Sedalia, Warsaw & Southern Railway Co. v. Abell , 1885 Mo. App. LEXIS 386 ( 1885 )

Opinion by

Ellison, J.

Defendant complains of the instruction directing the jury not to estimate inconveniences common to other* lands in the same neighborhood. This objection is not tenable under the City of Springfield v. Schmook, 68 Mo. 394-6 ; Cooley’s Constitutional Limitations 566.

A like instruction is found in the case of the Wyandotte, Kansas City & Northwestern Railway Company v. Waldo (70 Mo. 629), and though not discussed in the opinion, it is set out in full and appears not to be criticised.

Defendant likewise complains of that part of the first instruction for plaintiff in which the jury are told not to “take into consideration any prospective use of said land by laying out the same into town lots and blocks, but will consider the market value of said land at the time, as shown by the evidence,” as being contrary to law, and contradictory of and inconsistent with the other instructions in the cause.

The instructions taken together present the case properly to the jury. By that part of the first instruction for plaintiff quoted above, it is not meant to exclude from their consideration the fact that the property lay adjoining the city of Sedalia, and was so sknated that it would make desirable property for lots and blocks ; but only that they should not consider any use of it in the future, or as to what might or might not be done with it in the future. The idea being to exclude from their consideration any matter of conjecture as to what might be, done with the land in the way of laying it out into town lots and blocks, a thing which might not occur. If he should get damages from a consideration of the use he might in the future make of it, in laying it off into lots, it may be he never would have done the thing, or put the property to the use for which he has recovered damages. That it was not meant to exclude from the jury a consideration of the uses for which it was available or what it was worth at the time of condemnation, considering the uses for which it might be put, is clear; for we find the jury are told in the second instruction for defendant, to consider the market value of the land at the time for any purpose for which it might be sold. And so the court, in the instruction given on its own motion, says the jury will allow damages to the land “ with reference to what it was then worth for sale, in view of the uses to which it might be put, and not based upon matters purely speculative or fanciful, which might or might not happen.” The instructions, taken together, simply mean that the jury should not allow defendant for a “prospective use” he may never make; but may allow him what the land was then worth, considering its adaptability to be used for any purpose, which may have appeared in evidence. Defendant also objects to that portion of plaintiff’s instruction not permitting the jury to consider the cost of erecting fences, etc. It being the law in this state that railroad corporations shall fence their tracks, and penalties in shape of double damage to stock being prescribed in case they do not; we think the instruction was proper. Jones v. Ry. Co., 68 Ill. 380; Winona Ry. Co. v. Walden, 11 Minn. 515 ; Winona Ry. Co. v. Denman et al., 10 Minn. 267-284.

It follows the judgment should be affirmed.

Hall, J. concurs. Philips, P. J., not sitting.