author: FARIS, J.

text:
    CITY OF ST. LOUIS v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY et al.; NATIONAL LEAD COMPANY, Appellant.
    Division Two,
    July 27, 1917.
    1. APPELLATE PRACTICE: Weight of Evidence: Value of Property Taken. In a condemnation proceeding, where substantial evidence of the value of the property taken was offered by both sides, the appellate court is powerless to weigh the evidence and say that the amount of damage found by the trial court sitting as a jury, who made a special finding of facts, was inadequate.
    2. CONDEMNATION: Measure of Damage: Compensation. The Constitution and statutes contemplate that the owner of private property taken for public use must be fully compensated therefor. They do not contemplate speculation,- but they do require that he be made whole.
    3. -: -: Accuracy of Estimate. Any estimate of the damage done to a whole factory plant by taking a parcel thereof is necessarily a guess. An absolute accurate valuation cannot be even approximated.

      4. -: -: Replacing, Part Taken by Purchase of Other Land. Damage for land taken can be paid only in money; nor can the owner be compelled to exchange the part to be taken for other adjoining parcels which if utilized at purchasable prices would curtail or eliminate the damage. But where only a part of a factory plant is taken and it is claimed the taking of that part destroys the whole plant for its then uses and that the measure of damages is the value of the entire plant, it is competent for the condemnor to show, in diminution of the damage, that there is adjoining property, purchasable at a fair price, which, if utilized in connection with so much of the plant as is not taken, will result in as adequate and valuable a plant as the existing plant.
    5. -: -: The Words “Or Damaged.” The words “or damaged” placed in the Constitution of 1875 after the word “taken” broadened the field of consequential damages where there is no physical taking of the owner’s property; but they do not have the effect of allowing to an owner whose property is actually taken any greater compensation than he could recover without those words, for both before they were placed in the Constitution and since the owner is entitled to be compensated for the value of the property taken and the amount of the damage to the property not taken. Consequently the rule announced in Hannibal Bridge Co. v. Schaubacher, 57 Mo. l. c. 588, decided prior to the adoption of the Constitution of 1875, is applicable.
    6. -: -: Taking Part of Factory: Depreciation in Value of Whole. Where the taking of a part of a tract devoted to a special use results in a depreciation of the plant for that use, the measure of depreciation is the sum required to be expended in order to rehabilitate the property for such special use, if such rehabilitation is practicable; and in measuring the amount of depreciation to which the part damaged but not physically taken has been subjected, if no available property is owned by him whose part is taken, the price at which other adjacent land, equally as valuable intrinsically, as convenient, as economical in use and as accessible, and which can be bought and used in connection with the part not taken, may be shown.
    Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.
    Appirmed.

      Boyle & Priest and T. E. Francis for appellant.
    (1) Where property is taken for public use its value should be paid; when not taken, hut only injured, its depreciation in value only should be allowed. Railroad v. McGrew, 104 Mo. 300; Railroad v. George, 145 Mo. 46; Doyle v. Railroad, 113 Mo. 288. (2) The value of buildings or other improvements located on land taken for public use should be included in the award of damages. City v. Morse, 105 Mo. 518. (3) Where two tracts of land, divided by a public street, are used for a single purpose, and one or part of one of such tracts is condemned and taken for public use, and the other tract is damaged or its. market value is depreciated by such taking, damages should be awarded the owner therefor. 10 Am. & Eng. Ency. Law, 1166; Bridge Co. v. Schaubacher, 57 Mo. 582; Railroad v. McGrew, 104 Mo. 282-; Elevator Co. v. Railroad, 135 Mo. 353; Railroad v. Nercross, 137 Mo. 415; City v. Brown, 155 Mo. 545;, Railroad v. Brick Co., 198 Mo. 698; Drainage District v. Dawson, 243 111. 175; Railroad v. Drummond, 205 Mo. 167; Lough v. Railroad, 116 Iowa, 31; Shirley v. Railroad, 121 Ky. 87. (4) In such a case, if the part taken is of greater value in connection with the whole than as a separate parcel, the measure of damages for the part taken is'the fair cash value of the part taken considered as a part of the whole. Railroad v. Humiston, 208 111. 100. (5) Where property taken for public use has been improved for carrying on a special business, and such business enhances the value of the site, this should be considered in awarding damages to the owner. 10 Am. & Eng. Ency. Law, p. 1161; Railroad v. Jacobs, 110 111. 414; Belting Co. v. Boston, 183 Mass. 254; Railroad v. Chicago, 172 111. 198; Railroad v. Chicago, 100 111. 21; King v. Railroad, 20 N. W. (Minn.) 135; Telegraph Co. v. Railroad, 202 Mo. 688; Railroad v. Brick Co., 198 Mo. 711. (6) While the owner of land taken for public use is required to minimize the damages by using his property in the most advantageous way, he is not required to invest large sums in the acquisition of other property to take the place of that condemned, in order to minimize the damages. Railroad v. Brick Co., 198 Mo. 714; Bridge Co. v. Schaubacher, 57 Mo. 582; Railroad v. McGrew, 104 Mo. 299.

      Chas. H. Danes and H. A. Hamilton for respondent.
    (1) The finding of the eonrt stands as a special verdict and will not he disturbed where there is substantial evidence to support the same. Leavitt v; Taylor, 163 Mo. 170; Walther v. Null, 233 Mo. 110. (2) On a mere question of value depending on conflicting evidence, this court will not interfere with the findings of the commissioners and the circuit court. ' St. Louis v. Brown, 155 Mo. 567; St. Louis v. Abeln, 170 Mo. 324. (3) Where two tracts of land, divided by a public street, are used for a single purpose, and a part of one of the tracts is taken for public purposes, the owner is entitled to damages for the depreciation in the value of the other tract, but he must minimize the damages by adjusting himself to the changed condition. The possibility of obtaining other land in the neighborhood for the same purpose must be considered in estimating appellant’s damage. Bridge Co. v. Schauhacher, 57 Mo. 582; Railroad v. McGrew, 104 Mo. 282; Elevator Co. v. Railroad, 135 Mo. 353'; St. Louis v. Brown, 155 Mo. 545; Railroad v. Brick Co., 198 Mo. 698; Railway Co. v. Switzer, 117 111. 399; Railway Co. v. Brugger, 24 Tex. Civ. App. 367; Sutherland on Damages (3 Ed.), sec. 1067, p. 3122; Sedgwick on Damages (8 Ed.), sec. 1172, p. 437.
   FARIS, J.

This action was commenced by the city of St. Louis for the purpose.of condemning the property of appellant, the National Lead Company, and others, as a right-of-way for the western approach to a bridge across the Mississippi River, called locally the Municipal or Free Bridge. The commissioners appointed by the court awarded to appellant for the land taken and for consequential damages the sum of $67,100. Exceptions were promptly filed by appellant and upon a trial by the court sitting as a jury, the court found for appellant exactly the amount of damages which had been given to it by the commissioners. Thereupon appellant took and perfected this appeal.

