St. Louis & Kansas City Railway Co. v. Eby

ROBINSON, J.

This controversy arose out of a proceeding to condemn a right of way for plaintiff’s railroad through defendant’s farm situate in Johnson county, consisting of about three hundred and fifteen acres of land lying in a body.

The railroad was constructed through. defendant’s land in a curve line south of the center of the farm, and splitting one eighty diagonally, leaving it in irregular shape, and one hundred and twenty acres was left to the south side of the railroad, separated from the improvements and the rest of the farm. The railroad did not go through defendant’s farm on a natural grade, but cuts and fills were made. It extended something over one-half mile through defendant’s land, and for about half the distance plaintiff laid a double track, appropriating about six acres for its right of way.

The plaintiff presented a petition setting forth the necessary jurisdictional and other facts, and prayed for the appointment of commissioners to assess damages which defendant would sustain in consequence of the location, construction and operation of its railroad over defendant’s land. On the filing of the petition in the office of the clerk of the circuit court of Johnson county, in vacation, the clerk issued a summons to defendant to appear before the judge of the Johnson Circuit Court on the 8th day of August, 1895. The summons was duly served and the defendant appeared accordingly. Thereupon the judge of said court heard the petition, and *609 after finding the facts upon which to base his order appointed the commissioners as required by statute, who filed their report showing that they had performed the duty imposed upon them, and assessed defendant’s damages by reason of the appropriation of his land, and the operation and maintenance of the railroad thereon, at twenty dollars, which was deposited by the plaintiff with the clerk of the circuit court and after-wards taken by the defendant and the plaintiff took possession of the land. On August 23, defendant filed objections to the commissioners’ report. The exceptions, except the first and seventh, which were withdrawn, were in substance, that damages were not assessed for the whole of the tract of land through which the railroad ran, although the entire farm was damaged; because the damages were grossly inadequate; because the damages sustained were $3,000, instead of the amount allowed by the commissioners; because the commissioners neither allowed damages for the land actually appropriated, nor damages to other parts of the farm; because the commissioners erred in deducting from the damages sustained the general benefit to defendant’s farm by reason of the building and constructing of the railroad, which were given to other lands in the vicinity; and asked that the report of the commissioners be set aside ,and the court order a new appraisement of defendant’s damages to be made by a jury under the supervision of the court.'

At the October term, 1895, the court made an order sustaining defendant’s exception, setting aside the report of the commissioners and ordering that the damages be re-assessed by a jury. The plaintiff, however, objected to the order setting aside the report, because, as alleged, no sufficient cause had been shown, and also objected to the order submitting the trial to a jury, because there was no foundation up to that time for such submission because not in compliance with the statute. A jury was thereupon impaneled and an inquiry had accordingly, resulting in awarding defendant the sum of $800, upon *610 which, a judgment in the usual form was entered for that amount in favor of the defendant. During’- the trial before the jury the plaintiff offered to prove that defendant had stated that if the depot and station were located upon the land where it now is, or within a quarter of a mile east of that point, it would satisfy him in full for all damages he would sustain by reason of the appropriation of his land for the railroad purposes, and that he offered, if such location was made, to execute a deed conveying the right of way in consideration of one hundred dollars; and that in pursuance of that agreement the station was'located on the forty acres east of defendant’s land, and a contract was drawn up, but before the contract reached defendant for his signature he learned that the location of the depot and station had been determined upon as desired by him, and then' declined to sign the agreement or to execute the deed.

Before proceeding to a trial of the question of damages, plaintiff’s counsel moved the court to overrule defendant’s exceptions for the reason that defendant had accepted the money deposited by the plaintiff with the clerk in vacation, and consequently was not entitled to an order setting aside the report of the commissioners without refunding the money received from the clerk. The plaintiff’s objection being overruled, the defendant demanded the right to open and close the ease. Plaintiff’s objection thereto being overruled, the defendant was awarded the opening and closing of the case. After the trial and judgment the case is brought here on plaintiff’s appeal.

This case, with the exception perhaps of the evidence offered by plaintiff of previous negotiations between the parties, in regard to the location of the depot and station near to and adjoining defendant’s farm, and the diminution of defendant’s damages in consequence thereof, is in all essential respects like the cases of the same plaintiff against Donovan et al., 149 Mo. 93 , and Russell et al., 150 Mo. 453 , passed *611 upon by this Division, and therefore must be governed by the rule announced in those cases.

The court properly excluded the evidence offered by plaintiff of previous negotiations and offers between the plaintiff and defendant touching the right of way in question and defendant’s damages in reference thereto. In Chicago, S. F. & C. Ry. Co. v. McGrew, 101 Mo. 282 , this court was called upon to determine the same identical question, and in the course of the opinion delivered by the court in that case, it was held that offers to agree, which were required to be made before legal proceedings could be instituted, having failed, all previous negotiations or offers were at an end, and could only be viewed in the light of offers to compromise, and evidences of their character and extent was not admissible, and that plaintiff had no more right to tender or prove that it had tendered defendant certain privileges, than the defendant had to offer to prove that he had offered to donate -the right of way if a different location should be adopted.

Eor the reasons herein given, and upon the authority of the cases of plaintiff against Donovan et al., and Eussell et al., sufra, the judgment of the circuit court will be affirmed.

Brace, P. J., Marshall and Yalliant, JJ., concur.