194 Mo. 175 | Mo. | 1906
This case was before this court on a former appeal, 174 Mo. 1, wherein a full and fair statement of the facts in the case, as disclosed by the record, was given. The case was then before us on plaintiff’s appeal. The judgment of the court, below was reversed and the cause remanded, with directions to the court to appoint a commission, as the law required, for the purpose of assessing the damages to the defendant, the said commission to forthwith report its finding to the circuit court in which the proceeding was pending, to the end that the bridge company might take possession of the property and proceed with its work. This commission, acting in accordance with the directions of the court, viewed the property sought to be condemned, and on the 10th day of April, 1903, filed its
This plaintiff contends now that if there ever was a Federal question involved in this case it was involved as much in the former appeal as it is now, and the defendants having failed to take any steps to have these questions reviewed by a Federal tribunal cannot now do so, because all of the matters and things therein con-.
There was much testimony adduced on the question of values, as bearing on the amount of damages to which defendants were entitled on account of the condemnation of their property.
At the instance of plaintiff, and over the objection and exception of defendants, the court instructed the jury as follows:
“The court instructs the jury that on the 24th day of April, 1902, at 10 :40 o’clock a. m., the Southern Illinois and Missouri Bridge Company, as plaintiff, filed in the circuit court of Scott county, Missouri, its petition against B. Gr. Stone, Nannie Finley and R,. M. Finley, her husband, as owners, and Birgehardt Miller, Perry Bates and David Heldt, as occupying tenants, seeking to condemn for public use in connection with its bridge a strip of ground 200 feet wide and about 4,500 feet long, then owned by the said B. Gr. Stone, Nannie E. Finley and B. M. Finley, her husband, more particularly described as follows: A part of the S. E. and S. IT. parts of private survey "No. 794 in township thirty, range fourteen east; and in lot 2, of the N.'E. 1-4 of sec. 2, township 29, range 14 east; being a tract of land 200 feet wide, one hundred feet on each side of the center line of the approaches to the bridge of the Southern Illinois and Missouri Bridge Company as located and platted, beginning at a point on the east line of fractional section 24, township thirty, range 14 east; and 1,240 feet from the S. E. comer of said fractional section; thence runs south 70 degrees 45 min. east, 765 feet; thence by one degree curve to the right, 980.4 feet; thence south 59 degrees, 45 min. east, 925.8 feet; thence by a 2 degree and 30 minutes curve to the left, 1,289.8
“2. The court further instructs you that the plaintiff Bridge Company has the right under the law to take and appropriate said strip of ground upon paying to said defendant owners R. Gr. Stone, Nannie E. Finley and R. M. Finley, her husband, just compensation therefor, and that the only matter for the jury to determine in this cause is the just compensation to he paid by said company to said defendants.
“3. This just compensation, or in other words, the damages to which defendants are entitled, is the difference in the fair market value of defendants ’ whole property before and after the appropriation by plaintiff of the strip of land above described in view of the uses to which said strip condemned was to be thereafter applied.
“4. The market value of the property means its actual value-, independent of the location of plaintiff’s bridge and approaches thereon; that is, the fair value of the property as between one who wants to purchase and one who wants to sell it; not what it could be obtained for in peculiar circumstances when greater than its fair price could be obtained, not its speculative value; not the value obtained through the necessities of another. Nor, on the other hand, is it to be limited to that price which the property would bring when forced off at auction under the hammer. The question is if the defendants wanted to sell their property, what could be obtained for it upon the market from parties who-wanted to buy and would give its full value?
‘ ‘ 5. The market value is not to be determined by the value of the strip in question to the plaintiff Bridge
‘ ‘ 6. The jury will consider the benefits, if any, and the disadvantages if any, resulting to the remainder of defendant’s said property from the appropriation by plaintiff Bridge Company, of the strip of land in question for the purpose of its bridge and approaches. The benefits to be considered and allowed by the jury are the direct and peculiar benefits, if any, which result to the remainder of defendants ’ said property and not the general benefits which defendants derive in common with the other land-owners in the vicinity from the building of the bridge and its approaches. ’ ’
At the request of defendants, the court further instructed the jury as follows:
1 ‘ Gentlemen of the Jury:
“It is your duty to assess the damages which you may believe from the evidence defendants will sustain on account of the appropriation by the plaintiff of the land involved herein.
“And in assessing said damages you will be governed by the following rules, viz:
“You will consider the quantity and value of the land to be taken and the damages to the whole tract by reason of the construction of the plaintiff’s bridge, and approach.
“Value, as used in these instructions, means market value, but you are further instructed that the market value is not what it will sell for at forced sale, but it is the highest price it will bring in the hands of a prudent seller in view of all the uses and purposes for which the land is adapted; and if you believe from the evidence that said land is located so' as to be eligible as a site for a bridge across the Mississippi river or so
“2. The court instructs the jury that, under the testimony in this cause, the date of the assessment of the damages by the commissioners will be taken as the date of the appropriation by plaintiff of the land sought to be condemned herein. And whatever sum you may find the property taken by the plaintiff at that time to be worth, according to the rules of fixing damages, as mentioned in these instructions, will be the amount of said damages, whatever it may be, and should be returned by your verdict.
