205 Mo. 167 | Mo. | 1907
This is a proceeding begun in the circuit court of St. Louis county by the plaintiff railroad company to condemn a right of way for its railroad through land of the defendant in that county. The commissioners made their report assessing defendant’s damages as $9,470, which amount plaintiff paid
I. Plaintiff’s first proposition is that defendant having accepted the damages awarded by the commissioners that was the end of the controversy, there was nothing left for trial by the jury.
This court has already decided that point against the plaintiff’s contention in several cases, the last one being a case in which this plaintiff was a party. [St. Louis, Memphis & S. E. R. R. Co. v. Aubuchon, 199 Mo. 352.] The law is that the condemning corporation shall pay the amount of the commissioners ’ award into court as a condition precedent to its taking possession of the land, and upon such payment the corporation may take possession and proceed with the construction of its road, and at the same time the owner of the land so taken or damaged may take the- amount of money so deposited, but the payment of the award into court does not preclude the corporation nor does the receiving of it by the land-owner preclude him from further litigating the question of the amount of compensation. Notwithstanding such payment into court by the plaintiff and such receiving of the amount by the defendant,
The learned counsel for appellant think that in our former decisions a word in section 4, article 12, Constitution, has not been given, due consideration, that is, the court has not observed the significance of the word “trials” but has treated it as synonomous with the word “claims.” The language of section 4 is: “The right of trial by jury shall be held inviolate in all trials of claims for compensation, when in the exercise of the right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right.” The point advanced is that in such case the right of trial by jury in that section; guaranteed applies only to trials provided for by act of the General Assembly under authority of section 21, article 2 of the Constitution where it is ordained: ‘ ‘ Such compensation shall be ascertained by a jury or board of commissioners of not less than twelve freeholders, in such manner as may be prescribed by law. ’ ’ And it is argued that since the Legislature under authority of that section of the Constitution has chosen, in section 1266, Revised Statutes 1899-, to provide for the ascertainment of the damages by a board of commissioners instead of a jury, there is to be no trial in the sense in which that word is used in section 4, article 12. "We cannot follow that argument without bringing the two sections of the Constitution mentioned into seeming conflict. Since section 21 of article 2 confers on the General Assembly the right to prescribe a procedure for the assessment of damages either by board of commissioners or a jury; if section 4, article 12 guarantees a right of trial by jury only in case the General Assembly sees
We are satisfied with our former decisions on this subject.
II. The defendant’s land consisted of a tract of 794 acres lying chiefly in St. Louis county, partly in St. Louis city. It was purchased by the late Mr. Drummond in his lifetime at the cost of $175,000, and was improved at the cost of $125,000'. There are two public roads crossing the land, but, according to defendant’s testimony, it was held, used and occupied as one body of land and esteemed particularly for that fact. The testimony for defendant tended to show that the tract as an entirety located so near the city was more valúa, able than if cut up into lots. In instruction number 1 for defendant the court said: “In passing upon this question [compensation] the jury should consider all the land owned by the defendant mentioned in the evidence, as one tract or body, if they believe from the evidence that the defendant used and occupied its said land as an entirety or as one place or premises at the time of the location of plaintiff’s railroad on .defend
The instruction does not assume that the land was used and occupied by the defendant as one tract, but submits the question of whether or not it was so to the jury and only authorizes the jury to. consider the damage to the whole tract as an entirety provided it was so used and occupied. We find no fault with that. The plaintiff’s instructions were along the same line.
In the second instruction for plaintiff the measure of damages is stated to be “the difference in the fair market value of defendant’s whole property before and-after the appropriation by the plaintiff of the strips,” and so forth. And in instruction 8 for plaintiff the jury are directed that if they find that any part of defendant’s land was not damaged they should not allow any damages for such part.
Plaintiff complains of the refusal of its 9th instruction, which is as follows: “If the jury believe from the evidence that the lands of the defendant referred to in the evidence in this case were divided into three separate bodies by public roads, in such a manner that there was no other connection between them than that all were the property of one owner; and that any one or more of such separate bodies was. not in fact damaged by the taking of part of defendant’s land for railway purposes, then in their assessment of damages in this case the jury will not allow anything as. damages
There was evidence to show that there were three public roads, one forming the western boundary and two crossing the defendant’s land, thus dividing the tract into three parts, assuming the roads to be divisional lines, but there was no evidence tending to show that those roads effected such a division of the property into separate bodies as that there was nothing left of the entirety-feature of the whole tract except the ownership.
Under that instruction the jury would have been authorized, if they had seen fit to do so,to find that the three roads alone were sufficient to destroy the continuity of the tract. The instruction was properly refused.
III. The third assignment is that the damages awarded are-excessive.
In view of the evidence we think the award was a very conservative one.
The judgment is affirmed.