The appellant is engaged in the city of St. Louis in the manufacture of white lead, and for the purpose of carrying on this business it has constructed an extensive plant at First and Lombard Streets. The factory of appellant is located upon two separate parcels of land, called in the record the “north tract” and the “south tract,” which are separated from each other by said Lombard Street. Appellant had improved both parcels of land for the purpose of carrying on its business of manufacturing white lead, by erecting thereon factory buildings, warehouses and other structures, and by installing in such buildings the necessary accessories, machinery and appliances for its trade.

The evidence discloses that in the manufacture of white lead it is necessary to devote a large amount of space to a process called in the nomenclature of the trade, “corroding” the lead. That part of appellant’s plant situated south of Lombard Street (and called hereinafter for convenience the “south corroding yard”) was used by appellant in the corroding process and upon it, as the proof shows, some 48 per cent of the lead processed in the factory was corroded. There was also a yard north of Lombard Street, and hereinafter referred to as the “north corroding yard,” which was likewise devoted to similar purposes, and on which the remainder of the lead made by appellant was corroded. The south corroding yard, of which the city appropriated 17,800 square feet, contained in all 22,872 square feet; thus leaving, after the condemnation, only a wedge-shaped parcel containing 5072 square feet. The taking of the portion mentioned from the south corroding yard rendered the latter wholly useless for lead corroding purposes, and it is therefore strenuously contended that since, by the taking of the south yard 48 per cent of appellant’s corroding area was destroyed, this fact so depreciated the value of appellant’s factory as a lead factory as practically to destroy it. This, for the reason that upon the remaining corroding area it is impossible to operate the plant to its full capacity, and since it cannot be operated to its full capacity, the overhead expense renders it financially impossible to operate it at all. Upon this view appellant made below, and now makes here, two claims for damages: (a) -That it is entitled to the actual damages .sustained by reason of the physical taking of its south corroding yard, that is, of the tract located south of Lombard Street, and (b) that it is entitled to consequential damages by reason of its entire plant being depreciated in value as a result of the city’s taking part of the south corroding yard, without which the plant cannot be operated successfully, or profitably.

Many witnesses were called both by the city, and by appellant. The testimony of these witnesses, as to the value of the south corroding yard which was actually and physically taken, varied greatly; the values fixed by some of the witnesses thereon being two or three times greater than the value fixed by other witnesses in the case. Likewise the depreciation which appellant urges will accrue to its plant by the physical taking of 48 per cent of its corroding yard area was fixed at amounts which varied greatly. Some of the witnesses fixed this latter depreciation alone at two hundred and fifty thousand dollars; others said no depreciation would result, and others testified that depreciation in varying amounts would result, thus fixing the amount thereof from nothing to a quarter of a million dollars.

Against the second contention of appellant set out above, the city, while not seriously disputing that appellant’s plant could not be operated profitably or successfully without the south corroding yard, urges nevertheless that the value of the plant was not depreciated because other parcels of land could have been procured by appellant to take the place of the south corroding yard condemned by the city, upon which the necessary corroding process could be carried on by appellant as conveniently and economically as theretofore on the yard condemned.

At the request of appellant the trial court made, pursuant to the statute in such behalf, separate findings of fact and conclusions of law. Among these findings of fact the court specifically considered the point in this case which is most strenuously urged upon our attention by appellant. Its findings upon this point and its conclusions of fact upon the controlling questions in the case are thus set out:

“That the city of St. Louis, plaintiff herein, has by an ordinance duly passed, authorized the appropriation of a strip of land 100 feet wide, for a right-of-way for its Municipal Bridge approach over that portion of said tract located south of Lombard Street and has under the authority of said ordinance condemned and appropriated for said bridge approach' 17,800 square- feet off of the northern portion of the tract lying south of Lombard Street, leaving a triangular strip containing 5072 square feet south of the-part appropriated.

“That the taking of the 17,800 square feet south of Lombard Street depreciates the market value of the 5072 square feet south of the part taken, because it is left in a wedge-shape and separated from the remainder of defendant’s property north of Lombard Street by the 100-feet-wide right-of-way for the bridge approach, appropriated under this proceeding, and by Lombard Street, a public highway.

“That the taking of the 17,800 feet south of Lombard Street does not depreciate the market value of the 60,000 feet north of Lombard Street, because it is shown from the evidence that for all marketable purposes this part is of sufficient size and is worth as much on the market without the part south of Lombard Street as it was worth when the same owner owned both parcels. The court further finds that immediately west of and contiguous to the part north of Lombard Street there is and was for sale when the commissioners’ report was filed in this case, and when the money was paid into court for the use of exceptor herein, 21,000 square feet of land which could he acquired for about $50,000, and which was just as available for use in connection with the part remaining as the part appropriated.

“That if the defendant wished to continue to use the part remaining north of Lombard Street, for a lead manufacturing plant, it could by a re-arrangement of it in connection with the 21,000 square feet, use it to just as good advantage and as economically as it could be used before the appropriation of the part south of Lombard Street, and that it would be just as valuable in its rearranged and readjusted condition as it was before the appropriation by the city of the part south of Lombard Street. The court therefore finds that the just compensation to which exceptor is entitled is the market value of the 17,800 square feet taken, the depreciation in the market value of the 5072 south of the part taken, the cost of rearrangement to suit the new conditions, and the depreciation in value of the 60,000 feet north of Lombard Street in its rearranged condition; all of which the court finds to be $67,100.”

To these findings of fact the trial court appended certain conclusions of law, only a part of which we need here consider. These conclusions of law will be found set out by us in pertinent fullness in our discussion of the case, and we need not here occupy space with them.

We havé set forth above the two contentions made by appellant, as also the counter-contention made by the city touching the measure of damages for the alleged depreciation to appellant’s plant. As to the law by which the court below was governed in fixing the value of the south corroding yard, most of which was actually taken, there is no dispute between the city and appellant, but touching the facts found by the court thereon, that is', the value fixed by the court to the parcel taken, there is dispute. These questions therefore, one of fact and one of law, are the only two which we will find it necessary to refer to in our opinion.

I. We are urged to revise the finding of the learned court nisi upon the question of the award of damages for the value of the parcel actually taken. The ease was tried before the court sitting as a jury; there was substantial evidence of value offered upon both sides; the point of value being hotly contested. The learned trial court made a special finding of facts, by which he fixed the value of the parcel of land at $67,100. There was substantial evidence to support this finding and in such a situation we are as an appellate court powerless to weigh the evidence in a law case such as this is. [Woods v. Johnson, 264 Mo. l. c. 293; Hatton v. St. Louis, 264 Mo. 634; Walther v. Null, 233 Mo. 104; Leavitt v. Taylor, 163 Mo. 158.]