“3. The court instructs the jury that the consideration shown by the deeds offered in evidence, either for plaintiff or defendants, is not binding on either of said parties, but only circumstances to be considered in connections with the other testimony offered in this cause, by the jury in arriving at its verdict, and you are also instructed that the considerations in said deeds may be explained by testimony which you will also consider in your verdict, provided any such testimony of explanation was offered.”
It is claimed by defendants that the petition is fatally defective in that it fails to allege that the land sought to be condemned is to be acquired for public use. But the sufficiency of the petition and all other questions presented by the record on this appeal, up to the time of the decision of the court on the former appeal, were passed upon in .the opinion then delivered, and have become res adjudicaia. On the former appeal, the judgment was reversed and the cause remanded with specific directions, as before stated, and under such circumstances the mandate must be strictly pursued, all matters included therein being res adjudicata, and cannot be reopened. [Stump v. Hornback,
In the case of Metropolitan Bank v. Taylor, 62 Mo. 338, it is said: “When the case of Roberts v. Cooper, 20 How. 467, was before the Supreme Court of the United States the second time, after it had been tried in the circuit court on the principles established by the Supreme Court in the first trial, it was decided that the court could not be compelled, on a second writ of error in the same case, to review their decision on the first; that after a case had been brought there and decided, and a mandate issued to the court below, if a second writ of error was sued out, it brought up for review nothing but the proceedings subsequent to the mandate ; that none of the questions which were before the court on the first writ of error could be reheard or examined upon the second, and to allow a second writ of error or appeal to a court of last resort on the same questions which were open to dispute in the first, would lead to endless litigation; for there would be no end to a suit if every litigant could by repeated appeals compel a court to listen to criticisms on their opinions, or' speculate on chances from changes in its members.”
There are several errors assigned by defendants which are claimed to have occurred after the judgment was reversed and the cause remanded to be proceeded with as directed by this court. The first of these is as to the appointing, in vacation, commissioners to assess the damages, when the mandate of this court directed the lower court to appoint commissioners. The contention is that when directions are given by a court to do an act, which under the express terms of the law
Under the facts disclosed by the record, we do not think the Cape Girardeau and Thebes Terminal Railroad a necessary party to this litigation; hence no error was committed in refusing it to become a party defendant.
It is said for defendants that the trial court committed error in permitting the plaintiff to introduce and read in evidence the official document and record reciting the fact of the appointment of commissioners and their award of damages in the sum of $8,120. But .this seems to be a misapprehension of the facts disclosed by the record, which shows that when Mr. Miller, attorney for plaintiff, offered in evidence the order made on the 24th of March, 1903, appointing- commissioners to assess the damages to- the defendants, R. G.
Defendants assert that there was no evidence that plaintiff endeavored to agree with them or either of them as to the price to be paid for said property, and intimate that there was no averment in the petition as to a failure to agree upon the price or compensation to be paid therefor, and that, therefore, the court was without jurisdiction of the case. The petition alleges that the “petitioner has endeavored to agree with defendants and each of them upon the price to pay for said property, but has been unable to amicably settle or to agree at all upon a proper compensation to either of the parties defendant. ’ ’ That the court had jurisdiction of the parties and the subject-matter of the controversy clearly appears from the record, and even were it true that there was no evidence in support of this allegation such fact would not oust the court of its jurisdiction. Nor was it necessary for plaintiff ‘ ‘ to sustain this averment of the petition by oral testimony” (Cory v. Railroad, 100 Mo. 282); but that might be done by facts and circumstances, of which there was an abund
The sixth instruction given for plaintiff is criticised upon the ground that it permitted a reduction of the compensation to defendants for the taking of their land by “benefits” supposed to be conferred on the remainder of defendants’ “property” by the bridge approaches. This question has been adjudicated adversely to defendants’ contention upon several different occasions, as will appear from the decisions of this court to be noted. In Combs v. Smith, 78 Mo. 32, it is held that the benefits for which a railroad company are entitled to be allowed in establishing the damages sustained by a land-owner by reason of the appropriation of his land for the road, are such as the land derives from the location of the road through it, and are not enjoyed by other lands in the same neighborhood. [Newby v. Platte County, 25 Mo. 258; Railroad v. Richardson, 45 Mo. 466; Railroad v. Stock Yards, 120 Mo. 541; Railroad v. Knapp, Stout & Co., 160 Mo. 396.] And the benefits peculiar to that portion of the property which is not taken, and which are not common to the public at large, may be set off against the damages assessed for the appropriating of the property. This rule was not changed by the Constitution of 1875. [Daugherty v. Brown, 91 Mo. 26; Kansas City v. Morton, 117 Mo. 446; Lingo v. Burford, 112 Mo. 149 ; Bennett v. Hall, 184 Mo. 407.]
While we recognize the right, as well as the duty, of-this court to change its former ruling in the same case in order to correct or render harmless any error therein, it will only do so when it becomes satisfied that error was committed, or for some reason more cogent than is presented by the record in this case. The former opinion was well considered, as was every phase of the case then presented by the record. It is, we think, in no way erroneous, and should not, therefore, be dis-