| Mo. | Oct 19, 1906
Plaintiff in this proceeding is condemning a right of way for its railroad through a tract of land owned by defendant, near the city of St. Louis, containing 153.13 acres. The defendant is a brick manufacturing concern and has, located on this tract of land, its brick-making plant, consisting of machinery, kilns, houses and appurtenances. A branch of the Missouri Pacific Railway passes near the defendant’s works and there is a switch track into its premises. The plant had been built about ten years before the trial, during three years of which time it had not been operated. It was purchased by defendant in 1900 at a foreclosure sale under a mortgage for $50,000 and accumulated interest, and had been operated by defendant ever since. According to defendant’s testimony the machinery, kilns, buildings, etc., constituting the plant, would cost to construct at the date of the trial $75,000 to $100,000.
On the filing of the petition commissioners were appointed by the court who made their report awarding to defendant the sum of $2,750; exceptions to the report were filed by defendant and a trial by jury was asked and granted. At the trial the jury assessed the defendant’s damages at $14,000, and a judgment for that sum less $2,750, the amount of the commissioners award which had been paid to the defendant, was rendered in defendant’s favor, and the plaintiff appealed.
The record contains in minute detail a description
I. D. A. Marks, president of the defendant brick company, a witness for defendant, after giving a description of the property and the course of the railroad through it, stated that it was property particularly valuable for brick-making purposes; being asked to state the elements going to make it valuable for that purpose he said, the quality and quantity of clay, the cheapness of fuel, the possibility of marketing brick at a low rate of freight, the abundance of water, the lay of the land so that the clay can be moved to the plant at the least expense. “Q. Do you know the market value of clay lands located in that vicinity? A. There are no other brick plants in that vicinity and there has been no transfer of property for that purpose in a good many years around there.” He was then asked to state the market value of the fifty feet of clay land of defendant taken by the railroad, to which plaintiff objected on the ground that he had not shown himself competent to answer. Thereupon in answer to questions by the court he said that he knew of no sales in that neighborhood, or nearer than four or five miles, and of them he only knew from hearsay, but that he knew the value of clay land generally over the United States, he had talked with his competitors who had estimated the value of such lands, he knew that clay lands adjacent to the manufacturing end of the plant were more valuable than those distant. The court ruled that witness might answer the question and he answered placing the value of that part of
Mr. Elliott, vice-president, secretary and treasurer of the Hydraulic Press Brick Company, a witness for defendant, stated that he had been in the business thirty years, his company owned fifty-eight plants, none in St. Louis county; they had bought fifty acres of clay land within a mile of defendant’s plant but had not worked it, they paid $105 to $125 an acre for it, it would be valued as farm land only until a brick yard is established on it. He knew defendant’s property and how it was worked; in his opinion the running of
Mr. Ittner who had been in the brick manufacturing business forty years and knew the defendant’s property, had examined it in reference to the effect of the running of this railroad through it as located, gave it as his opinion that the value of the property was depreciated to the extent of $20,000 to $40,000.
On the part of the plaintiff the testimony tended to show that the market value of land of that kind in •that neighborhood ranged from $100 to $150 an acre. The commissioners who were farmers living in the county and familiar with the value of lands in the neighborhood of defendant’s property testified as witnesses for the railroad company, and estimated the total value of defendant’s whole property, the 153 acres, brick plant and all, at from $13,000 to $28,000, and estimated the damages a.t the amount of their award, $2,750. In the opinion of plaintiff’s witnesses the defendant’s property would derive an increased value by the location of the railroad through it, in the increased facilities for reaching the markets with its products.
There was quite a conflict in the opinions of the witnesses for the plaintiff and those for the defendant
The chief insistence of appellant is that the court erred in admitting the testimony of Marks, Elliott and Ittner giving their opinions as to values and the amount of depreciation of value to the whole plant.
The grounds of the objections were that the testimony was incompetent, irrelevant and immaterial and not the proper measure of damages, and that the witnesses did not show themselves qualified to testify. Those grounds, except the last one, were too general to give the trial court an idea of the real point they were intended to cover; the only point of the objection sufficiently specific was the last, that is, that the witnesses were not qualified to give an opinion.
We have, in the witnesses for the plaintiff and those for defendant, two classes of experts, each class viewing the subject from a different standpoint. The one class is proficient in knowledge of the value of such lands in the neighborhood as farm lands, but it has no knowledge of the value of such lands when their character is changed by the erection of costly machinery and thereby being made the field of operation for a brick-manufacturing purpose; the other class is proficient in knowledge of the value of such property when converted into a brickmaking plant, but has no knowledge of its value as farming land.
Our State Constitution ordains: “That private property shall not be taken or damaged for public use without just compensation,” [Sec. 21, art. 2.] What is “just compensation1?” Those words as used in the Constitution mean exactly the. same that they mean when used in every-day business transactions between man and man; they are not circumscribed by any technical definition that places them beyond the
An assessment of damages in a condemnation case is the result of opinion, and the evidence on which it is founded is opinion evidence, even what is deemed as well-known market value of property has its foundation in opinion.
In weighing opinion evidence one of the criterions by which it is to be valued is the experience that the witness has had in the subject and his opportunity of knowing what he is talking about. The rules of evidence in regard to expert testimony are drawn from the same reason that actuate intelligent laymen in their business affairs. In the case at bar the defendant after having invested a large amount of money and established its manufacturing business was compelled to yield up a portion of its property to the plaintiff who came armed with the power of eminent domain and defendant now asks the court to award it that just compensation which the Constitution has promised. How shall we ascertain that sum? On the one hand, we have the opinions of men who have spent the best part of their lives in the same kind of business as that in which the defendant is engaged who say they know the value of such property when equipped for that business and they know the effect that the construction and operation of the railroad through it will have, but do not know the market value of such lands in that vicinity for farming or other purposes; and on the other hand, we have the opinions of men who knew the general
The court did not err in ruling that those witnesses were qualified to give expert evidence, and if the jury credited their testimony they could not have awarded less damages than they did.