II. As nearly as we are able to gather from the briefs furnished us, the appellant complains of that part of the conclusions of law of the court below which reads thus:

“The preponderance of the evidence in the case, I think, shows that if this ‘Wulfing-Fries7Bird’ property had been acquired by the exceptor, it could have,been used in connection with their plant which was left, as economically as the old yards could have been used. And the preponderance of the evidence shows that the new yards could have been built on this property for sixteen thousand dollars, and then the exceptor would have had a much better plant, because it would have been new and up-to-date, whereas the corroding sheds or pens on the south lot were old and had depreciated fifty per cent; in other words, the exceptor would have been made whole. But the exceptor contends vehemently that evidence of property to be acquired cannot be considered, because, First: The law does not contemplate an exchange of property; second, that the exceptor is only required in order to minimize the damages to use that property which he owns at the time and is not required to purchase other property.
“It is true that the city could not enforce an exchange of lands upon the exceptor. It is also true that the city cannot require the exceptor to purchase other property to take the place of that which has been condemned, nor could the city pay exceptor anything but cash. But that is not the object of the testimony, as is stated in the case of Railroad v. Switzer, 117 Ill. 399, above quoted; the Supreme Court says, page 402: ‘It obviously should have been permitted the petitioner to show there would be other sources of water supply — not, as is supposed by appellee's counsel, for the purpose of showing there would be no damages, but for the purpose of affecting the amount of damage, the amount of the estimates of damages by appellee’s witnesses having been based on the supposition that there would be no other means of supplying the mill with water.’
“So in the case of G. C. & S. F. Ry. Co. v. Brugger, 24 Tex. App. 367, quoted above, wherein the court said, page 369: ‘It is clear to us that the proximity and the price of adjacent or contiguous timber land of a similar character was a fact proper to be considered by the jury in determining the extent to which appellee’s lands would be depreciated by the loss of this particular tract. ’
“On page 370 the court says: ‘It is plain that if appellee’s environment as to timber lands was such that he would be able to supply the loss of his timber, or lessen the loss and inconvenience occasioned by parting with what he had, it was proper to show the fact, and the cost to which he would be put in so doing, not as a distinct item of damage, but to be considered in determining to what extent the value of his land would be affected by the condemnation.’
“To the same effect see Sedgwick on Damages, (3 Ed.) sec. 1172, page 437, which says: ‘When the land has a value for a particular purpose, the possibility of obtaining other land in the neighborhood for the same purpose must enter into and affect the market value, and hence evidence bearing on this could hardly be excluded.’
“It was also claimed by the exceptor that the new corroding sheds could not be built on the Wulfing-FriesBird lot, because of the fire ordinance which was introduced in evidence, - but the evidence showed that cément construction could be used to comply with this fire ordinance and within the $16,000 estimated as the costs of the new corroding sheds.
“This whole subject was before the commissioners, and the evidence in regard to the Wulfing-Fries-Bird lot was before them, and they must be presumed to have considered it as an element (in diminution?) of damage, and I think under the authorities they had a right to do so.”

Imprimis, we are forced to bottom any consideration of a case growing out of the exercise of the right of eminent domain upon the premise that such cases are necessarily sui generis. This is so because both the Constitution and our statutes contemplate that the owner of private property taken for public use must be fully compensated therefor. It does not contemplate speculation, but only compensation; yet the owner must be made whole. And while it is conceded in the instant case by plaintiff city that the situation presented is one wherein the appellant’s entire plant must be considered as if it were a single parcel, whereof a part having been condemned, the whole is thereby depreciated and damaged, it is yet manifest that any estimate of the damage done by taking this parcel from the whole is necessarily a guess. Indeed the testimony of the witnesses discloses this in no uncertain way, for their estimates of the damage done in the behalf mentioned supra, varied from nothing to a quarter of a million dollars; that is to say, some of the witnesses said there would be no depreciation whatever in the value of the whole property by reason of taking the parcel south of Lombard Street, while others placed such resulting depreciation alone at $250,000.

Nothing is clearer than that courts cannot even approximate the dealing out of even-handed justice upon such testimony as this. We are not saying that it was false, or dishonest testimony; it was merely expert testimony. In the face of this situation, we cannot see in what other way the learned court nisi could have reached any sensible conclusion except by reference. to something concrete as a basis. What was done thereupon was substantially this: (a) The value of the ground actually taken was shown by the witnesses (and ultimately as we have seen above found by the court); (b) then there was shown the value of the improvements thereon, and this value was added to the hare ground value so found as above; (c) it was then considered by the court how much the taking of the south corroding yard had depreciated the value of the factory as a going concern, and (d) the proof showing that for $51,000 an equally commodious, convenient, economical and accessible parcel for a new corroding yard could be gotten and was for sale on the market, the trial court considered this fact as the measure of damages from depreciation of the whole plant.'

In the locus a non lucendo character of the expert testimony presented upon the question of depreciation, what other course was open to the trial court? There is no doubt but that appellant was entitled to compensation for damages done to the whole of its factory as a' lead factory. If this lead factory was worth less after the parcel constituting one of its theretofore corroding yards was condemned and taken, appellant is entitled to receive such full depreciation in cash. The whole difficulty is in ascertaining the amount of such depreciation. The case stood as if appellant had complained (as some of its witnesses did for it) that inasmuch as 48 per cent of its corroding yard area was taken, its factory for that became inoperable and worthless, and thereupon plaintiff had replied: Your complaint of 100 per cent depreciation is wholly untenable because you can now buy a parcel of land for $51,000 which will in every respect replace as a corroding yard that which we have taken. Were then the conclusions of law of the court warranted? We think they were as constituting a rational criterion by which to measure the alleged depreciation of land devoted to a special purpose.

It is conceded of course that damages for land taken through the exercise of the power of eminent domain may not he paid in anything -hut money; that neither other parcels of land nor the soil thereof are current media of payment therefor, and that the owner of land may not be compelled to swap lands or to move into another town, or city, or state where the land is cheap and have such cheapness compared as a criterion of value against the lands taken. But when land is devoted to a special use and it is urged that such use has been wholly or partially destroyed by the taking of a parcel of such land, it will be appreciated that some concrete 'criterion by which to measure the quantum of damage sustained is absolutely necessary; otherwise the amount of the depreciation would be a mere matter of bald guessing.

The cases and authorities cited and commented on by the learned trial court bear out this view, we think. The case of Hannibal Bridge Co. v. Schaubacher, 57 Mo. l. c. 588, is in principle, likewise an authority for this view. For while in that case this court seems to have held in min,d the duty of minimization of damages accruing in addition to the point here vexing us, the measure of damages there applied was in the last analysis the identical one here urged on us by the plaintiff. In the above case Schaubacher had a brewery-built on two lots which were (as here by a public street) separated from each other by a public alley. On the lot condemned were situate his pump, malt mill and power plant, with piping therefrom crossing the alley to the main plant, and (as here) absent and lacking all of which the brewery could not be operated successfully. There (as here) therefore it was urgently contended that the taking of the lot on which the above-named necessary accessories were located absolutely destroyed the brewery, and the latter was damaged to its full value. But this court said:

“After the appropriation of the land on the east side of the alley, on which the malt house, horse power, pump and pipe were situated, the brewery, which the evidence shows was very valuable, was rendered worthless. The amount of damages then would have been nearly equivalent to the whole value of the brewery. But if these fixtures and appliances could have been transferred to the western side of the alley and placed in such a situation that the brewery could have been just as effectively operated as it was before, then the actual loss to defendants would have been the trouble and expense of malting the removal. This then, we are inclined to think, would be the proper and appropriate measure of damages, viz: the cost and expense of removing the malt house, horse power, pump and pipe to the west side of the alley, so that they could be used as effectively and advantageously for running the brewery as it was run "before, to which should be added compensation for the use of the brewery for what time it would have been necessarily idle, whilst the change and transfer were being made.”

