St. Louis, Keokuk & Northwestern Railway Co. v. Clark

25 S.W. 192, 121 Mo. 169, 1894 Mo. LEXIS 169

Opinions

MaceahlaNE, J.

This is a proceeding to condemn a right of way, for the railroad of plaintiff, fifty feet wide, through a tract of about thirty-eight acres of land lying: within and near the northern limits of the city of St. Louis, belonging to defendant Clark. The tract is a parallelogram fronting on the Mississippi river about one thousand feet and extending back west from the river about one thousand, seven hundred feet to within about ninety feet of Hall street. The river front, extending back west about four hundred and forty-six feet, was used by Clark as a wharf. The river front both north and south of this wharf and extending back west from the river the same distance was a public wharf. Clark’s land was formerly bounded on the west by Hall street, but the strip of about ninety feet next to and east of Hall street had been sold and conveyed to the St. Louis Merchants’ Bridge Terminal Railway Company. The west side of the right of way through the public wharf, and that condemned through Clark’s land, was parallel to, and eleven feet east of, the west line of the wharf. No street or public ground except tbe public wbarf touched Clark’s property. Bremen avenue, commencing at the public wharf, runs west parallel to, and about three hundred and twenty-five feet south of, Clark’s south line and Angelica street also commencing at the public wharf ran west parallel to, and about one hundred and,forty-five feet north of, Clark’s north line. The right of way through the Clark tract took one and one hundred and thirty-five thousandths acres and left eight and sixty-eight one-hundredths acres on the east side next to the river and left twenty-eight and eighty-five hundredths acres on the west side. The only public way from one side of the right of way to the land on the other side was over the public wharf and through the eleven foot strip of that wharf west of the right of way. This passway could be used at either the north or south end of the land condemned. Along Hall street the 8,t. Louis Merchants’ Bridge Terminal Railway is laid. The situation will be more readily understood by reference to the following plat:

Tho petition, asking the condemnation of the land for the construction, maintenance and operation of its road and for tho appointment of commissioners to assess tlio damages therefor, was filed in the circuit court of the city of St. Louis. Commissioners were appointed, who afterwards made report allowing $87,510 as damages. Neither party being satisfied with tho award, both demanded a jury. Plaintiff thereupon paid the amount of the award of the commissioners into court, took possession of the land and constructed its road.

A jury trial ’was afterwards had and the damages assessed at tho sum of $72,000 and interest thereon from June 29, 1831 (the date plaintiff paid the money into court) at sis per cent., making $2,019.18. Judgment was thereupon rendered for said sum, and it was ordered that tho sum of $74,019.18 be paid defendant out of t!ie money deposited in court and that the balance be paid plaintiff. Plaintiff gave bond and appealed from this judgment to this court. All the errors assigned grow out of the rulings of the court upon tho trial.

I. The first instruction given at request of defendant is tho subject of earnest complaint and the declaration of law therein announced is severely criticised. The instruction is as follows:

“1. The court instructs, the jury that the railroad company is entitled to the exclusive possession and control of its rigid of way across Clark’s land and neither Clark, nor anyone claiming said land or any part thereof has tho right to cross said railroad tracks, except upon a street of alley.

It is manifest that the damage defendants may suffer by tho maintenance and' operation of the road depends largely upon the right to use the railro-d track and right of way in passing from one part of tlioir land to the other. The question is a vital one in this case and merits careful consideration. The- constitution itself provides that “the fee of land taken for railroad tracks without consent of the owner thereof shall remain in such owner, subject to the usé for which it is taken." Sec. 21, art. 2, Const. of Mo. A railroad company, therefore, in securing land for its tracks by condemnation, under this limitation of its power, only acquires an easement therein. This constitutional provision, by its terms, applies only to lands condemned by railroad companies, but the same principle is applied to rights acquired by condemnation for other public uses. Belcher Sugar Refining Co. v. Elevator Co., 82 Mo. 125. And was applied to land condemned for railroad purposes before the adoption of our present constitution. Kellogg v. Malin, 50 Mo. 496; Evans v. Haefner, 29 Mo. 150.

