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(Mo., 284 S. W. 471.)

for all time to come; that is a per- opinion as to the value of that proppetual work there that has to be erty (taken)? A. $41,950. maintained, and I would say $600 or $700 would be a reasonable damage to that part of the farm."

Appellants concede in their brief that Mr. Hawley "was a competent witness in this case, but the fact that he was one of the commissioners who had assessed the damages sustained by defendants should not have been permitted, either directly or indirectly, to go to the jury."

In St. Louis v. Abeln, 170 Mo. loc. cit. 326, 70 S. W. 710, we said: "It is also assigned for error that the court allowed the commissioners to be called and to testify as witnesses. We see no reason why the commissioners are not competent witnesses in such case. There is no statute disqualifying them, and no principle violated in allowing them to testify. . . . Since the able counsel for appellant suggest no reason and cite no authority in support of this assignment, we are satisfied that neither reason nor authority for it can be found." Appellants rely mainly upon School Dist. v. Phoenix Land & Improv. Co. 297 Mo. 332, 249 S. W. 51, and Kansas City Southern R. Co. v. Second Street Improv. Co. 256 Mo. 386, 166 S. W. 296, in support of their contention respecting this assignment of error. In the first mentioned case, counsel for condemnor stated to the jury, in his opening statement, that the witness McElroy had been appointed by the court as one of three commissioners, who were disinterested men, to view the property taken and make a fair report, and that their report was sworn to and filed in the case. Witness was permitted, over the objections of defendants, to state at length what he and the other commissioners did and learned while performing said service. He testified that the three commissioners agreed on the amount; that they Swore to their report and filed it. Thereupon, the following occurred:

"Q. I will ask you to give your

"Q. $41,950. I think you said you and your co-commissioners agreed?"

.

Upon the suggestion of the trial court the last question and answer were withdrawn, after the jury had heard the testimony. In that case, division 2 of this court, speaking through Railey, C., said: "We are of the opinion that Mr. McElroy was a competent witness in this case, but the fact that he was one of the commissioners who had assessed the damages sustained by defendant should not have been permitted, either directly or indirectly, to go to the jury. . As heretofore stated, when a jury trial was awarded defendant, the report of the commissioners, and everything they did, had become functus officio, and should have been kept from the jury trying this case. . Keeping in mind the opening statement of plaintiff's counsel heretofore quoted, a part of which was objected to at the time, we are decidedly of the opinion that the testimony of Mr. McElroy complained of was not only prejudicial to the rights of defendant, but admitted in disregard of the principles of law enunciated in the cases heretofore cited. character has improperly gone to Where damaging testimony of this the jury, the only way in which substantial justice can be administered is to grant a new trial."

In the latter cited case, one of the commissioners was called as an expert witness by the condemnor, and the report of the commissioners was repeatedly adverted and referred to for the purpose of refreshing his recollection as to the value of the land taken. In that case, Graves, J., speaking for this division of our court, said: "It is next insisted that there was error

in the admission of the testimony of the witness Truitt. This witness was one of the commissioners. He seemed to have had no independent recollection of the value fixed by the commissioners. Counsel for the

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clear that counsel for defendant was objecting to the use which was being made of this report, i. e., to refresh the recollection of an expert witness. It is clear that the report was so used. It is further clear that in doing so the substance of that report was before the jury. The report was not properly used to refresh the expert witness. An expert testifies to things within his own knowledge, or gives his expert opinion upon a hypothecated state of facts. There is no reason for refreshing the recollection of such a witness. Upon the whole the examination of this witness was improper, and constituted prejudicial error."

We believe the aforecited cases are readily distinguishable from the case at bar. A careful reading of the record in the instant case fails to disclose a reference to the commissioners' report or the slightest suggestion or intimation respecting the contents of that report or the amount assessed by the commissioners as appellants' damages by reason of the rights taken hereby. It is apparent that the jury were not influenced by witness Hawley's testimony, for they returned a verdict assessing appellants' damages at more than twice the amount the wit

-permitting jury to know official character of witness.

ness had testified appellants would sustain. If there

be error in the action of the trial court (and we think there was none), it was harmless, and hence not reversible error. Mo. Rev. Stat. 1919, § 1513; Green v. St. Louis, 106 Mo. 454, 17 S. W. 496.

III. One of respondent's witnesses, the supervising engineer for the city, was permitted to testify, over appellants' objections, that the specifications and contract for the construction of the sewer require the contractor to replace the land, through which the underground sewer main across appellants' farm

is to be laid, in the same condition in which he finds it, and that, to protect such right, the contractor is required to put up a bond with the city, out of which the city may restore the land within a year, if the contractor does not do so. The admission of that testimony is assigned as error on the ground that appellants are not bound by the contract requirement, and on the further ground that the respondent is not entitled to pay the damages assessed in anything but money. In ruling this assignment it must be borne in mind that the city is seeking to condemn the right to disturb the surface of the right of way only up to January 1, 1924, and thereafter the right to go upon the surface only so far as the maintenance and repair of the sewer necessitate.