It was conceded by learned counsel for appellant in his argument nisi that the Schaubacher case is in point, and against him. But he argued substantially that since the Schaubacher case was decided our constitutional provision upon the point has been changed by adding to the word “taken” the words “or damaged.” The fact stated is correct, but the addition of the words “or damaged” did not, by the great weight of authority every where, have the effect of changing the meaning of the constitutional provision in the remotest way, so far as concerns the specific and instant question of consequential damages arising from an actual taking by the exercise of eminent domain.

If private property be damaged by a public use in connection with an actual taking by the exercise of eminent domain, it is as effectually “taken” (4 Sutherland on Damages, 3948) as if it were blown into thin air and scattered by the four winds. That the change in the wording of our Constitution has broadened the field of consequential damages arising in cases wholly disassociated with an actual physical taking by the exercise of the right of eminent domain, there is no question. But the Schaubacher case itself recognizes the rule that upon an actual taking of private property for public use by the exercise of eminent domain the owner is entitled to full compensation for all damages incident to the taking of his property. For upon this point it was said in that case, at page 585:

“The statute requires-the commissioners ‘to assess the damages which the owner of the land may sustain by reason of such appropriation.’ This by no means confines the assessment to the land actually taken. That may constitute the smallest amount of the injury done. There may be consequential damages which result by reason of the appropriation fairly comprehended within the scope of the law, and this case furnishes a strong illustration. Such is the construction placed upon similar statutes in other states.”

Therefore we-think it plain that the addition of the words “or damaged” to our constitutional provision has in no wise changed the rule applicable in a case like this wherein there has been an actual taking of one parcel whereby another parcel or the whole property has been affected by a resulting depreciation. Likewise, in cases in principle similar wholly to this it is said by Mr. Sutherland in his excellent treatise on the law of damages, that “where part of a tract of land is taken or damaged and its severance and the public use of it necessitates any new expenditure to protect- or maintain the ordinary use of the residue such expenditures or the necessity therefor is an element of damage. The owner has a right to recover the amount so expended or required to- be expended on the ground that the value of his premises is diminished accordingly. Thus, the necessity of maintaining' fences along the line of a railroad or highway is a recognized item of damage.” [4 Sutherland on Damages, sec. 1072.]

The rule of course should be limited to cases wherein only part of a tract devoted to a special use is appropriated. .It can have no relevancy to a ease wherein the whole of the parcel is taken. For, we repeat, in no case can the owner, for the convenience of the condemnor, be required to swap lands, or to go into the market and buy other lands in lieu of those taken. But in a case where the taking of a part of a tract which is devoted to a special use results in large depreciation in value for that special use, the measure of that depreciation ought to be the sum required to be expended in order to rehabilitate the property for such nse, or replace- the plant in statu quo ante capiendum; provided of course that rehabilitation in such manner be practicable. Otherwise, one whose fences had been taken from about his farm could refuse to build others and his farm being thus rendered useless as a farm, exact as damages the full value thereof; or one whose mill-pond was taken could demand the full value of his mill thus rendered useless for lack of water; or one whose urine or oil well was temporarily destroyed by condemning the tract on which the shaft or well or pump stood could demand full value of such mine or oil well. . In such case if a new fence, or pond, or shaft or well can be made on the land of the owner the cost of erecting the same or of making the change to reproduce the status quo, ought to be the measure of damages. In cases where no available property -is owned by him whose land is taken, the price at which other lands adjacent, equally as valuable intrinsically, as convenient, as economical in use, and as accessible, and which can be bought, may be shown as measuring the amount of depreciation to which the lands damaged but not physically taken have been subjected.

A situation wherein any other view is unthinkable is possible. For if the appellant’s lead factory had "been worth a million dollars and the parcel actually taken had been itself of little value and had contained an accessory of small intrinsic worth but one without which the million-dollar plant would have been rendered useless, the principle would be exactly the same. But even if appellant in the supposed case itself possessed no other land, would it be contended, that the city could be saddled with the entire value of the plant as .damages, when other lands in every way as available could be bought to reduce the damages? We think not, and conclude that in so far as the learned trial court considered the price at which other lands equally as available and usable by appellant could have- been obtained, as the measure of damages of the depreciation in value of the whole plant by reason of the taking of the corroding yard, he was right and we rule this specific point against appellant.

It follows that the judgment below should be affirmed. Let this be done.

All concur.


source: Caselaw Access Project

author: WALKER, P. J.

license: Public Domain

text:
    WALTER ROSS, Appellant, v. FIRST PRESBYTERIAN CHURCH OF STOCKTON, OMER WASSON and WALLACE WASSON.
    Division Two,
    August 28, 1917.
    1. HEIRSHIP: Illegitimate Child. The right of a plaintiff to claim title to land as the heir of the testator, who by will gave a life estate to his wife, is precluded by testator’s death on February 15, 1860, and the birth of plaintiff to said widow on May 31, 1861.
    2. -: -: Heir of Mother. A child of the testator’s widow who took no steps to enlarge the life estate given her by the will into a fee in one-half the land as authorized by statute, cannot claim title in the land as heir at law of such widow.
    3. WIDOW’S ELECTION: Acquiescence in Will: Limitations. In the absence of evidence to the contrary, it must be presumed that the widow, who probated her husband’s will and qualified thereunder as executrix, and which gave her a life estate in all his lands, elected to take under the will; and being thus seized, she could not. deal with the property in such a manner as to start the Statute of Limitations running adversely to the rights of the remaindermen.
    4. CONVEYANCE BY LIFE TENANT. A deed by the life tenant conveys to the grantee no such title as will enable him to successfully assert an interest in the land after the life tenant’s death. The life tenant’s interest terminated upon her death, and cannot be enlarged by her conveyance.
    5. -: Limitations. Whatever may have been the character of the holding of the land by the grantee of fhe life tenant, he cannot claim title by limitations, or defeat the rights of remainder-men, if sufficient time has not elapsed since the life tenant’s death to sustain a claim under the Statute of Limitations.
    6. APPEAL: Rulings Limited to Adjudication of Appellant’s Claims. On appeal the rulings must be limited to the errors of which appellant complains. So-that where plaintiff, who claims, first, as heir of the testator, second, as heir of testator’s widow, and, third, as grantee of the life tenant, is the only appellant, the court cannot review the adverse claims of the defendants, who filed cross-bills, and to whom the court adjudged the land in controversy in equal moities.
    Appeal from Cedar Circuit Court. — Hon. C. H. Shinker, Judge.
    Affirmed.

