
    St. Louis & Kansas City Railway Company, Appellant, v. Eby.
    Division One,
    December 12, 1899.
    Condemnations: evidence op previous agreement as to damages. It is not proper to permit a railroad company, in a condemnation proceeding for tbe taking of land for the right of way, to show, for the purpose of lessening the landowner’s claim for damages, that when the road was in process of construction he had verbally agreed that, if the station and depot buildings were located on his land, which was afterwards done, he would release the company from any damages, and had agreed to execute a contract to that effect, but, on learnipg after the contract was made out and forwarded to him for-signature that the station’s location on his land had already been determined on, he refused to sign it. Such evidence must be viewed in the light of offers to compromise. (Following Railroad v. MeGrew, . 104 Mo. 282.)
    
      Appeal from Johnson Circuit Court. — Hon. W. W. Wood, Judge.
    Affirmed.
    G-eo. P. B. Jackson for appellant.
    (1) Tbe court erred in trying tbe case over plaintiffs objection. The record shows that the court had not then acquired jurisdiction to try the case. The summons issued by the clerk was a nullity. Williams v. Monroe, 125 Mo. 574. When this defect ivas pointed out the court should then have proceeded in accordance with the statute as construed by this court. (2) The court erred in setting aside the report of the commissioners. This action was taken without any hearing or proof and without reviewing of the same, and Avithout “good cause shown.” R. S. 1889, sec. 2738; Railroad v. Richardson, 45 Mo. 466; Bridge Co. v. Schaubacker, 49 Mo. 555; Railroad v. Clark, 119 Mo. 372; Bridge Co. v. Ring, 58 Mo. 491; Railroad v. Almeroth, 62 Mo. 343; Rothan v. Railroad, 113 Mo. 132; Railroad v. Eowler, 113 Mo. 458; Green v. Railroad, 82 Mo. 653. For tbe same reasons tbe court erred in refusing to require defendant to refund tbe money received by bim from tbe clerk and wbicb had been deposited by reason of tbe award of commissioners after tbe award was vacated. (3) Tbe court erred in excluding the evidence offered by plaintiff to prove tbe proposition and statement made by defendant before tbe railroad was built, in relation to the location of a station on defendant’s land, or on tbe adjoining forty. While that may not have amounted to a binding contract, it was at least proper to go to tbe jury as an estimate wbicb defendant himself placed upon bis damages.
    O. L. Houts for respondent.
    (1) Tbe court bad jurisdiction of the subject-matter and tbe parties and its proceedings were binding. Union Depot Co. v. Frederick, 117 Mo. 138. Plaintiff having obtained possession of defendant’s land, built its road over it, and occupied it, could not back out of court or recover tbe amount of tbe deposit it bad made, or take a non-suit. Railroad v. De-Lissa, 103 Mo. 125. (2) Tbe court did not err in setting aside tbe report of tbe commissioners and ordering a re-assessment of damages by a jury. Defendant within due time after tbe commissioners bad assessed tbe damages and filed their report asked to have the report set aside, and demanded a re-assessment by a jury. After tbe commissioners bad assessed tbe damages, and made a report, either party was entitled to a jury to re-assess tbe damages on demand; if made in due time, if made in any form, or in any manner, tbe court had no discretion in tbe matter, but was compelled to award a jury trial. Railroad v. McGrew, 113 Mo. 390; Railroad v. Story, 96 Mo. 611. (3) Defendant assumed tbe burden of showing that bis farm was by the construction and operation of tbe road, damaged, and tbe extent of tbe damage, and these were the only issues in the case undetermined. The opening and closing, therefore, was properly awarded to him. Railroad v. North, 31 Mo. App. 315. The courts all hold that this is a matter within the discretion of the trial judge. (1) Idle court properly excluded evidence offered by plaintiff of previous negotiations and offers between plaintiff and defendant in regard to right of way and defendant’s damages. Railroad v. McGrew, 101 Mo. 298.
   ROBINSON, J.

This controversy arose out of a proceeding to condemn a right of way for plaintiff’s railroad through defendant’s farm situate in Johnson county, consisting of about three hundred and fifteen acres of land lying in a body.

The railroad was constructed through. defendant’s land in a curve line south of the center of the farm, and splitting one eighty diagonally, leaving it in irregular shape, and one hundred and twenty acres was left to the south side of the railroad, separated from the improvements and the rest of the farm. The railroad did not go through defendant’s farm on a natural grade, but cuts and fills were made. It extended something over one-half mile through defendant’s land, and for about half the distance plaintiff laid a double track, appropriating about six acres for its right of way.

