity, by filing his exceptions and demanding a jury. His demand was, therefore, timely.

But it is insisted, that under the provisions of section 896, a party is not entitled to a jury, except a “ new appraisement ’ ’ be ordered, and in this case there was none ordered, the report having been confirmed. Of this claim it is sufficient to say that if there be any incongruity between the statute and the constitutional provision already quoted, the latter must prevail. The action or non-action of the legislative department of the government cannot defeat a constitutional right, nor place it in abeyance. The right being conceded, it carries with it the appropriate remedy. People ex rel. v. McRoberts, 62 Ill. 38 ; Kine v. Deffenbaugh, 64 Ill. 291; Bishop’s Stat. Crimes, sec. 137, and cas. cit.; Ex parte Marmaduke, 91 Mo. 265, 266, 267, and cas. cit. And when section 4, of article 12, supra, declares *621that “ the right of trial by jury shall be held inviolate,” etc., the jury there meant is “the historical jury of twelve men,” with all of its incidents. This rule applies without exception, unless a contrary purpose is unmistakably manifested. Cooley’s Const. Lim. [5 Ed.] 506. In consequence of these views and authorities, it must be held that, under the section of the constitution upon which defendant relies, he is entitled tb a common-law jury, and to all the incidents which pertain to a trial by such a body of men. By none of the foregoing remarks is it intended to be intimated that a party situated as was the defendant, could not waive his right to a jury trial. On the contrary, the opinion is that it was quite as competent for him to do so, and in a similar way, as if the cause were any ordinary civil action. The only point decided in regard to that is that the acts of the defendant disclosed by the record did not amount to such a waiver, and were not at all indicative of it.

The defendant claims that the report of the commissioners filed herein, is not in compliance with section 894, in that it does not contain “a specific description of the property for which damages are assessed.” My associates are, however, of the opinion that the report is well enough in this respect, since it refers to the road as “ located over, through and upon” the land in question, and gives a plat, and the plat and profile filed, according to the statute, in the oíñce of the county clerk, shows just where the road is located, so that their conclusion is that the maxim, id cerium, etc., applies in this instance. I do not concur in this view", because I believe that the report on its face must show the precise strip of land talcen, and any report falling short of this does not comply with the statute, which requires the report to contain “ a specific description of the property” taken. Mills’ Em. Dom., sec. 115, and cas. cit.; Mo. Pac. Ry. Co. v. Carter, 85 Mo. 448. The object of this statutory requirement is obvious, the intent *622being that the report is to be a monument of title, a permanent memorial which identifies with absolute certainty, and leaves nothing to parol testimony to identify the land taken, when in after years the center of the roadbed is shifted, and the temporary stakes have disappeared. But whatever the reason of the statute is, it is sufficient to say that its command is of itself a sufficient reason.

The commissioners, in their testimony, stated that in estimating the damages they did not take into consideration the question of how far the other one hundred and sixty acres in the same farm was affected. This was improper under the view taken by this court in Springfield & Southern Ry. Co. v. Catkins, 90 Mo. 538; K. C. & N. W. Ry. Co. v. Waldo, 70 Mo. 629; Q., M. & P. Ry. Co. v. Ridge, 57 Mo. 599.

The commissioners erred in other respects in making their estimate of damages. One of them says he put the damages at double the value of the land actually taken; another that they “lumped” the damages at four hundred and ten dollars, and they all say that in estimating the damages, they took no account of the “cuts and fills.” Arbitrary and lumping methods of assessing damages for taking property have heretofore been condemned by this court. K. C., St. J. & C. B. R. R. Co. v. Campbell, 62 Mo. 585, and elsewhere: P. & R. J. Ry. Co. v. Brickett, 62 Ill. 332. There are numerous authorities holding that cuts and fills made by a railroad passing through a man’s farm, and the inconvenience to which he will be subjected by making it more difficult to reach the severed portions of the'land, are proper subjects for consideration in estimating the damages sustained. Mills on Em. Dom., secs. 166, 189.

For the errors aforesaid, the judgment will be reversed and the cause remanded.

All concur; Ray, J., absent.'