      Faulke & Brown and John B. Cole for appellant.
    (1) The will of Hugh Ross is an instrument inoperative and void as to passing any interest in the real estate in controversy to the defendant claimant, the First Presbyterian Church of Stockton, (a) • The will of Hugh F. Ross bears date February 10, 1860, and was admitted to probate March 31, 1860. The First Presbyterian Church of Stockton was not created or in existence, until November 20, 1903, -that is, it was not in legal existence until about forty-four years after the will- was executed. Douthitt v. Stinson, 63 Mo. 268. (b) The defendant church could not acquire title from a parent incorporated body because at the date Hugh F. Ross died the Missouri Constitution- of 1820 was in force and thereby it was provided “that no religious corporation can ever be established in this State.” Proctor v. Board of Trustees, 225 Mo. 52; Constitution 1820, art. 13, sec. 5. (c) Because the grant was not to any person, or persons, association or committee then existing or in being definitely pointed out or designated. Board of Trustees v. May, 201 Mr. 360; Wells v. Fuchs, 226 Mo. 106. (2) The will of-Hugh Ross either vested in the “Old School” Presbyterian Church at Stockton, Missouri, the whole remainder in Ms 560 acres of land in controversy, or his will became wholly invalid and inoperative as to such remainder. Courts cannot make wills for deceased persons. Lockridge v. Mace, 109 Mo. 162; Sevier v. Woodson, 205 Mo. 202; Board of Trustees v. May, 201 Mo. 360, 264 Mo. 533; Hadley v. Forsee, 203 Mo. 418. (3) The plaintiff, not having been provided for in his father’s will, although born after his father’s death, was entitled to inherit notwithstanding the will. 1 R. S. 1855, p. 660, sec. 2; G. S. 1865, chap. 129, sec. 2; R. S. 1879, see. 2162; R. S. 1889, chap. 51, sec. 4466; R. S. 1909, art. 5, sec. 333. Defendants having imputed to the mother of the plaintiff the character of a woman bad for vir-' tue and chastity, plaintiff offered to prove that his mother’s general reputation for virtue and chastity, from the time of Hugh Ross’s death until she died was good, by witnesses present in court, which offer the court excluded. “The law presumes that every woman is chaste, until the contrary appears.” State v. Kelley, 191 Mo. 691. Where immoral or illegal acts are sought to be imputed in any civil or criminal proceeding to a party and the conduct of such party in the respect impugned or sought to be impugned becomes a matter for judicial consideration, then, and in every such case, the general reputation of the parties so assailed is competent toward rebutting the commission of the imputed offense. Greenleaf on Evidence (14 Ed.), p. 82, sec. 54; Gutzwiller v. Lackman, 23 Mo. 168; Rogers v. Troost, 51 Mo. 470. (4) The trial court overlooked, or ignored the pleadings and the evidence as to the actual, open, notorious, continuous, exclusive and adverse possession of the plaintiff in the claim of ownership for more than 30 years. R. S. 1909, sac. 18.79; R. S. 1900, sec. 1882.

      S. E. Osborne, W. B. Hawkins and Mann, Todd & Mann for respondent First Presbyterian Church of Stockton, Missouri.

      (1) The will is not inoperative and void, and the bequest of the proceeds of the sale of the land to be devoted to the building of a house of worship at Stockton, Missouri, for the benefit of the Old School Presbyterian Church is valid, because: (a) It is a devise to a public charity. 3 Pomeroy’s Equity (3 Ed.), sec. 1021; Schmidt v. Hess, 60 Mo. 591; Hadley v. Forsee, 203 Mo. 418; Russell v. Allen, 107 U. S. 163; 6 Cyc. 913; Attorney-General v. Briggs, 42 N. E. 118; Attorney-General v. Trinity Church, 91 Mass. 422. (b) A charitable gift will not be permitted by a court of equity to fail because of the non-incorporation of the. society to whom or for whose benefit the conveyance was made, or for the lack of trustee. The power of the courts of equity to administer such trusts belongs to its general jurisdiction as a court of chancery, and is not derived from the statutes of Elizabeth. The fact that there was no organized or incorporated church at Stockton in 1860 when the will was made does not invalidate the bequest. Buckley v. Monk, 187 S. W. 31; Missouri Historical Society v. Academy of Science, 94 Mo. 459; Schmidt v. Hess, 60 Mo. 391; Chambers v. St. Louis, 29 Mo. 453; Russell v. Allen, 107 U. S. 163; 2 Perry on Trusts (3 Ed.), see. 687-700; 6 Cyc. 914. (c) Public uncertainty as to the individual to whom the benefit reaches does not defeat the gift, but on the contrary is one of the features that .distinguishes a public from private charity. And the courts will enforce it if the donee sufficiently shows his intention to create a charity and indicates its general nature and purpose, and described in general terms the classes of the beneficiary. 3 Pomeroy’s Equity (3 Ed.), sec. 1025 ; 6 Cyc. 936; 40 Cyc. 1460-1471. (d) Gifts to charitable uses have always received favorable consideration by the courts. Chambers v. St. Louis, 29 Mo..543; Academy of the Visitation v. Clemens, 50 Mo. Í67; Schmidt v. Hess, 60 Mo. 591; Howe v. "Wilson, 91 Mo. 45; Missouri Historical Society v. Academy of Science, 94 Mo. 459; Powell v. Hatch, 100 Mo. 592; Barclay v. Donnell, 122 Mo. 561; Sappington v. Trustees, 123 M.o. 32; Lackland v. Walker, 151 Mo. 210; Hadley v. For-see, 203 Mo. 418. (e) A bequest for charitable uses is valid even though there be no. trustee appointed to carry it into effect: The court of equity will either appoint a. trustee or execute the trust itself. 1 Perry on Trusts, sec. 249; Mormon Church v. United States, 157 ,U. ,S. 57; 3 Pomeroy’s Equity (3 Ed.), sec. 1026; In re John’s Estate, 36 L. R. A. 242. (f) The contention of appellant that the defendant church could not acquire title from a parent incorporated body because at the date of the death of Hugh F. Ross, the Constitution of 1820 was in force, which provided that no religious corporation can ever be established in this State, has no force and effect here. (1st) Because the defendant church has not acquired, title - and is not seeking to acquire title to the 560 acres of land in controversy. The bequest to it by the will of Hugh F. Ross was not of the land. The bequest was that -the land be sold and the proceeds used to build a house of worship for the benefit of 'the Old School Presbyterian Church at Stockton. Such property, to-wit, houses of worship, churches have always had the right under any and all constitutions of the State to hold. (2nd) The parent church was never incorporated. Its trustees were, in 1890. The incorporation of the trustees of the G-eneral Assembly is not the incorporation of the church itself. Trustees of the G-enéral Assembly v. G-uthrie, 6 L. R. A. 321. (3rd) Because the appellant Walter Ross having no right, title, interest or estate whatever in the land in controversy, can raise no such question by this appeal. Having no interest himself, he cannot question the validity of the will as to the church. Barkley v. Donnelley, 112 Mo. 570; Wheeler v. Land Co., 193 Mo. 291; In re McG-raw, 2 L. R. A. 387, 136 U. S. 152; McKeorm v. Officer, 127 N. Y. 687; Patton v. Patton, 39 Ohio St. 500. (4th) The church did not lose its existence or organization by incorporating. It still has an association capable of appropriating and using and enjoying the house of worship when it is built from the proceeds of the sale of the land in controversy. Catholic Church V. Tobbien, 82 Mo. 424; Lilley v. Tobbien, 103 Mo. 488. (g) The church did not take under the will then and there; that is, upon the death of Hugh Ross, as asserted by appellant. The trust created was an active trust, the trustees to be appointed by the court under its equity power being charged with the sale of the property, the building of the church or the turning over of the proceeds of the sale to the proper officers of the church for that purpose. The Statute of Uses does not apply to an active trust. Webb v. Hayden, 166 Mo. 39; Garland v. Smith, 164 Mo. 1; Simpson v. Erisner, 155 Mo. 157; Newton v. Rabenack, 90 App. 651; Carter v. Long, 181 Mo. 701. (h) The direction in the will that the land be sold and the proceeds used to build a house of worship in Stockton for the benefit of the Old School Presbyterian Church was a request of the proceeds of the sale of the land and not of the land to the church. Sanitarium v. McCune, 112 Mo. App. 332; Shepherd v. Clark, 38 111. App. 66; Methodist Church v. Smith, 56 Md. 362.