We must take it, then, as settled that plaintiff could acquire by these proceedings only the right to use the land for the purposes of its railroad, and the fee to the land taken remained in the defendants, but it does not follow that the owner retains even the right to a limited use of the surface of the land condemned.

It was said by Napton, J., in Snyder v. Warford, 11 Mo. 514, in speaking of the rights of the parties in land over which a private right of way existed that “it is not any interest in land, but merely an easement which conflicts not in the slightest degree with the absolute proprietorship of the owner.” On the other hand while under the constitution the fee to the land condemned for public use for a railroad remains in the owner, it contemplates that all his proprietary rights, at least to the surface, may be divested.

It is clear that the relative rights acquired by the one obtaining an easement and of those remaining in the owner, depend much upon the character of the use to which the easement is applied. A use for telegraph and telephone wires above the surface and for water mains and sewers beneath the surface would but slightly interfere with the proprietorship of the owner upon the surface of the ground. A plank or macadamized road on the surface would only interfere with the actual occupancy of the owner. Unless forbidden by some statutory regulation he could use all these easements in any manner not inconsistent with thefull enjoyment of the uses to which they were intended to be applied. He could plow, plant and reap beneath the wires and over the sewers without material interference with these easements.

There is no reason, either under the constitution or common right, why all public easements should not be subject to reasonable regulations by the state. One could not defend against the charge of obstructing a public road on the ground that he was the owner of the fee therein; nor would the fact that he had left unobstructed a passway sufficient for all public,travel, excuse him. The same may be said of horse racing or shooting at a mark on a public road.

It is unnecessary to state that the uses made of railroad tracks are vastly different from those of any other easement. Trains are not infrequently run upon them at the rate of twelve or fifteen hundred yards per minute. This rate of speed is demanded by the traveling and business public. Trains are run at all hours of the day and night. The least and most temporary obstruction is liable to cause terrible destruction of life and property. It takes no argument to show that the owner of a fee has no more right to imperil the safety of those lawfully using the track than has a stranger. The constitution does not limit the proprietary right in the track of the road from which the owner may be excluded. That all proprietorship to the surface of the ground may be divested, if safety demands it, is plainly implied. The right of a railroad company to the use of its track is of necessity paramount to every right of the owner of the foe which is inconsistent with such use.

Much has been written on both sides of the question whether necessity demands an exclusive use 'by the company and excludes all proprietorship of tho owner. Through industry of counsel the cases on both sides have been collated and will bo found by reference to their briefs. These cases are useful in so far as they express general principles but most of them are governed by local law and in that respect are but little aid to us. It seems to me, upon principle, that the security of life and property and the safety of employees who operate trains, which consideration should be paramount to all private rights, require that railroad companies, except at public grounds, roads, streets and private crossings, should have a track clear and unobstructed at all times.

Aside from general principles, the policy of this state, as the same is indicated by legislation, clearly excludes the owner of tho fee and all others from using a railroad track for any purpose other than at public places and private crossings. The right of the state to do so under police power can not be questioned. Railroads are built, maintained and operated for public uses, as well as for the private gain of the owners. In view of these public uses alone are they 'granted the power of eminent domain. They are controlled by the state, not only in respect to the rates of charges for carriage of freight and passengers, but are subject to the police regulations in respect to tho management of their trains, the rate of their speed, tho use of signals, and the condition of their tracks and machinery, all in the interest and for the safety of the lives and property of the people.

An examination of the statutes will show that railroad companies are either required or permitted to securely fence their roads at every point not required for other public uses. Section 2611 of the Revised Statutes requires the erection of fences on both sides of the road “where the same passes through, along or adjoining inclosed or cultivated fields or uninclosed lands.” This would seem broad enough to include every part of the road in which a concurrent right of user by the public does not exist. The courts have made exceptions to the application of this law to tracks inside the limits of incorporated towns or cities, but they hold that even at these excepted points the companies have the right to fence, and if they do not do so that fact raises an inference of negligence in a suit for killing or injuring an animal at such unfenced point. Radcliffe v. Railroad, 90 Mo. 133; R. S. 1889, sec. 4428. Again, if stock go upon a track on account of the same not being fenced and are frightened by a locomotive or train of cars, and are thereby injured, the company is required to pay for the damages sustained and, if suit is brought, to pay also a reasonable attorney’s fee for !>. '"ting the same. Secs. 2612 and 2613. The ' > ]• 1 iws also apply to depot grounds and side [.a where it will not interfere with the use of the public or operation of the road. Robertson v. Railroad, 64 Mo. 412; Morris v. Railroad, 58 Mo. 78; Swearingen v. Railroad, 64 Mo. 73. By this legislation the policy of the law is clearly shown to be that railroad tracks shall be inclosed by fences where it can be done without interfering with other public uses.