II. The defendant’s expert witnesses were asked to state the elements which entered into their calculation of the depreciation of the value of the property, and among those elements they stated that the location of the railroad close to the Mins on the east cut off the only means of extension of the defendant’s plant, and that but for the railroad the capacity of the plant could be doubled at comparatively small expense. In an instruction given by the court at the request of the defendant specifying the elements of damages that might be taken into consideration the jury were au
There was no error in the court’s ruling on that point.
III. A witness for plaintiff, Wilkins, a farmer living in the neighborhood, testified that in his opinion the construction of the railroad through defendant’s property did not damage it to any extent. It is complained by appellant that on cross-examination the witness was allowed to say what the commissioners had allowed to Mrs. Chrismer, whose farm- was near defendant’s property, for her damages for the location of this railroad through it. That complaint seems to be founded on a misunderstanding' of the evidence-brought out on the cross-examination of this witness. He had been one of the commissioners who had assessed Mrs. Chrismer’s damages, and had agreed with the other commissioners in awarding her $1,650 for
IY. There was a good deal of testimony pro and con on the question of the feasibility of constructing a switch from plaintiff’s railroad into defendant’s premises so as to make it a useful appurtenance to defendant’s property. That subject was presented very favorably for the plaintiff in a series of instructions given at the plaintiff’s request. The evidence, even for the plaintiff, left it not clear, whilst that for the defendant was to the effect that the peculiar construction of the railroad and the topography of the country made it practically impossible to construct a serviceable switch from plaintiff’s railroad into defendant’s premises. But the court submitted the question to the jury and plaintiff has no right to complain if the jury came to the conclusion that the defendant could gain no benefit from that source. In instruction 5 given for the defendant the court instructed the jury that in considering the switch question they should consider that to obtain a switch the defendant would either have to obtain the consent of the railroad company or convince the Railroad Commissioners that the defendant’s business was such as to justify it, and if the Railroad Commissioners should allow it the defendant would have to bear the cost of building and maintaining it. That instruction is complained of, but we think it expresses the law correctly. The plaintiff complains also that the court nullified the instructions given at its request on this subject by the following instruction given for the defendant:
“The court instructs the jury that in arriving at their verdict they should not consider the benefits, if any, that mav accrue to defendant by reason of the*713 construction of said road which are common to other land-owners in the vicinity- of said road, parts of whose lands are not taken, nor should the jury consider the opening.up of new country hy the plaintiff as a special benefit to the defendant.”
The meaning of that instruction was that the opening up of a new country was not a benefit special to the defendant that Was not shared in by the public in general. We find no error in that.
Y. One of defendant’s witnesses testified that among the elements considered by him in estimating the damage of the defendant was the danger from fire caused by the trains passing on the trestle thirty-eight feet high over the works of defendant; when on cross-examination his attention was called to the fact that the railroad company was liable under the statute for damage by fire set out by one of its locomotives, he said that was so, but the fact that a manufacturing plant was thus exposed to destruction by fire was an element of depreciation in its value even if the owner knew that he was entitled to recover damages from a railroad company at the end of a lawsuit. An instruction given at the request of defendant informed' the jury that the railroad company would be liable under the statute to pay for property destroyed by fire set out by one of its engines, and that therefore the jury should not include in their estimate of defendant’s damages the possible damages that might be caused in that way, but that if the jury should find that defendant’s property was specially exposed to fire from that cause, different from other property in the same neighborhood, and that thereby defendant’s property was depreciated in value they should allow for such depreciation.
The opinion of the witnesses that there is a present depreciation of value in manufacturing property because of its peculiar liability to destruction by fire notwithstanding a railroad company may be ultimately
VI. Plaintiff offered evidence to show that it had offered to give the defendant the clay excavated out of the land in the construction of the road and that defendant had declined it; the testimony on objection of defendant was excluded. There was no error in that ruling; in the first place there might be a question as to whether clay quarried as that was in a general excavation for the purpose of railroad construction was of any practical value to the defendant, but even if it was, the law is not satisfied with the payment of damages in “'chips and whetstones,” but requires it to be paid in money.
VII. In one of the instructions given at the request of defendant, after enumerating various items to be considered in assessing the damages, it was said: “and generally all matters, owing to the peculiar location of the railroad over defendant’s land as may in the judgment of the jury a,ffect the convenient and future enjoyment of the same considered as a whole,” etc. Appellant complains of the word “peculiar” as there used, as an intimation to the jury that in the opinion of the court there was something peculiar in the location of the road. Whilst the word “peculiar” sometimes has an offensive meaning, yet its natural and usual meaning is particular or special, and that is the sense in which it was used in this instruction.
VIII. • A witness for the plaintiff who had been the plaintiff’s right of way agent, and had, before the commencement of this suit, with a view of obtaining a right of way by agreement, talked with Mr. Marks, the
In. the question propounded to the witness the counsel for the plaintiff stated that he did not ask for what may have been said in an effort at compromise, but only for what was said in the negotiation for the right of way. That form of the question left the right of way agent to judge whether or not the negotiation was in the nature of an effort to compromise, and if in his legal opinion it was not then he could tell all that was said. The court ruled correctly on that point.
We find no error in the record. The judgment is affirmed.