St. Louis, Oak Hill & Carondelet Railway Co. v. Fowler

20 S.W. 1069, 113 Mo. 458, 1893 Mo. LEXIS 11

• Court: Supreme Court of Missouri
• Decided: January 23, 1893
• Status: Published

Opinion

Black, P. J.

Plaintiff commenced this suit on the eighth of October, 1886, in the circuit court of St. Louis to condemn a right of way over twenty or more pacéis of land owned by different persons. Isaac Rothan, Rosa G-oldsmith and Meyer Goldsmith, her trustee, owned one parcel containing some twenty-four acres. .Having been duly served with summons, they appeared and objected to the appointment of commissioners on these grounds: First, because the damages should be assessed by a jury; second, because the petition did not describe the property to be taken. These objections were overruled, and they excepted. Commissioners were appointed, who made report on the twenty-second of November, 1886. On that day plaintiff paid into court $10,025.80 “to cover the awards of said commissioners.’’ The report of the commissioners is not preserved in this record, so that we do not know the amount awarded to these defendants, for it is evident that the above amount is the aggregate of the damages allowed to the various property owners.

On the second and eleventh days of December, 1886, these defendants filed exceptions to the commissioners’ report. The exceptions are not in the record before us. On the twenty-seventh of the same month the court sustained the exceptions, set aside the report and ordered a new appraisement. The record does not show what, if anything, was done between this date and June, 1888, but at the last named date the death of Rosa Goldsmith was suggested, and her heirs and devisees were made parties. This was done on their motion and after the service of scire facias upon plaintiff, issued at their request.

On the fifth of November, 1888, at the October term for that year, the plaintiff applied for a change of venue, stating in the petition therefor that the inhabitants of the city of St. Louis were prejudiced against it, and that knowledge of the existence of such prejudice first came to it on the second of November, 1888, and since the adjournment of the last regular term of court. This report was verified by the affidavit of George C. Smith, secretary of the plaintiff corporation, who says the matters and things set forth in the petition are true, and that the affiant and the plaintiff have just cause to believe the plaintiff cannot have a fair trial in the city of St. Louis on account of the cause alleged in the petition. Notice of an intention to make this application was served on the attorney for all of these defendants on the second of November, three days before the application was filed in court. In this notice defendant, Meyer Goldsmith, is not described as trustee for Rosa Goldsmith, but simply as Meyer Goldsmith. The other defendants are all properly named. A jury trial was then had, resulting in a verdict for defendants for $11,541.20, and from the, judgment thereon both sides appealed.

1. The first question to be considered is the defendants’ objection that the petition fails to describe the land sought to be appropriated. Thé petition states, among other things, that the plaintiff “has duly surveyed and located and is proceeding to construct” a line of road beginning, etc.; that it is necessary to acquire the right of way through various parcels, and among others “a strip of ground or right of way sixty six feet wide across a certain tract of land,” describing the defendant’s twenty-four acres by its boundaries, “the area of right of way required being one and forty-two hundredths acres more or less.” * * * “And for a more accurate and perfect description of said several parcels or tracts of land above described, and the right of way over them sought to be acquired, reference is hereby made to the map or plat of said lands above referred to, and herewith filed and made a part hereof, and upon said plat or map said above described rights of way are colored blue.”

The entire tract is bounded in part bystreets. The plat shows these streets and the other boundaries, that the railroad enters at the north side and passes on in a southeast direction by a slight curve for a part of the way and out at the east side, thus cutting off three or four acres in the northeast corner. The line of the road is shown on the plat by the strip colored blue, and there is a center line through this strip with figures indicating thirty-three feet on each side of the center line. The following figures and letters also appear upon the face of the map, namely: “55x31.6, 2°36' C,” thus designating the degree of the curve with the right of way as we understand. The plat professes on its face to be drawn to a scale of two hundred feet to the inch. The streets on, and the lines of the adjoining property, are all disclosed by lines. There are no figures or field notes on the plat to indicate where the road enters or leaves the land. To do this, resort must be had to the scale, which, as we have said, is stated on the plat itself.