Again, section 2611, supra, provides that “if any person shall ride, lead or drive any horses or other animals upon such road within such fences” without the consent of the corporation, “he shall for every such offense, forfeit and pay a sum not exceeding $10.” The same section provides that one injured by a train while walking on the track shall in an action to recover damages therefor be deemed a trespasser. While he could not be prosecuted for a trespass, the provision of the statute clearly shows that he had no right to go upon the track. Barker v. Railroad, 98 Mo. 53.

Now, in none of these provisions is there an expressed exception in favor of the landowners, except in respect to the right to farm crossings and in that case the crossing is required to be kept closed by gates. No more emphatic declaration of the policy of the state that a railroad company shall have the exclusive possession and control of its roadway, could be made, than the statute declaring that it should be inclosed by fences. The owner of the fee, as well as others, is excluded from concurrent use, unless he be entitled to a crossing, either under the statute or from necessity. Gorman v. Railroad, 26 Mo. 447; Railroad v. McGrew, 104 Mo. 297.

II. It is claimed furthermore that the instruction is erroneous in that it excludes defendant from a crossing over the railroad track from one part of his land to the other and thereby entitles him to increased damages by reason of nob being able to use the two parcels of his land in connection with each other in the business to which they are adapted.

On this question the opinion of the court is expressed by Black, 0. J., in a separate opinion, in' which the instruction is held erroneous for the reason therein given. The writer agrees that the instruction should not have been given, but for the reason that defendant is believed to be entitled to such crossings as would be necessary for the convenient use of the two tracts in connection with each other, and if he refused to accept them he should not be allowed to recover damages resulting from their absence.

III. We think the evidence of sales of similar property to that in question, made in the neighborhood, about the same time, was admissible to aid the jury in determining the damage to which the owner was entitled. The value of property is ascertained largely from such sales, and the opinions of witnesses as to values are largely predicated upon them. It is best, when it can be done, to put the jurors in possession of all the facts from which values are ascertained, and allow them to draw the conclusion therefrom. Witnesses basing their opinions upon recent sales, of like property, are liable to exaggerate or underestimate values; in any consideration they are no more capable of deducing fair conclusions from the known facts than the jury. The object is to ascertain the general market value, and if particular sales are made under exceptional circumstances the fact can be shown, and the jury can determine its probative force. Certainly no more reliable method of determining the fair market values of lands can be reached than that derived from bona fide sales of similar lands in the vicinity. The objection that such evidence raises collateral issues, as to the character of the land sold, and the circumstances of such sales, is more than compensated for by its value in aiding the jury to a correct conclusion. The weight of authority also supports this view. Lewis on Eminent Domain, section 443; 6 Am. and Eng. Encyclopedia of Law, 619, and cases cited by each.

The case of Springfield v. Schmook, 68 Mo. 394, is not an authority against this position. In that case evidence of what damages had been allowed other landowners was properly condemned. As said by Hough, J., in that case: “The assessment of damages in the other cases may have proceeded upon incorrect prin ciples, or the amount paid may have been the result of contract and in excess of the true value.” Such evidence would introduce into the case collateral issues as to the theory upon which the damages were assessed, the benefits allowed, the manner in which the improvements affected the property and possibly others, and, after all, the assessment may have been the result of an arbitrary compromise of opinion by the jury or commissioners.