      Parks & Son for respondents, Omer Wasson and Wallace Wasson.
    (1) Under our law, a legitimate child is one who is born in lawful wedlock, or of a widow within ten months after the death of her husband, or who is born before the marriage of its parents, who afterwards marry and the child then, receives the recognition of its parents. Gates v. Seibert, 157 Mo. 272; Martin v. Martin, 250 Mo. 545. A bastard at common law is one, not only begotten but born out of lawful wedlock, or not within a competent time after its determination, etc. 3 Am. & Eng. Ency.- Law, 872. The general reputation and common report of the neighborhood is generally held to be admissible in questions of legitimacy. 5' Cyc. 630 (3). Evidence of the resemblance of the child to the putative father, has been held competent. 5 Cyc. 630 (4). (2) Mere possession does not create title by limitation, however long continued; to have such effect, the possession must be open, notorious, continuous, and adverse and hostile to the true owner, under color of adverse title, or under a claim of ownership, hostile to the true owner. Crowl v. Crowl, 195 Mo. 338. The presumption is that every possession is rightful, consistent with and not in opposition to or adverse to, the true title and ownership; and one who relies on adverse possession must offer sufficient proof to rebut this presumption. Hecksecker v. Cooper, 203 Mo. 278. A possession friendly in its inception begun in subordination to the true title, does not change into a hostile one by a mere change of mental attitude but continues friendly, unless, by open and unequivocal acts, equivalent to ouster or disseizen, and sufficient to bring home notice to the true owner, it has been changed into one adverse and hostile to him. McCune v. Goodwillie, 204 Mo. 306; Mo. L. & L. Co. v. Jewell, 200 Mo. 707; Williamson v. Brown, 19'5 Mo. 313; Coberly v. Coberly, 189 Mo. 1; Handlan v. MeMann, 100 Mo. 124; Wilson v. Lerehe, 90 Mo. 473; Pitzman v. Boyce, 111 Mo. 387. Grantees of life tenants can no more contest the remaindermen’s title by adverse possession than could life tenants themselves. Their possession, if adverse to an outstanding title, inures to the benefit of the remaindermen. Charles v. Pickens, 214 Mo. 212. When a party is in possession of property in priority with the rightful owner, nothing short of an open and explicit disavowal and disclaim of a holding under that title, and assertion of title in himself, brought home to the owner, will satisfy the law, or lay a foundation for the operation of the Statute of Limitations. Gordon v. Evans, 97 Mo. 587. Adverse possession cannot run against the remaindermen, during the lifetime of the tenant for life. Swearingen v. Stafford, 188 S. W. 98; Roberts v. Thomasson, 174 Mo. 378; Meddis v. Kenny, 176 Mo. 200; Brown v. Moore, 74 Mo. 633; Moran v. Stewart, 246 Mo. 462; .Shoultz v. Lee, 260 Mo. 719. The possession of the life tenant is not adverse to the remaindermen. McThurston v. Farley, 194 Mo. 502. The Statute of Limitations does not begin to run against'reversioner until the death of the life tenant. Eeed v. Lowe, 163 Mo. 579; Linville v. Greer, 165 Mo. 380; Hall v. French, 165 Mo. 430; Westmeyer v. Gallenkamp, 154 Mo. 28; Eothwell v. Jamison, 147 Mo. 601; Carey v. West, 139 Mo. 185; Eoberts v. Nelson, 87 Mo. 229; Dyer v. Brannock, 66 Mo. 391; Bradley v. Ey. Co., 91 Mo. 493. Where land is in possession and occupancy of one who holds it by reason of his purchase from widow, the Statute of Limitations does not begin to run in his favor as against the owner of the title until dower is assigned or the widow dies. Osborn v. Welden, 146 Mo. 185.
   WALKER, P. J.

This suit was commenced in the circuit court of Cedar County under the provisions of Section 2535, Revised Statutes 1909, to ascertain and determine title to the land described in the petition. The defendant the Presbyterian Church of Stockton answered denying that the plaintiff; or its co-defendants, the Wassons, had any interest in the land, and by cross petition alleged that under the will of one Hugh F. Ross it became the residuary legatee of said Ross and prayed that the court appoint a special trustee or master in chancery to sell the land and pay over the proceeds to the trustee of said church.

The plaintiff answered this cross petition, alleging that the defendant Church took nothing by reason of or under the will of said Hugh F. Eoss and that plaintiff was the owner in fee of the land and prayed the court to so adjudge.

The defendants Wasson answered denying that either the plaintiff or the Church had any interest in the land, and filed a cross petition setting up that they were the owners in fee of the land as the heirs of Hugh' F. Eoss and prayed the court to so adjudge.

Plaintiff answered the defendants Wassons’ cross-bill, denying that they had any title to or interest in the land in question as the heirs of said Hugh F. Ross or otherwise, and alleged title in fee in the plaintiff.

The defendants Wasson denied the allegations' in plaintiff’s answer. The issues being made up. upon the cross petitions of the respective .defendants and the plaintiff’s answer thereto and the reply to such answer,' plaintiff dismissed as to his petition and the cause went to trial on. the issues thus made.

On the application of the plaintiff a change.of venue was awarded to the circuit court of Polk County, resulting upon a trial in a finding for the defendants.

The controversy involved: (1) the construction of the will of Hugh .F. Ross, (2) the legitimacy of Walter Ross as a son of Hugh F. Ross, and (3) the application of the Statute of Limitations.

Hugh F. Ross is the common source of title. He died testate in February, 1860, seized of the land in controversy, which consisted of about 500 acres on Sac River. He left surviving him a widow but no issue. Two children born of this marriage had died in infancy. The clause of Hugh F. Ross’s will upon which the controversy herein is based is as follows:

“That is to say, first, after all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of as- follows, to-wit: To my well beloved wife, Caroline Ross,- the following described tract or parcel of land, to-wit [here the land in controversy is described as in plaintiff’s petition], containing five hundred and forty acres. Said tract or parcel of land being the farm on which I now reside, known as the Ross farm, to have and to hold the' same together with all the rents, profits and advantages of the same during her natural' lifetime; and after her death to be sold and the proceeds thereof to be applied to the erection of a house of worship in the town of Stockton, for the use and benefit of the Old School Presbyterian Church.”