In 20 C. J. 766, the text-writer announces this general rule: "Any fact which, by reason of the conditions upon which the property is taken, or the character of the improvement or the manner in which it is made, or the nature and situation of the land taken or of the residue, tends to ameliorate, counteract, diminish, mitigate, or reduce the damages otherwise accruing to the landowner, may properly be considered in favor of the appropriator in the assessment of damages, although the benefit is not one necessarily accruing from the construction of the improvement. Thus, if the use sought to be appropriated is a restricted or limited use and one which will still reserve to the landowner some right in the property affected, such fact should be considered in assessing damages."

St. Louis, K. & N. W. R. Co. v. Knapp-Stout & Co. Co. 160 Mo. 396, 61 S. W. 300, and St. Louis, K. & N. W. R. Co. v. Clark, 121 Mo. 169, 26 L.R.A. 751, 25 S. W. 192, 906, seem to be in consonance with the rule announced. We Evidence-duty see no reversible er- of contractor to replace soil. ror in the reception of this testimony.

IV. Error is assigned in permitting respondent's witnesses to detail

(Mo., 284 8. W. 471.)

the sanitary conditions existing at the slaughterhouses on Cape La Croix creek prior to the date of filing the commissioners' report on January 18, 1923. Of course, it is well settled in this state: "As a general rule the appropriation and taking is fixed as of the date the commissioners make their report of the damages, and the condemning party pays such sum into court for the benefit of the landowner." Kansas City Southern R. Co. v. Second Street Improv. Co. 256 Mo. loc. cit. 407, 166 S. W. 302, and cases there cited.

However, respondent showed by at least one witness, who visited the slaughterhouses the day before the jury trial in March,

-conditions along stream sought for sew

er outlet.

1923, that a similar unsanitary condition then existed at that location on Cape La Croix creek. Besides, proof of the existence of a fact or condition at a particular time within reasonable limits gives rise to the inference that it continues to exist, in the absence of proof to the contrary. 22 C. J. 86.

-existing con

sought for sewer outlet.

But appellants furthermore contend that the pollution of this stream by other and third persons does not justify the city in polluting the stream without paying compensation. However that may be, we think the evidence complained of was admissible for dition of stream the purpose of enabling the jury to determine what, if any, additional contamination will result by reason of the city's use of the stream as a sewer outlet, and thereby to determine the damages, if any, resulting from such additional contamination, for it seems clear to us that the city cannot be made to respond in damages (at least in this condemnation proceeding) for the contamination of the

stream by the owners of the offending slaughterhouses.

V. Appellants offered as a witness one Carter, who was asked what price he had agreed to pay for

-value of land

a tract of land adjoining that of appellants, evidently for the purpose of establishing the market value of appellants' land. The trial court rejected this offer of proof, and appellants assign error. Asked if he had recently acquired any real property adjoining the Hunze land, witness replied: "I have not closed the trade up, but we are still dickering." In view of the fact that witness had not contracted for the purchase of the adjoining land, we see no reversible error in the rejection of the proffered testimony. Mere negotiation for purchase of property, negotiations for which may result in a sale, does not establish an accurate basis or criterion for its market value. Besides, appellants showed, by other witnesses, the price that witness witness Carter Carter had agreed to pay for the adjoining land, and thereby in effect succeeded in getting substantially the material parts of the rejected testimony on of evidence before the jury. Ap-right to compellants are therefore in no position to complain of the error assigned. Baker v. McMurry Contracting Co. 282 Mo. 685, 223 S. W. 45.

never

adjoining land.

Appeal-rejec

plain.

VI. Appellants assign error in the giving on behalf of respondent of instructions numbered 2, 3, 4, 6, and 7. It therefore becomes necessary for us to state the substance of those instructions.

In respondent's instruction No. 2, the jury were charged that, "in fixing the just compensation to be allowed to the exceptors for the acquisition by said city of the right in the 10-foot strip of land described in the petition and referred to in the evidence in this case, you shall award to the exceptors the reasonable rental value of the land

acquired for the time which plaintiff city proposes to use it, namely, from

the date of the commissioners' report until January 1, 1924, and the damages which you may find from the evidence will result to exceptors' remaining land on account of

said use for such period and such further damage, if any, as you may believe and find from the evidence will result to the exceptors on account of the use by the plaintiff of said 10-foot strip for the construction, maintenance, and repair of said 21-inch sewer pipe."