The plaintiff presented a petition setting forth the necessary jurisdictional and other facts, and prayed for the appointment of commissioners to assess damages which defendant would sustain in consequence of the location, construction and operation of its railroad over defendant’s land. On the filing of the petition in the office of the clerk of the circuit court of Johnson county, in vacation, the clerk issued a summons to defendant to appear before the judge of the Johnson Circuit Court on the 8th day of August, 1895. The summons was duly served and the defendant appeared accordingly. Thereupon the judge of said court heard the petition, and after finding the facts upon which to base his order appointed the commissioners as required by statute, who filed their report showing that they had performed the duty imposed upon them, and assessed defendant’s damages by reason of the appropriation of his land, and the operation and maintenance of the railroad thereon, at twenty dollars, which was deposited by the plaintiff with the clerk of the circuit court and after-wards taken by the defendant and the plaintiff took possession of the land. On August 23, defendant filed objections to the commissioners’ report. The exceptions, except the first and seventh, which were withdrawn, were in substance, that damages were not assessed for the whole of the tract of land through which the railroad ran, although the entire farm was damaged; because the damages were grossly inadequate; because the damages sustained were $3,000, instead of the amount allowed by the commissioners; because the commissioners neither allowed damages for the land actually appropriated, nor damages to other parts of the farm; because the commissioners erred in deducting from the damages sustained the general benefit to defendant’s farm by reason of the building and constructing of the railroad, which were given to other lands in the vicinity; and asked that the report of the commissioners be set aside ,and the court order a new appraisement of defendant’s damages to be made by a jury under the supervision of the court.'

At the October term, 1895, the court made an order sustaining defendant’s exception, setting aside the report of the commissioners and ordering that the damages be re-assessed by a jury. The plaintiff, however, objected to the order setting aside the report, because, as alleged, no sufficient cause had been shown, and also objected to the order submitting the trial to a jury, because there was no foundation up to that time for such submission because not in compliance with the statute. A jury was thereupon impaneled and an inquiry had accordingly, resulting in awarding defendant the sum of $800, upon which, a judgment in the usual form was entered for that amount in favor of the defendant. During’- the trial before the jury the plaintiff offered to prove that defendant had stated that if the depot and station were located upon the land where it now is, or within a quarter of a mile east of that point, it would satisfy him in full for all damages he would sustain by reason of the appropriation of his land for the railroad purposes, and that he offered, if such location was made, to execute a deed conveying the right of way in consideration of one hundred dollars; and that in pursuance of that agreement the station was'located on the forty acres east of defendant’s land, and a contract was drawn up, but before the contract reached defendant for his signature he learned that the location of the depot and station had been determined upon as desired by him, and then' declined to sign the agreement or to execute the deed.

Before proceeding to a trial of the question of damages, plaintiff’s counsel moved the court to overrule defendant’s exceptions for the reason that defendant had accepted the money deposited by the plaintiff with the clerk in vacation, and consequently was not entitled to an order setting aside the report of the commissioners without refunding the money received from the clerk. The plaintiff’s objection being overruled, the defendant demanded the right to open and close the ease. Plaintiff’s objection thereto being overruled, the defendant was awarded the opening and closing of the case. After the trial and judgment the case is brought here on plaintiff’s appeal.

This case, with the exception perhaps of the evidence offered by plaintiff of previous negotiations between the parties, in regard to the location of the depot and station near to and adjoining defendant’s farm, and the diminution of defendant’s damages in consequence thereof, is in all essential respects like the cases of the same plaintiff against Donovan et al., 149 Mo. 93, and Russell et al., 150 Mo. 453, passed upon by this Division, and therefore must be governed by the rule announced in those cases.

The court properly excluded the evidence offered by plaintiff of previous negotiations and offers between the plaintiff and defendant touching the right of way in question and defendant’s damages in reference thereto. In Chicago, S. F. & C. Ry. Co. v. McGrew, 101 Mo. 282, this court was called upon to determine the same identical question, and in the course of the opinion delivered by the court in that case, it was held that offers to agree, which were required to be made before legal proceedings could be instituted, having failed, all previous negotiations or offers were at an end, and could only be viewed in the light of offers to compromise, and evidences of their character and extent was not admissible, and that plaintiff had no more right to tender or prove that it had tendered defendant certain privileges, than the defendant had to offer to prove that he had offered to donate -the right of way if a different location should be adopted.

Eor the reasons herein given, and upon the authority of the cases of plaintiff against Donovan et al., and Eussell et al., sufra, the judgment of the circuit court will be affirmed.

Brace, P. J., Marshall and Yalliant, JJ., concur.  