Restetsky v. Delmar Avenue & Clayton Railroad

106 Mo. App. 382 | Mo. Ct. App. | 1904

GOODE, J.

Plaintiffs are averred to be the owners and in possession of lot 1, block 3, of Rogers’ Subdivision of Benton Place, a platted piece of ground just outside the limits of the city of St. Louis, abutting on two streets in said subdivision, Vine and South. The tract contains fifteen acres and was subdivided into lots and suitable roads and ways, designated as streets, April 17, 1884, by its then owners, George and Jane Rogers. On the plat of the subdivision, duly acknowledged and recorded, was the following certificate:

“St. Louis, Mo., April 17, 1884.

“We, the undersigned, proprietors of a-fifteen-acre tract in Gratiot League square, U. S. survey 2037, township 45 north, range 6 east, certify that we have subdivided said tract as represented in the above plat, and that Vine street, fifty feet wide, High street, forty feet wide, Centre street,- forty feet wide, and South street, forty feet wide, are reserved for the private use of the present and future occupants and proprietors of said subdivision and not dedicated for public use.

“Witness our hands and seals the day and year first above written.

“George Rogers, (Seal)

“Jane Rogers. (Seal).”

Plaintiffs ’ lot was conveyed by the Rogers to Katherine Riley’s trustee July 9, 1888, and by Katherine Riley through her trustee Richard L. Knott, to the plaintiffs, September 26,1890. It is agreed those deeds conveyed to plaintiffs whatever right and title George and Jane Rogers had to the lot, which is described in each deed by its number and also by metes and bounds. The complaint against the defendant is that in July, 1899, while plaintiffs owned and were in possession of the lot, the defendant illegally entered on the streets named in front and at the side of the plaintiffs’ lot, dug and removed the dirt from the streets to a depth of eight or ten feet, destroying access to said lot and changing the course of the drainage so that large quantities of water flowed down the streets and washed gullies in them. Damages were prayed’for those acts.

The answer was a general denial.

Evidence to1 support the charge that the defendant dug and excavated along the streets mentioned, to the damage of plaintiff’s property, was introduced, witnesses testifying to the extent of the damage, but varying in their estimates from more than $2,000 to an inconsiderable amount.

At the instances of the plaintiffs the court granted the following instruction, to which an exception was saved:

“You are instructed that in regard to the evidence before you, of experts and others, concerning the value of plaintiffs’ lot before and after the grading and cutting down of Vine street and South street, complained of by plaintiffs, and the actual damage done, if any, you are not bound by the testimony of such witnesses, but may apply your own judgment and knowledge as to such values and damage, in arriving at your verdict in connection with the testimony offered in the case at trial.”

The court refused instructions requested by the defendant, whose general purport was to deny any right of action to the' plaintiffs on the ground that the streets had neither been dedicated to their use, nor granted to them by the original owners; that no title to the lot or streets was shown in the plaintiffs and that no evidence was adduced to prove the defendant company committed the alleged torts.

The plaintiffs had a verdict for $1,500; but after-wards voluntarily remitted one-half of that amount. This appeal was taken by the defendant.

1. Evidence was put in which sufficed for an inference by the jury that the defendant company excavated the streets. A large gang of laborers did the work in preparation of a grade for a railroad track the defendant company intended to lay, and the president of the company was seen among the laborers. The company attempted to justify its action under a grant of authority from the county court of St. Louis county, authorizing it to construct a railroad over any public road within six hundred feet of the city limits, the street in question being within that distance of the corporate boundary of St. Louis.

2. As the original grantors under whom plaintiffs claim had subdivided the tract of land containing the streets and lot, sixteen years before the excavation occurred, and as plaintiffs, and those under whom they claim, had been in adverse possession of the lot during that period under color of title and claiming to own it, we hold plaintiffs showed sufficient title to maintain this action against the defendant as a wrongdoer. Watts v. Loomis, 81 Mo. 236.