IV. Defendant was permitted to introduce evidence of an oral agreement between him and the Merchants’ Bridge Terminal Railway Company, in consideration of a conveyance to said company of about ninety feet off the west end of his land east of and adjacent to Hall street, to the effect that said company would construct side tracks to connect its road with tracks that might be built on Clark’s property. Objection was made to the competency of this evidence on the ground that such an easement as is contemplated by the agreement could only he created by grant and was within the statute of frauds.

Contracts within the statute of frauds are not void but only voidable at the election of the party to be charged. He may waive the necessity of the required by the statute and thereby make the binding. Aultman v. Booth, 95 Mo. 336; Moore, 90 Mo. 343.

It may also be said that as the stai affects only the remedy of the party sought †.< , its benefits can not be claimed by one who i¡. to the contract and is not sought to bo charged the Browne on the Statute of Fraqds [4 Ed.], section Davis v. Inscoe, 84 N. C. 396; Cooper v. Hornsby, 71 Ala. 62; Christy v. Brien, 14 Pa. St. 248. I am of the opinion the court committed no error in admitting the evidence.

V. It has been held in the appeal of defendant in this case that he was entitled to have the damages awarded by the commissioners, paid to him, or into court for him, before plaintiff had a right to the possession of the property. Defendant was not, therefore, entitled to interest on the damages found by the jury. The money was paid to the clerk for him which was a sufficient compliance with the law. It was subject to the order of the court (Railroad v. Fowler, 113 Mo. 458; Railroad v. Clark, 119 Mo. 357, and should have been paid to the defendants when demanded by them.

It appears from the judgment of the court that the money paid to the clerk for defendants has, by order of the court, been loaned part of the time. Defendants being entitled to the money would be entitled also to what has been earned and added thereto by way ■ of interest, but not to interest on the amount assessed by the jury.

VI. Plaintiff assigns as error the giving of the following instruction:

“2. The court instructs the jury that the construction of the Keokuk Railroad across Clai'k’s land has deprived that portion of his land lying east of said railroad, of the right to connect by switches, with the Merchants7 Bridge Terlninal Railway Company, granted by ordinance number 14,078; and if this deprivation is an injury to said eastern portion, then said injury should be considered by you in estimating the damages in this case.77

We think the instruction correct notwithstanding an ordinance of the city required and authorized said railway company to connect its tracks by switches with any warehouse, factory, store, lumber or coal yards of any commercial manufacturing establishment of any individual or corporation located adjacent to its railway, It is manifest that such switches as are contem plated are for private and not public uses. It was recently decided by this court that the city under its general power to regulate the use of streets had not the power to legalize the construction and operation of railroads thereon for private purposes only. Glaessner v. Brewing Ass’n, 100 Mo. 514. Much less could it empower a railroad corporation to cross the track of another railroad for such purposes. Private property can not be taken for such private uses without the consent of the owner. Section 20, article 2, constitution of Missouri.

VII. We see no objection to instruction 3 given for defendants, which is.as follows:

“3. The court instructs the jury that, though you may believe from the evidence that it is and has been the custom of the Keokuk Railroad Company to make no charge for hauling over switches onto their road, yet the court tells you that the road is not bound to continue this custom, but may at any time abandon it and make charges for hauling over switches onto their road.7 7 The law is properly declared in the instruction.

We find no error, except as to the ruling of the court as to the rights of the parties in respect to crossings and as to the instruction authorizing interest on the amount of damages awarded. Reversed and remanded. Barclay, J., does not sit. All the other judges concur in paragraphs 1, 3, 6 and 7. All concur in paragraph 5, except Sherwood, J., who dissents. All agree to what is said in paragraph 4; but Brace, Gantt, and Sherwood', JJ., are of the opinion that the evidence offered refers to matters too indefinite and remote to be considered in estimating damages.

SEPARATE OPINION.

Black, C. J.

The property over which the plaintiff seeks to condemn the right of way, is within the corporate limits of the city of St. Louis. It has a river front of about one thousand feet and extends back west so as to include about thirty-eight acres. There is a public wharf to the north and to the south, constituting the only way of ingress and egress. The railroad cuts off about eight acres of the river front. The whole tract has been used for a saw mill and lumber yard, and the eight acres are a valuable adjunct to the other part for such and like purposes. The question of crossings over the railroad to and from the river front is therefore a vital and important question in this ease in determining the amount of damages to be allowed.

