Missouri Pacific Railway Co. v. Wernwag , 35 Mo. App. 449 ( 1889 )

Smith, P. J.

The plaintiff filed its petition in the office of the clerk of the circuit court of Lafayette county for the condemnation of a right of way for its road, the defendant being one of the parties thereto. It was alleged in the petition that defendant owned a warehouse and platform scales on the one hundred feet sought to be condemned; that “said track passes through a frame warehouse and through a set of stationary wagon scales.” Commissioners were appointed, who assessed the damages of Wernwag at three hundred and seventy-five dollars. On objections and exceptions, and after hearing the evidence, the court set aside the report, as to Wernwag, and at the succeeding term, the issue being submitted to a jury, there was a verdict for five hundred and seventy-five dollars, and final judgment for that sum; from which judgment, after the usual motions, the plaintiff appeals.

The evidence shows that in laying off the town of Berlin, a strip, for a public wharf and steamboat landing, was left, adjacent to the river, and on this strip, without objection, years before, Wernwag had built a warehouse, and up to the time of the location of plaintiff’s road was engaged in buying and shipping grain and produce.

The road-bed, as located, ran just through this house, office, and a part of the scales. As to the value of the property and the amount of damages, the evidence was conflicting. The estimates were from one hundred and seventy-five dollars to one thousand dollars. The plaintiff located its road, graded up to or near this warehouse, then had commissioners appointed, who assessed the damages ; and after this and after the payment of the award to the clerk, Wernwag, who was working for plaintiff, by order of the engineer of plaintiff, pulled the buildings down and off of the right of way, and sold some of the old materials, but the sheet-iron roofing and office and scales were still on the ground to which they had been re moved at the time of the trial.

For plaintiff the court gave two instructions, after slightly modifying the second, but the modifications, being really in favor of plaintiff, are not complained of.

The third asked, and refused, declared that if Wernwag, after the filing of the report of commissioners, “took and converted to his own use without the knowledge or consent of plaintiff any part of the materials belonging to said warehouse,” the value should be deducted.

For defendant, the court gave one instruction as to the measure of damages, namely, the value, at the time it was taken by plaintiff, as a warehouse, or for any other purpose to which it could be put.

I. The principal complaint which plaintiff makes here is that the circuit court committed error prejudicial to it in refusing its third instruction which declared that if the defendant after the filing of the report of the commissioners took and converted to his own use without the knowledge or consent of the plaintiff any part of the materials belonging to said warehouse the value thereof should be deducted. We do not think the principle of this instruction correct.

It antagonizes the doctrine of the supreme court of this state as announced in the case of the Mississippi River Bridge Co. v. Ring, 58 Mo. 491.

As we understand it the jury in making the second appraisement of the value of the property were confined in their inquiry to the value of the same at the time of the filing of the petition and the appraisement made by the commissioners in the first instance. They were not authorized to take into consideration any change in condition of the pro perty or any other matter relating thereto occurring subsequently to the condemnation. The materials of the building on the right of way under and by virtue of the condemnation proceedings became the property of the plaintiff. When the commissioners assessed the value of the property'and the plaintiff paid the amount thereof to the clerk the operative effect of this under the law was to divest the defendant of his title, and to invest the same in plaintiff.

At the time of the assessment by the jury the said building materials, if in existence and undisposed of by the plaintiff, were in legal contemplation its property. The fact that the defendant was dissatisfied with the first appraisement did not effect the title of the plaintiff which had already vested. It was only the value of the property at the time of the appropriation which under the law was still open for judicial investigation by a jury.

• The question before the jury being, what was the value of the property when it was appropriated or taken by the plaintiff.

The subsequent wrongful taking of the said material by defendant “cuts no figure” in the case. If after the appraisement the defendant without the leave,of the plaintiff took, carried away and converted to his own use, said building material, he became a trespasser. And if he be insolvent his case is not different from that of other insolvent wrong-doers.

No doubt the injunctive process of a court of equity might have been invoked to have prevented the removal of said material.

And it may be that upon the facts of the case a. court of equity might be successfully appealed to by an appropriate proceeding to interpose its flexible powers to grant relief by decreeing a satisfaction of the said judgmeut for damages in an amount equal to the value of the said building material removed by the defendant.

It seems a case of great hardship that the defendant should be permitted to retain the property and recover its value too.

But in this action we are powerless to adjust the matter upon any principle of equitable set-off.

II. The provisions of section894, Revised Statutes, refer alone to the enforcement of an award made by commissioners and not to that made by a jury. It has never been otherwise .construed so far as we are advised.

Upon a consideration of the whole case we have been unable to discover any error which would justify our interference with the action of the court below.

The other judges concurring,

the judgment of the circuit court is affirmed.