After the death of Hugh F. Ross his wife continued to live on the land, and about May 31, 1861, gave birth to the plaintiff. Six years after the death of Hugh F. Ross his widow married one John F. Kennedy. Plaintiff lived on the land with his mother and step-father until 1877, when, upon his marriage, he took possession of about one-half of the land and cultivated same, and in 1888 erected a dwelling thereon which he and his wife continued to occupy and were in possession of at the trial of this cause in June, 1912.

In March, 1900, his mother and her husband made and delivered to him a warranty deed to all of the land in controversy. Thereafter he made many permanent and valuable improvements thereon and continued ‘to occupy and use the land, exercising all the rights of ownership thereto. The mother-of plaintiff died in March, 1910. At the time of her death there was no Presbyterian church in the town of Stockton. The incorporation of a church organization of that faith was effected at Stockton on the 22nd day of March, 1904. The membership at and since that time has been small, no church edifice has been erected and the meetings have been irregular. There is no showing that prior to 1910 any organization styling itself the “Old School Presbyterian Church of Stockton” sent any representatives to a meeting of the Presbytery of that district. No formal steps have ever been taken by any church of the faith named to accept the trust created by- the will of said Hugh F. Ross. This is substantially all the evidence upon which the defendant Church bases its claim to the land in question.

The defendants Wasson base their claim to the land upon a right of descent from their mother, who was a widow of John E. Ross, a brother of Hugh F. Ross, the common 'source of title. Hugh F. Ross left surviving him no one entitled by blood to inherit from him except the brother, John E. Ross, who survived him ten years and died in 1870. John E. Ross left no issue or others 'capable of inheriting by reason of consanguinity and it is contended that under the statute his widow, who survived him, was the only person capable .of inheriting, and that her right to take became vested upon the death of her husband subject to the life estate of the widow of the testator. The widow of John E. Ross in April, 1874, intermarried with one John Wasson, by whom she had two sons, who survived her and who are the individual defendants here. The mother of these defendants died intestate in October, 1910, and her husband died in November, 1911.

The court, upon the facts stated, found that the plaintiff had no interest in the land, and it having been shown from the admissions and agreements between said Church and the Wassons, defendants, that one-half of the net proceeds of the sale of said property and the net rents and income therefrom until the sale is effected is a proper and adequate sum to be devoted to the purpose of building a house of worship for said church, the court adjudges that the defendant church is entitled under the will of said Hugh F. Ross to have said land sold and conveyed under the direction and through the instrumentality of trustees named and the proceeds arising therefrom divided, one-half to the trustees of the said Church and the other half to the said defendants Wasson as tenants in common, share and share alike. Specific provisions are also made in this finding, not necessary to be set forth in a determination of the question here at issue, among others the naming of trustees to take charge of and account for the rents and profits arising from the land during the pendency of this appeal.

The right of the plaintiff to claim title to the land as an heir at law of Hugh F. Ross is precluded by the death of the latter February 15, 1860, and the birth of the plaintiff May 31, 1861. [Gates v. Seibert, 157 Mo. l. c. 272; Martin v. Martin, 250 Mo. l. c. 545.] Nor can plaintiff’s claim of title as an heir at law of his mother, the widow of said Ross, be maintained. Under said Ross’s will she only took a life estate in the land; to this limitation of her tenure she acquiesced by taking no steps to enlarge her interest into a fee to the one-half of said land as then and now authorized by statute (Sec. 5, chap. 56, R. S. 1855; Sec. 351, R. S. 1909). Upon her death, therefore, no inheritable estate was left to the plaintiff. This fact necessitates the conclusion that the deed made to this land in 1900 by the mother and step-father of plaintiff to him conveyed no such title as will enable the plaintiff to successfully assert an interest in such land at this time. Whatever estate was thereby conveyed was limited to the interest of the mother therein and terminated with her death. The nature of an estate by which land is held cannot be enlarged by a conveyance. A grantee cannot take more than the grantor has to convey. [Boothe v. Cheek, 253 Mo. 119; Potter v. Long, 217 Mo. 607; Turner v. Railroad, 130 Mo. App. 535.]

As to the claim of title under the Statute of Limitations, plaintiff’s mother probated her husband’s, Hugh F. Ross’s will and qualified thereunder as executrix. In the absence of evidence to the contrary, and there is none, it must be presumed that she elected to take under the will, which created in her a life estate. Thus seized, she could not deal with the property in such a manner as to start the running of the Statute of Limitations adversely to the. rights of the remainder-man, who under the will is the residuary legatee. Her deed to plaintiff, therefore, could give him no greater right or claim to title than she possessed and his title, like hers, could only inure to the benefit of the remainderman. [McMurtry v. Fairley, 194 Mo. 502; Charles v. Pickens, 214 Mo. 212; Shoultz v. Lee, 260 Mo. l. c. 725.] The mother of plaintiff died in March, 1910, and whatever has been the nature of plaintiff’s holding of said land since that time, a sufficient period has not elapsed to sustain a claim of title under the statute.

The plaintiff, who is the sole appellant, is the “party aggrieved” within the meaning of the statute .(Sec. 2038, R. S. 1909) and our review of this casé has therefore been limited to a consideration of the errors of which he complains- Under this state of facts wé are not authorized to review the trial court’s ruling that, although the defendant Church is the' residuary legatee, the individual defendants are heirs and' hence entitled to half of the proceeds of the sale of the land.

It will suffice to say that our affirmance of the judgment below is limited to the finding that the plaintiff is not entitled to recover.

All concur; Williams, J., not sitting.


text:
    Ex parte ROBERT E. HOLLIWAY, Petitioner.
    Division Two,
    October 8, 1917.
    1. CONTEMPT: Sufficiency of Judgment. A judgment which, sets forth facts conveying definite information of the precise subject-matter under inquiry by the grand jury at the time contemnor refused to answer, is sufficiently certain as to such subject.
    2. -: Revealing Secrets of Grand Jury. Inquiry by the grand jury of a witness as to the source of information he caused to be published in a newspaper, that a certain person had been indicted, who had not been arrested, is a legitimate and proper subject of inquiry by the grand jury.
    3. -: -: Reasons for Statute. The purpose of the statute in requiring the secrets of the grand jury to be kept inviolate and in forbidding a disclosure of the fact that an indictment has been found against a person not in actual confinement or under bail, is to prevent the escape of such person; but the fact that the statute forbids such revelations, is of itself sufficient reason, whether the offense charged be great or small.

      i. -: -: Excuse: To Accommodate Newspaper Reporter. He who violates the command of the statutes forbidding a revelation of the fact that the grand jury has found an indictment against an accused who has not been arrested or bailed, cannot justify his conduct by the fact that the person to whom under the cover of confidential friendship -he gave the information was the reporter of a newspaper who desired to “scoop” his competitor in the ' business of obtaining and printing so-called news.