According to the statute the petition should set forth “a description of the real estate or other property which the company seeks to acquire.” There is no doubt but the petition may, .as does this one, refer to a plat filed therewith for an accurate description of the property sought to be taken, and, if well described on the plat, that is sufficient. The plat in this case appears to have been prepared with care, and since it specifies the scale on which it is made, it cannot be difficult for a surveyor to locate the strip with certainty; and, that being so, the description is. sufficient. Descriptions in many respects like this have been held sufficient. Railroad v. Kellogg, 54 Mo. 334; Railroad v. Story, 96 Mo. 611; Cory v. Railroad, 100 Mo. 284; Railroad v. Town-Site Co., 103 Mo. 452: Mills on Eminent Domain, sec. 115.

2. The plaintiff on its appeal assigns as error the action of the trial court in refusing a change of venue. The defendants seek to support this ruling on several grounds, and the first is that the statute providing for change of venue in civil action does not apply to eminent domain proceedings. Of the cases cited by the defendants that of Railroad v. Railroad, 65 Cal. 394 is most in point. There the proceedings to condemn were commenced in the county where the property was situated, and it was contended that another county was the residence of the defendant corporation, and therefore the place where the trial should be had. The court held that the law did not define the place of residence of a corporation, and that the proceedings were properly brought and were to be tried in the county where the land was situated. That case, it is plain to be seen, has no direct bearing on this one.

The code of civil procedure declares that there shall be but one form of action for the enforcement or protection of private rights and redress of private wrongs, which,shall be denominated “a civil action;” another section provides that “a change of venue may be awarded in any civil suit” for the specified causes. It has also been constantly ruled from an early day that appeals may be taken in these eminent domain proceedings, and this because the code allows an appeal to every person aggrieved by any “final judgment or decision in any civil cause.” Railroad v. Lackland, 25 Mo. 515; Railroad v. Railroad, 94 Mo. 540.

Though these provisions of the code are broad and comprehensive, still it is clear that they do not, standing alone, give either party a right to a jury trial in a special proceeding like this; and hence these general provisions in the code would not, by themselves, give a party a right to a change of venue because of the prejudice of the inhabitants. The constitution, however, of 1875 guarantees to either party to a proceeding like this to condemn land for public use the right to a jury to assess the damages, and this means a common-law jury of twelve men. Either party has a right to a jury without any other showing than simply a demand therefor. This we have often held. As was said in Railroad v. Story, 96 Mo. 611: “The jury there meant is the historical jury of twelve men, with all of its incidents;” and a right to a change of venue because of the prejudice of the inhabitants is one of these incidents given by the code.

Besides all this the statute relating to the appropriation and valuation of lands to public use requires the proceedings to be commenced by summons. Commissioners are appointed in the first instance; but, as has been said, either party is entitled to a jury upon ■demand therefor. The court may award a new appraisement, and “such new appraisement shall, at the request of either party, be made by a jury, under .the supervision of the court, as in ordinary cases of inquiry of damages.'1'1 Revised Statutes, 1879, sec. 896. This statute means that the jury is to be organized and the trial conducted as in other jury cases, and a change' of venue because of the prejudice of the people is an incident to such' a trial. The fact that these proceedings are of a summary character up to the demand for a jury furnishes no reason why the jury should not be an impartial one and free from any prejudice prevailing in the particular locality. We conclude that these provisions of the code relating to a change of venue because of prejudice of the people are made applicable in a proceeding to condemn by force of the constitution and the eminent domain act.

The objection that the notice of the intended application for a change of venue was no notice to Meyer Goldsmith in his capacity of trustee for Rosa Groldsmith is purely technical and without any merit. The notice gives the court in which the cause is pending the name of the plaintiff and the names of all the defendants, and is addressed to David Groldsmith, “attorney for the above named defendants in the above cause.” The mere fact that Meyer Groldsmith is described by his name without the addition of the words “trustee for Rosa Groldsmith” is wholly immaterial. He was made a party in his trustee capacity, and could not have been misled or in any way prejudiced by the omission.

The further point that the application fails to show due diligence is equally unfounded. It states that knowledge of the existence of the prejudice first came to the plaintiff on the second of November, 1888, and on that day notice of the intended application was given, and this was before the day on which the cause was set for trial. The application was made to the court on the fifth of the same month. The diligence required by the statute is diligence in making the application after knowledge or information of the existence of the cause therefor. Surely there was, according to the affidavit, no lack of diligence in that respect in this instance.

