St. Louis Terminal Railway Co. v. Heiger

Brace, J. This is a condemnation proceeding by which plaintiff seeks to appropriate a strip of defendant’s ground in the city of St. Louis, fronting one hundred and ninety-four feet on Florissant avenue, two hundred and twenty-four feet on Bercher avenue and running through to Newstead avenue on which it fronts two hundred and sixty-three feet. The tract condemned had on it a two-story brick dwelling house occupied by tenants, a blacksmith and wagonmaker’s shop, as well as a large cow stable, horse stables, sheds, outhouses, wells and cisterns, used in connection with a dairy. The.damages of the defendant were assessed by the commissioners at $14,040. Exceptions to the report of the commissioners were taken by both parties, and upon a trial before a jury in the circuit court the defendant’s damages were assessed at $15,300, and from the judgment thereon the plaintiff appeals. The errors assigned are as follows: “1. The court erred in permitting respondent to show what appellant had been compelled to pay for [319] other property in the neighborhood, under condemnation proceedings, and in refusing appellant’s third instruction ‘that the jury can not take into consideration what may have been paid for other property in the neighborhood, by plaintiff, under condemnation proceedings, for its right of way.’ “2. The court erred in permitting respondent to show what appellant had paid for other property in the neighborhood for its right of way, and in refusing appellant’s fourth instruction that ‘the jury can not take into consideration what may have been paid for other property in the neighborhood by appellant for its right of way.’ “3. The court erred in refusing appellant’s fifth instruction that ‘the jury should exclude from consideration all evidence tending to show that the property in question was particularly favorable for dairy purposes because dead animals, carcasses or parts thereof, the offal or any other filth occasioned by its use for dairy purposes, could be thrown into the branch or creek running through the property and be carried away without expense to the person using the same for a dairy.’ “4. The court erred in refusing to permit appellant to show what was the value of the premises in question for dairy purposes, that being the use to which it was put at the time of the condemnation and to which it had been used for twenty years prior thereto, it having also been testified to by witnesses that the property in question was more valuable for dairy purposes than for any other.” I. A careful examination of the record fails to disclose that the court did in fact permit the respondent to show “what appellant had been compelled to pay for other property in the neighborhood under [320] condemnation proceedings” and the first assignment of error has nothing to rest upon. The court did permit the respondent to give in evidence the opinion of experts as to the value of the property sought to be condemned, based in part upon recent sales of other property in the neighborhood, among which was one place called the Eehert property, which was sold for the sum of $4,000 to one Herbkesman and by him to one Stephensmeyer, the title to which at the time of the trial was in Rainwater and McLure, officers of the appellant corporation. The evidence does not show what the latter paid for the property. Though the opinion was based upon the amount paid by Herbkesman, the evidence fails to show that the property was in fact bought by him for the railroad, or that the vendor knew for what purpose it was being bought. We fail to see in this action of the court anything inconsistent with the principles laid down in Springfield v. Schmook, 68 Mo. 394, and find it entirely in harmony with the views of this court as expressed in Railroad v. Clark, 121 Mo. loc. cit. 185. The facts of the case do not bring it within the rule laid down by the Supreme Court of Illinois in Peoria Gas Light Co. v. Railroad, 146 Ill. 372, or any of the other cases cited in support of this contention, so that rule need not be discussed. The second error is not well assigned. III. In the course of the cross-examination by counsel for appellant of one of respondent’s witnesses, the witness said that the property was particularly valuable for dairy purposes, principally on account of the creek being right there, which was a natural outlet for the offal from the dairy. After this evidence had been thus elicited, counsel for respondent said: “I object to the consideration of offal going into the stream; we [321] have a statute on that point.” To which the court replied: “He gives that as one of his reasons; if you can show to the contrary you can do so.” To which ruling of the court counsel made no objection and took no exception, but proceeded to an exhaustive examination of the witness in regard to the stream — its character, relation to the property, and the uses to which it could be put — all of which was the proper subject of argument upon the question of their effect upon the talue of the property. But of course the appellant had no right to have these physical facts excluded from the consideration of the jury, or have an argument made for it thereon, by an instruction from the court, such as was asked by its fifth instruction, and the court committed no error in refusing that instruction. IY. While there was evidence tending’ to show that the property was principally valuable for dairy purposes, it was also shown that it was subject to, and susceptible of other uses, and valuable for other pur•poses, and we do not think the court erred in refusing to limit its valuation to the value for dairy purposes only. The court did not refuse to allow appellant to show that it was valuable principally for that purpose by witnesses cognizant of its value for that purpose, but in making their estimate of the market value of the premises, required the general value of the property to be shown for that or any other purpose, and in this committed no error. Finding none of the errors well assigned, the judgment of the circuit court is affirmed. All concur.