By respondent's instruction No. 3, the jury were instructed that, in fixing the compensation to be allowed for the acquiring by the city of the right to use Cape La Croix creek as an outlet for the sewer system, "you shall be guided by the law concerning the rights of riparian owners in streams, and that law is that a riparian owner, that is an owner of land adjoining a stream, cannot insist that the water of that stream shall come to him in a natural pure state, but he must submit to the natural wash and drainage coming from cities and towns, and you are instructed that if you believe and find from the evidence in this case that the plaintiff in the construction of its sewerage system in sewer district No. 5, according to the plan for same in evidence in this case, will not cause the waters of Cape La Croix creek to be polluted beyond the extent of their pollution from the natural wash and drainage going into said Cape La Croix creek before the opening of said sewer system or rendered more unfit for use than it was prior to the construction of said sewerage system, and that said use of said stream will not be of any damage to exceptors' farm, then the exceptors are not entitled to damages on that account, but if you believe and find from the evidence that said sewer system will cause the waters of said Cape La Croix creek to become more polluted or to be rendered more unfit for use or cause increased damage to exceptors' farm than they are while receiving the natural wash and drainage into said creek prior to the installation of said sewer system, then you may award exceptors such damages as you may think they are entitled to by reason thereof; but you are further instructed to deduct

from the total damages you may find will result to exceptors' entire tract of land on account of the construction and maintenance of said sewer system, for sewer district No. 5 in said city, the benefits, if any, peculiar to the whole tract arising from the construction, operation, and maintenance of said sewer system."

By respondent's instruction No. 4, the jury were told: "That the burden of proof in this case is on the exceptors to prove, by a preponderance of the evidence, that the tract of land owned by the exceptors will be damaged in excess of the special benefits, if any, that may accrue to it by reason of the construction and maintenance of the sewerage system for sewer district No. 5 according to the plan for same introduced in evidence in this case."

By respondent's instruction No. 6, the jury were told: "That the exceptors cannot recover damages from the mere fact that Cape La Croix creek is to be used as a sewer outlet for sewer district No. 5 of the city of Cape Girardeau, and you cannot find for exceptors for damages on that account alone unless you find and believe from the evidence that the waters of said stream will be rendered more unfit for use than they are at the present time."

Respondent's instruction No. 7 told the jury: "That the city of Cape Girardeau has the same right to use Cape La Croix creek for its purposes, including the right to use it as a sewer outlet, as have the exceptors to use said stream and the waters thereof for their purposes, subject, however, to the restriction to so exercise the right as to not create a nuisance and to respond in damages in the event the use of same by the city so pollutes the waters of the stream as to deprive the exceptors of the uses of the water they would enjoy were it not for the use of said stream by said city as an outlet for sewer district No. 5."

Appellants contend that the above-quoted instructions, given by the trial court at request of re

(Mo., 284 S. W. 471.)

spondent and all of which bear upon the measure of damages, are erroneous because they limit appellants' recovery to actual physical damages and exclude other items of damages, and particularly exclude the depreciation in market value of appellants' farm by reason of the rights herein taken and condemned. Appellants say that the true measure of damages in this proceeding, as in all condemnation proceedings where a part only of an owner's property is taken, as laid down by this court in St. Louis, K & N. W. R. Co. v. Knapp-Stout & Co. Co. 160 Mo. 396, 61 S. W. 300, and other cited cases, is "the difference between what was the fair market value of the whole tract or property before, and its fair market value after, the appropriation, in view of the uses to which the land condemned should thereafter be applied."

The trial court, however, gave certain instructions on behalf and at the request of appellants. By one of those instructions the jury were charged that, under the Constitution of this state, private property cannot be taken or damaged for public use without just compensation being paid to the owner and that the city in this proceeding has taken and condemned the following property of appellants: (1) The right to use the strip of land in evidence until January 1, 1924, for the purpose of constructing and maintaining a 21-inch sewer pipe, manholes, and appurtenances across said strip of land; (2) a permanent easement or right in said land for said 21-inch sewer pipe, manholes, and appurtenances; (3) the permanent right to enter upon said land to maintain said 21-inch sewer pipe, manholes, and appurtenances, reserving to said landowners the right to use the surface of said land after January 1, 1924, so long as said use does not interfere with or prevent said city from maintaining and repairing said 21-inch sewer pipe, manholes, and appurtenances; and (4) the right to use the water

course of Cape La Croix creek for a public drain or sewer route, as mentioned and described in evidence. The instruction then proceeds to state the measure of damages for the described property as so taken and condemned, as follows: "In assessing the just compensation and damages, if any, to be paid to these exceptors, you should allow them the difference between the fair market value of exceptors' whole tract of property before and its fair market value after the appropriation by the city of Cape Girardeau of the property or rights, uses, and easements hereinbefore mentioned and considering the uses to which said condemned property is to be hereafter applied. In determining the amount of compensation or damages to which exceptors are entitled, the jury should ascertain: First, the fair market value of the property or the rights, uses, and easements actually condemned and taken; and, second, the diminution in value, if any, of the remainder of exceptors' whole farm as the results of the taking of the rights, easements, and uses before mentioned and the total amount found on account of these two items, less the amount of the special or peculiar benefits, if any, resulting to exceptors' land on account of said sewer plan, will be the amount to which exceptors are entitled, and it should be equal to the amount found by you as the decrease, if any, in the fair market value of exceptors' whole property on account of the taking of the rights, uses and easements hereinbefore mentioned."

By another instruction the term "market value" is specifically defined.

-considering

In determining whether the jury were misdirected upon the measure of damages, we think that all of the instructions, including those given on error in instrucbehalf of both respondent and appellants, must be read and considered together as one complete and entire charge to the jury, provided, of course, that they

tions.

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