Finally, as to this branch of the ease, it is urged that the application should have been supported by the affidavit of the attorney for the plaintiff, or by its president or other chief officer, and that an affidavit by the secretary is insufficient. It has been several times held that the affidavit must be made by the party himself and not by his attorney or agent. Huthsing v. Maus, 36 Mo. 101; Norvell v. Porter, 62 Mo. 309; see also 89 Mo. 58; 89 Mo. 232. But these cases cannot rule one where the party making the application is a corporation ; for in such case the application must be made by an officer or agent from necessity. In Corpenny v. Sedalia, 57 Mo. 88, objection was made because tbe application was verified by tbe attorney for tbe defendant, instead of tbe mayor, and it was beld there was no force in tbe objection. Tbe fact tbat a secretary bas but few implied powers to represent tbe corporation in its business transactions is unimportant. His functions may be clerical only, and yet be may be tbe only officer wbo possesses tbe information necessary to enable one to make tbe affidavit. In our opinion tbe application for a change of venue by a corporation may be verified by any officer or agent of tbe corporation. Tbe application being sufficient in form and substance, tbe trial court erred in overruling it. Mix v. Kepner, 81 Mo. 93; Dowling v. Allen, 88 Mo. 293. And for this error tbe judgment must be reversed.

3. It is next insisted tbat tbe court erred in admitting evidence produced by tbe defendant. Tbe entire tract of twenty-four acres is bound north and east by streets and south by tbe Manchester road. The railroad cuts off three or four acres in tbe northeast corner, leaving tbe balance south of tbe railroad and north of tbe Manchester road. A witness called by tbe defendant stated tbat tbe whole tract was worth from $1,800 to $2,000 per acre and tbat tbe three or four acre piece was damaged fifty per cent, of tbe above stated value. When speaking of tbe other part be was asked this question: “You stated tbe part of it next to tbe railroad which you pointed out would be affected. Now I want to know bow it would be affected; would it be damaged or benefited, tbat is, tbe part next to tbe road?” To .which be answered, over tbe objection of tbe plaintiff: “I think it damaged about twenty-five per cent.” Tbe objection interposed to this question was and is tbat it allowed tbe defendants to make imaginary sub-divisions of tbe tract, and then show that the portions set off by these imaginary lines were damaged.

There is no merit whatever in the objection. It is very true, as we have held, that the damages to be allowed by the jury are not confined to the small parcels or government subdivisions over which the railroad may pass. The land owner is entitled to the damages for the injury to his whole tract, not simply to the parcels touched by the road. But in order to enable the jury to reach this result, it is perfectly competent and proper to show what parcels are injured and to what extent they are injured. The witness being of the opinion that the land next to the railroad would be injured, he had the right to express this opinion, and to point out on the map in evidence to what distance from the railroad it would be injured. From all these details the jurors can make up their verdict as to the damage to the whole. Such evidence is far more satisfactory than that drawn from the witness by one general question which undertakes to cover the whole issue to be decided by the jury. There was no error in overruling this objection and the many other like objections made by the plaintiff during the progress of the trial'.

4. The plaintiff, on the cross-examination of defendants’ witness, asked this question: ‘‘What is the remainder of the Rothan-Gtoldsmith tract left after the right of way was taken out of it by the railroad company worth; was it worth as much per acre after the right of way was taken out as it was before?” Objection being made, the trial judge said: í£As I understood the question, it would allow the witness to take into consideration the benefits common to other land in the neighborhood, which part of the land might derive, and set such benefits off against injuries to other portions of the land. If that is (the meaning of your question, I will sustain the objection, and interpret your meaning to be that.” No change being made in the form of the question, the court sustained the objection, and the plaintiff excepted.

The law is well settled in this state that benefits arising from the proposed improvement, which are common to other property in the vicinity, are not to be considered in reduction of damages. The benefits- and only benefits which can be considered in reduction of damages are those which are special and peculiar to the particular property, a part of which is taken. The plaintiff, in the cross-examination of a prior witness produced by the defendant, drew out evidence to the effect that part of the tract would be benefited by the road and part of it would not. We find considerable evidence tending to show that part of this tract would receive benefits of a character common to other lands. As there was evidence tending to show that portion of the defendants’ land would receive general benefits common to other lands, the objection was properly sustained. Aside from the value of the land actually taken, the question seeks to get an opinion as to what the verdict should be. It is very general and seeks to cover the whole subject of damages and benefits to the land not taken. If counsel will ask such general questions they must so frame them as to exclude the consideration of general benefits. This and other like questions asked by the plaintiff were properly excluded. It follows from all this that the court did not err in refusing the plaintiff’s second and third instructions.