On the trial of the case the plaintiff offered in evidence the following stipulation signed by its engineer:

“The plaintiff in the above entitled case, hereby declares and stipulates that its railroad through and over the land of the defendant, Wm. G. Clark, in the petition mentioned, and in this proceeding sought to be condemned, shall be constructed in the manner following, to wit: The center line of said railroad will be thirty-six feet (36 ft.) east of and parallel with the west line of the wharf as established by ordinance number 5403 of the city of St. Louis, Missouri; and that said company will construct, and maintain for the use of said defendant Clark, his heirs and assigns, across the tracks of its railroad within the land of said defendant Clark, two crossings, which shall be located at such places as said defendant shall select; and that said company will lay at each of said crossings, respectively, on each side of each rail of its tracks, securely spiked to the cross-ties, a plank of not less than ten inches (10 in.) in width and not less than two inches (2 in.) in thickness, and not less than twenty-four feet (24 ft.) in length, the same to be of good, sound timber; and will fill the spaces between the inside planks with macadam or gravel, even with the top of the planks; and will make good and sufficient approaches to said crossings, respectively of equal width with said crossings, and of easy grade, and will cover said approaches with macadam or gravel to a depth of not less than six inches (6 in.), and will substantially and properly join said approaches up to the plank required to be laid outside of each rail.7’

The defendant objected to the stipulation because incompetent and irrelevant, and the court sustained the objection. The case was then submitted to the jury on the theory that defendant was not entitled to have a crossing or crossings.

If the right of way is condemned on the petition as it stands with the proposed stipulation excluded, the company will have the right to fence the track on both sides. This follows from the construction given by this court to the fourth section of the damage act. Radcliffe v. Railroad, 90 Mo. 133. It is not important in this case to determine whether the defendant has the right to the necessary statutory farm crossings; for the law contemplates that such crossings may and will be closed, while the stipulation tenders two open crossings. It does not in words say open crossings, but they are to be made as road crossings are required to be made, and we understand it to mean two open crossings not less than twenty-four feet in length each. Such a crossing is a different thing from a statutory farm crossing. The question is then presented whether the company in condemning a right of way may reserve to the landowner, without his consent, one or more open crossings and have the damages assessed on the basis that the land owner has and retains such an easement.

The statute gives to a railroad company the power to cause to be condemned for right of way a strip of land not exceeding one hundred feet in width. R. S. 1889, sec. 2543. And the company seeking to condemn must apply to the court or judge ''by petition, setting forth the general directions in which it is desired to construct’’ the railroad "over such lands, a description of the real estate or other property which the company seeks to acquire,” and the name of the owner or owners; and it is made the duty of the commissioners to give in their return "a specific description of the property for which such damages are assessed.” R. S. 1889, secs. 2734, 2736. The statute does not in terms provide that the company may reserve to the landowner an easement.

The question to be decided has received fuil discussion by other courts. In Tyler v. Hudson, 147 Mass. 609, the town had the authority to take by purchase or otherwise the waters of a pond and all lands, rights of way and easements necessary for holding the water. The town in taking the land made a reservation in these words: "In this taking, the reservation is expressly made to the eight landholders above named, their heirs and assigns, for their cattle to come to said Grates’ pond to drink, and to said owners, their heirs and assigns, to come to said pond to cut ice for domestic purposes, and to otherwise enjoy the use of said pond.” The trial court allowed proof of damages, the same as if no reservation had been made; and of this ruling it was said: "The right to take the land by purchase or otherwise does not involve the obligation to take the whole interest in land purchased or otherwise taken. That a right of way could be reserved in land taken by purchase will not be questioned; the objection to reserving a right in the owner in land taken in invitum is technical, rather than substantial. It is true that, in a sense, it may be said to create a new estate in him without his assent. A technical answer might be, that, the estate being for his benefit, his consent and acceptance simultaneous with the taking will be presumed. The real answer is that the refinements and nomenclature of conveyancing will not be applied to a taking by .right of eminent domain. No more land and no greater interest in it need be taken than the public use requires. If the right to make a particular use of the land is of benefit to the owner, and puts no new burden upon him, and does not interfere with the public use for which the land is taken, there is no reason that he should be deprived of that use and be paid its value as damages; all the right to use the land, except that right may be taken, and that be left in him to enjoy or not as he pleases. If the right is of value, a valuable right in the land will remain in him, though he may refuse to exercise it. We are of opinion that the whole estate in the land was not taken, but that a right in it appurtenant to the whole land of which it was parcel was left in the owners. Whether that right diminished the damage to the adjoining land should have been left to the jury.”

