Nevada & Minden Railroad v. De Lissa

Thomas, J. This action was commenced in Barton county, Missouri, by appellant to condemn the right of way over respondent’s farm, consisting of six hundred and forty acres of land, in the west part of Barton county, Missouri, near the town of Pedro, being section 35, township 33, range 33, three-fourths of a mile north of where appellant’s railroad crosses the Ft. Scott & Gulf railroad. The petition is in due form, and all the preliminary steps were taken to sustain such a proceeding. On the fourth day of March, 1886, three commissioners were appointed to assess respondent’s damage, to-wit: James Gregory, Thomas Seals and Frank Jones, who after viewing the land on the seventeenth day of March, 1886, made their report in due form and time, [129] assessing respondent’s damages at $4,500. Appellant deposited said sum of money with the clerk of the circuit court, and immediately entered upon the said land, constructed and commenced operating its railroad over it. To which report, in the time required by law, both appellant and respondent filed their exceptions ; appellant and respondent, each in their exceptions, charging the commissioners with partiality and prejudice, appellant claiming the damages allowed to be excessive, and respondent claiming that they were inadequate, and he should have been allowed $10,000 instead of $4,500. The appellant, in due form, took a change of venue on account of the. prejudice of the inhabitants of Barton county, Missouri, and the case was sent to the Dade county circuit coui't, where the exceptions to the report of the commissioners were sustained, and the report set aside, and the damages ordered assessed by a jury. Whereupon the appellant asked leave to take a nonsuit, which, after appellant having admitted that it had obtained possession of the land, sought to be condemned for right of way, and its said road over it, and was then using and occupying it for its railroad, by virtue of the condemnation proceedings, the court refused to allow appellant to do. The case was then submitted to a jury, which assessed the damages at $5,000. I. The action of the court in refusing to permit appellant to take a nonsuit is assigned for error. This point is ruled against appellant on the authority of Gray v. Railroad, 81 Mo. 126. That case involving this identical question was well considered, and the result-reached received the unanimous concurrence of all the judges and the commissioners, and we now give our full assent to the doctrine of that case as being sound in principle and supported by authority. Nor do we regard the case of Green v. Railroad, 82 Mo. 653, as in conflict with it, either in letter or spirit. Under the [130] circumstances of this case appellant could not take a non-suit without respondent’s consent, and this not having been given, the court did not err in"ref using to permit it. II. As to appellant’s objection to certain questions propounded to many of the witnesses, we will quote from the opinion of Judge Ray in the case of Railroad v. Calkins, 90 Mo. 538, as precisely in point, both as to the fact and the law of the case at bar : “A further exception to the ruling of the trial Court, urged for the reversal, is that witnesses were permitted to express their opinion as to the amount of damages caused by the appropriation of the land for the railroad, including the value of the portion taken and damage done to the rest of the tract. The witnesses so testifying were shown to be competent and acquainted with the premises, location and surroundings, and in the course of their evidence they state the facts as to how the railroad ran through the farm in question, how the same was divided, and the shape in which the parcels were left, the character and quality of the land, and whether improved or not. Upon the question of value of property, real or personal, and as to the amount of damages done to the property in controversy, parties shown by the evidence to be acquainted with the value or damage may, in connection with the facts, state their opinion as to the value or damages.” See also cases cited by Judge Ray, page 543. Upon the authority of this case we rule this point against appellant. No error appearing in the instructions the judgment is affirmed. All concur.