5. During the trial before the jury the defendants offered to make proof of the value of the land at that date, namely, the ninth of November, 1888; but the court rejected this proof, and held that the damages were to be assessed as of November 22, 1886, the date at which the commissioners made their report, and of this ruling error is assigned by the defendants.

In the recent case of Railroad v. Town-Site Co., 103 Mo. 451, the railroad company took possession and built its road upon the land in September, 1886, but did not commence proceedings to condemn until the sixth of August, 1887. The property increased in value in the meantime, and it was held that the damages should' be assessed on the basis of the value of the land at the date of the assessment. The assessment in question there was ■ made by commissioners. Here the company paid the amount of the commissioners’ award into court on the day the.award was made.

While it does not appear from the evidence in this case when the company took possession, it seems to be conceded that the company did proceed with the work of constructing the road over this land shortly after the money was paid into court. We have just held in another case between these parties that the company, had the right to enter upon the land and proceed with the construction of the road, upon paying to defendants, or into court for them, the amount of the award, and this too notwithstanding exceptions filed to the report. Indeed, the statute says that “on making such payment it shall be lawful for such company to hold the interest in the property so appropriated.” Where, as here, the amount of the award is paid into court on the incoming of the commissioners’ report, the date of making their assessment is the date of the appropriation. Any subsequent reassessment relates back and takes effect as of that date. We think it follows from these considerations that where the company pays to the landowner, or into court for him, the amount of the commissioners’ award, that any reassessment af the damages must be on the basis of the value of the land at the date of the commissioners’ report. This rule -works out substantial justice to both parties.

6. But the trial court directed the jury to allow interest on the amount of damages found by them from the twenty-second of November, 1886, the date of the commissioners’ report, down to the date of the trial before the jury, and of this ruling the plaintiff complains.

If the defendants had the right to withdraw and use the money paid to the clerk of the court, then it is clear the plaintiff ought not to pay interest on that amount; but, if the defendants had not the right to withdraw and use the money, then plaintiff ought to pay interest. Now we have held in the injunction suit between these parties, that the company can on paying to the landowner or into court for him, the amount of the commissioners’ award, take possession ■of the land and construct its road thereon; that the amount of the first award being paid to the owñer or into court for him, the company can proceed to use the land appropriated; and -that- the # company or landowner may thereafter prosecute exceptions, have a jury trial and appeal to this court. The company has the right to use the property by paying the amount of the first award; and the question is, whether the landowner has the corresponding right to withdraw and use the money pending further proceedings. We are of the opinion he has such right. As said in the other ■case between these parties, section 21 of article 2 of the constitution is emphatic in two respects: First, the compensation must be ascertained, either by a jury or by a board of commissioners of not less than three f ree-holders; second, the compensation thus ascertained must be paid to the owner or into court for him, before the condemning company can take possession. To use the language of the constitution, “And until the same (the compensation) shall be paid to the owner or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.”

This constitutional provision contemplates that the compensation shall be paid before the property can be disturbed.' It is not satisfied with a mere deposit byway of security, not to be withdrawn until the final disposition of the case. It says nothing about a deposit by way of security. If the owner will not accept the money, it can be paid into court for him, not there to remain as a security for the final award, but for his immediate use. He has the right to withdraw and use the money the same as the company has the right to use the property, he being bound to refund if the final award is less, and the company being bound to pay the excess if the final award is more than that first allowed. The right to have the amount of the first award placed -at the disposal of the property owner before his property is disturbed is a constitutional right, of which he cannot be deprived by any act of the legislature. Indeed, the legislature has not attempted to deprive him of such right; for the statute does not say that the money paid to the clerk shall remain with the clerk until there is a final disposition of the case. It contemplates that the money be paid to the clerk for the landowner, and that the company may go on and use the property and the landowner use the money, and that each has the right still to prosecute exceptions to the report so far as concerns the final amount to be paid. As we have before said, this right to prosecute exceptions is a statutory, not a constitutional right.

If the condemning company is not satisfied to pay the money into court for the immediate use of the owner, and not simply by way of a mere deposit as a security for the amount that may be finally awarded, it must defer taking possession nntil the final adjudication. It in this respect stands in no better position than the landowner. As the landowner may withdraw and use the money paid to the clerk for him, it follows that the company should not thereafter be required to pay interest on the amount thus paid into court, but it should pay interest on the excess, if any, found by the jury. The judgment is reversed, and the cause remanded for further proceedings in conformity herewith.

All concur.