3. Our opinion is that by virtue of the deeds put in evidence the plaintiffs owned the fee of the ground to the center of the streets that bordered their lot; for the plat shows no intention on the part of the original grantors to reserve the fee. Only the use of the streets by the proprietors was reserved. When lots abutting on a platted street are sold, the purchaser takes title to the center of the street unless a different intention appears. Elliott, Roads and Streets (2 Ed.), see. 722; Mott v. Sargent, 119 Mass. 231; Peck v. Denniston, 121 Mass. 17; Gould v. Railroad, 142 Mass. 85; Weisbrad v. Railroad, 18 Wis. 35, 86 Am. Dec. 743; Hurley v. Miss., etc., Co., 34 Minn. 143. It is beyond doubt that plaintiffs had such an interest in the streets, either as owners of the fee, or of an easement, as gave them an action for the injury done to their lot by the excavation. The original proprietors declared on the plat filed and recorded by them that the streets were reserved for the private use of the present and future oceupants of the lots in the subdivision. Plaintiffs became the owners of one of the lots and that reservation vested in them the use of the streets in connection with their property. Such a right is appurtenant to each lot and passes to all who successively take the lot in grant. Fox v. Sugar Refinery, 109 Mass. 292; Farnsworth v. Taylor, 9 Gray 162; Rogers v. Parker, Id. 445; First Pres. Church v. Kellar, 39 Mo. App. 441; Cunningham v. Fitzgerald, 138 N. Y. 165; Lennig v. Assn., 41 N. J. Eq. 606. The proposition that the defendant could cut down the street's eight feet below the surface' of plaintiffs’ lot, thereby impairing or destroying access to it, without making compensation, is inadmissible. Such a thing could not be done for public purposes; much less for private.' The railroad company doubtless supposed it acquired authority to grade the streets from the county court, but was mistaken; because the authority granted related to public roads and the streets in question were private ways over which the county court had no control.

4. Complaint is made of the instruction regarding the testimony as to values and damages. The wisdom of warning juries about opinion evidence as to values, further than is done by the usual instruction that they are judges of the credibility of witnesses and the weight to be given to testimony, is questionable. A jury is never bound to accept the statement of a witness if it appears to be unfeasonble; at least where there is contradictory testimony. But the practice of cautioning them particularly against opinion evidence is sanetioned; and the point to be decided is whether the in: struction quoted comes within the sanction. Such a charge must not, either directly or by implication, tell the .jury to disregard the testimony of experts in mating up their verdict. Rosentreter v. Brady, 63 Mo. App. 398; Kansas City v. Hill, 80 Mo. 523. They should be admonished to consider that testimony along with the other evidence in the case; but may be told they are not bound by it. Kansas City v. Butterfield, 89 Mo. 646; Hoyberg v. Henske, 153 Mo. 63; Hull v. St. Louis, Trustee, 138 Mo. 618; State v. Witten, 100 Mo. 525; Brownrigg v. Massengale, 97 Mo. App. 190; Head v. Hargrave, 105 U. S. 45. The charge complained of advised the jury that the evidence of the experts concerning the value of the plaintiffs’ lot before, and after grading, and the actual damage done thereby, was not binding ; but that they might apply their own judgment and knowledge of such things in reaching a verdict, in connection with the testimony offered in the case. This was instructing the jury to consider the testimony of the experts, but that they need not be controlled by it .if it appeared to be unreasonable; and tried by the precedents, that advice was sound. Head v. Hargrave, supra. But it is said the jury were not only told the testimony of the experts on those issues was not binding, but that the testimony of the other witnesses was not binding. The words “and others” were superfluous, but non-prejudicial. In the nature of things all the testimony as to the value of the lot before and after the grading and the damage inflicted consisted of opinions, and could consist of nothing else.' Kansas City v. Street, 36 Mo. App. 666. Doubtless those words were introduced from a notion that only the witnesses who were real estate agents were experts; but any witness who testified as to the damage done to plaintiffs’ lot only gave his opinion on the subject, either derived from general knowledge of the value of real estate in the vicinity, or from his familiarity with the value of the property in question and the injury done by tbe excavation. Tbe instruction did not advise tbe jury they were not bound by tbe testimony of tbe witnesses as to positive facts, but only as to opinions expressed concerning values and tbe damage done. Tbe charge was sound according to tbe cases and is a copy of one approved in Kansas City v. Butterfield, supra. So far as we know tbe rule prevails in all jurisdictions that opinions concerning tbe value of a parcel of land and tbe damage done to it by grading or condemnation, constitute opinion evidence to be weighed by a jury and tested by their experience and knowledge, but are not binding on them. Authorities supra; St. Louis v. Rankin, 95 Mo. 192 and many cases cited in note to Hull v. St. Louis, 42 L. R. A. 767.

Tbe judgment is affirmed.

Blandf P. J., and Bey-burn, J., concur.