In Oregon R’y & Nav. Co. v. Owsley, 13 Pac. Rep. 186, the company appropriated a right of way under a statute like that of this state. The court after stating that it was not necessary to decide whether the corporation acquired the fee or an easement, uses the following language: “We see no reason why any corporation seeking appropriation of a right of way should not be entitled to the benefit of all the ingenuity and economy it may have at command in the planning and construction of its works, not only with reference to outlay for material and labor, but also with reference to compensatory damages to property owners along its right of way. If it sees fit to leave unappro priated so much, of the landowner’s interest as consists in an easement for irrigating ditches across the right of way, there is no rule of law of which we are aware to prevent it doing so. It surely can not he sound law that the corporation must take everything or nothing. Rather, it is bound to use its right of appropriation so as not to destroy or interfere with or debar any rights which may reasonably stand without prejudice to its own legitimate operations. The principle upon which it is allowed to become the agent of the commonwealth, to exercise the right of eminent domain, is not that it may as such agent do whatever it pleases, but rather that it may do whatever is reasonably necessary and convenient. Anything beyond this is not the taking of private property for public use, but the taking of it for private use. That same limitation which commonly attends the exercise of delegated power granted by a legislature in general terms, and which courts have often had occasion to recognize and apply in eases of municipal corporations, namely, that the exercise may be within the bounds of what, under all the circumstances, is fair and reasonable, we hold obtains in cases of the kind now before the court. This is the limit, on the one hand, of the liability of the landowner to have his property taken, and on the other of the liability of the appropriating corporation to him for compensation.” A like line of reasoning is pursued in a number. of well considered cases. Railroad v. Allen, 22 Kansas, 285; McGregor v. Gas Co., 21 Atl. Rep. 13.

As this property is within the corporate limits of St. Louis, the plaintiff will be bound to operate its trains under municipal regulations; and it may well be that two crossings can be reserved to the defendant without detriment to the plaintiff or the public service, and at “the same time inflict less injury upon the defendant.

The company had the undoubted right to elect, as it did, to take a strip fifty, instead of one hundred, feet in width, and if it sees fit to reserve two open crossings for the defendant’s use, we can see no reason why the reservation may not be made, and the damages then assessed on the basis that the defendant retains that interest in the land. The statute very justly and properly places restrictions upon the exercise of the right of eminent domain, but it does not follow by any correct reasoning that the condemning company is bound in all cases to go to the full extent of the law.

We-are aware there are cases which seem to hold that to allow the company to reserve a right to the owner of the land, when he does not ask it, is to pay him for the land taken in something other than money; but it must be evident that such reasoning is not sound. The reservation of the easement being made, the damages are assessed in view of the interest thus retained and not condemned. The company pays for what it needs and takes, and the landowner is allowed all the damages which he in fact sustains.

Where the condemning company proposes to reserve to the landowner some right or easement not reserved by the statute itself, the reservation should be made in the original, or by an amended petition. In other words the petition should set forth what the company proposes to take. The easement reserved to the landowner should be specifically defined and located, so that the rights of the parties may be then and thereafter protected. If the proposed reservation is not specifically stated and defined,'the court can sustain a motion to make the petition more specific and definite in this respect.

In this case no objection was made to the stipula -tion because not made a part of- the petition. Had such an objection been made, the substance of it would doubtless have been inserted by way of an amendment.

For the reasons stated we think the court erred in ■excluding the stipulation.

Brace, G-antt, Sherwood .and Burgess, JJ., concur. Maoearrane, J., dissents.