      5. -: Refusing to Testify Before Grand Jury: Constitutional Immunity. The constitutional provision against self-incrimination will not protect a witness before the grand jury in refusing to tell whether the information he published in his newspaper, that a certain person had been indicted, was obtained from a member of the grand jury or an officer of the court or a witness who had been before them. If any of those persons made a revelation of the information he was guilty. of a misdemeanor, but a reporter who listened to the disclosure, or wrote it down, or reported it, was guilty of no offense, and cannot excuse himself from telling the grand jury which one of them gave him the information, on the ground that his answer would tend to incriminate himself— though an answer to an inquiry as to “where he got his information” might do so, but that is not decided, because he did not give his “constitutional rights” as his reason for refusal to answer . that question.
    6. -: Term of Commitment: Error Corrected bn Habeas Corpus. The judgment and commitment fixing the punishment of a contemnor, who has been properly adjudged guilty of contemptuously and contumaciously refusing to answer proper questions propounded to him by the grand jury, at imprisonment “until the further order of this court, or until he be otherwise legally discharged .by due process of law,” is manifestly erroneous, since the statute fixes the duration of punishment till contemnor gives the evidence which he had previously contemptuously refused to give; but he is not on that account entitled, on Habeas Corpus, to his unconditional discharge, but the contempt being criminal, as contradistinguished from civil contempt, the court, under the provisions of the statute (Sec. 6316, R. S. 1909), will assess the proper punishment.
    Habeas Corpus.
    Writ denied.

      A. T. Dumm for petitioner.

      Frank W. McAllister, Attorney-General, for respondent.
   FARIS, J.

This is an original proceeding under tbe Habeas Corpus Act, whereby petitioner, held in custody of one Anton B. Richter, as sheriff and ex-officio jailer of Cole County, under a commitment for an alleged contempt of court, for that, as it - is charged, petitioner refused to answer certain questions propounded to him by the grand jury of said Cole County, now seeks his discharge.

Upon the issuance of our writ, the sheriff made return setting out in full the judgment and the order of commitment in virtue of which the sheriff justifies his action in detaining-petitioner. Upon this return petitioner, urging its insufficiency as a matter of law, moves for judgment upon the pleadings. Since all matters necessary to an understanding of both the law and the facts of the ease are set forth in the judgment of the trial court, we copy this judgment below, omitting merely formal parts, thus:

“Now at this day comes into court the grand jury heretofore empanneled, to-wit: George W. Shell, Foreman ; T. G. Nilges, Kearney Collett, Robert Glover, Julius H. Conrath, Wm. Turbit, Ed. Allen, Joe Ortmeyer, A. J. Musick, A. J. Moerschel, Geo. McPadden, and Paul Brace, accompanied by Robert E. Holliway, a witness duly subpoenaed before said grand jury, and reports to the court in writing that they have under consideration the question as to whether any member of the grand jury or any witness who has testified before the grand jury has violated their oaths by divulging and making known what the grand jury has had under consideration, or facts that have come to their knowledge which before the grand jury as a witness, and that the said Robert E. Holliway was duly summoned as a witness, and appeared before said grand jury and was duly sworn as a witness before said grand jury, as required by the statutes of this State, and that inquiry was made of himi as to the source of the information he received appearing in the St. Louis Republic in its issues of Wednesday, September 19th, and Thursday, September 20, 1917, entitled “7 True Bills are Yoted in Coal Inquiry, ’’ and purporting to have been sent to the said newspaper by said Robert E. Holliway, and that they have propounded to the said Robert E. Holliway, the following questions, all of which he had refused' to answer.
“That the questions propounded and the answer of the said Robert E. Holliway thereto, were as follows:
“Q. Where did you get your information? A. I can’t tell you.
“Q. Did any member of tbe grand jury give you this information? A. I can’t tell you.
“Q. Who told you seven indictments bad been returned against Jno. W. Scott for grand larceny and embezzlement? A. I can’t answer.
“Q. Why can’t you answer? A. Standing on my constitutional rights.
“Q. I understand you to say that you refuse to answer those questions. .A. You can place youir own interpretation on that.
“Q. Did any man in this room tell you that seven indictments had been returned against Jno. W. Scott? A. Can’t tell you.
“Q. Do you refuse to tell? A. You can place your own interpretation on that; I can’t tell.
“And thereupon, the court, in the presence of the grand jury, and the said witness, Eobert E. Holliway,- did determine that the said witness was bound to answer the questions aforesaid, and both the grand jury and the said witness were immediately informed of the decision, and thereupon, the said grand jury with said witness retired, and afterward came into court with said witness, and informed the court that the said witness refused to answer said questions, and being interrogated by the court in regard thereto, the said witness informed the court that he would not answer said questions, in the presence of said grand jury, and thereupon the court did order and adjudge that the said witness Eobert E. Holliway was guilty of a contempt of this court, on account of his refusal to testify, as aforesaid, and does adjudge that he the said Eobert E. Holliway be committed to the jail of Cole County, Missouri, for such contempt, as provided by Section 5082, of the Eevised Statutes of Missouri of 1909 and it is further ordered and adjudged by the court that the clerk of this court immediately issue and deliver a proper commitment under this order and judgment, directed to the Sheriff of Cole County, Missouri, who is also the jailer thereof, commanding and requiring him to commit the said Robert E. Holliway to tbe jail of the county aforesaid, and him there safely keep, until the further order of this court,' or until he be otherwise discharged by due process of law. ’ ’

I. Three contentions are made by petitioner, all of which go to the alleged insufficiency of the judgment and the order of commitment, which follows the judgment. These are, to-wit, (a) that the article printed in the newspaper, headlines of which alone are set forth in the court’s judgment, should have been copied in full therein; (b) that petitioner claimed his “constitutional rights” when interrogated by the grand jury, meaning thereby, counsel says, the privilege of refusing to answer the' questions asked,' because the answers thereto tended or might tend to incriminate him; (e) that under the law such refusal is justifiable, and (d) that the order of commitment is void, because it does not definitely fix the term for which petitioner was committed to jail. These contentions we will look to in their order briefly.

A mere cursory glance at the order of commitment shows the fallacy of the first contention. This order-recites in pertinent phrase that the grand jury came into court and reported to the court in writing, “that they have under consideration the question as to whether any member of the grand jury, or any witness who has testified before the grand jury, has violated their oaths by divulging .what the grand jury has had under consideration, or facts that have come to their knowledge while before the grand jury as a witness.” Continuing, the order in substance says that petitioner was duly summoned as a witness, that he appeared before the grand jury, was sworn as a witness, and inquiry made of him as to the source of the information whereon he based his statement that “seven true bills are voted in goal inquiry,” as set forth in' an article printed in a certain designated newspaper, which article purported to have been written and sent' to - said paper by the petitioner. Then' follows a true copy of the questions asked petitioner, and which he refused to answer, all having reference, as the context plainly shows, to the source of' petitioner’s information whereon he bottomed the' statement to his newspaper that seven true bills had been found by the grand jury. Obviously it is as plain as day that the facts are sufficiently tied together so as to obviate either lack of certainty, or inability to convey definite information touching the precise nature of the subject-matter under inquiry by the grand jury.

If it be among the contentions of petitioner’s learned counsel, that, as a matter of law, the subject-matter of the inquiry was such as that no contempt could be commited in refusing to answer the interrogatories propounded, counsel is likewise in error. We do not gather, however, that counsel goes so far in his contentions, but rather that he concedes this phase of this point, deeming it wise to hang this defense solely upon a bald technicality. But lest we err through misunderstanding counsel, we pause a moment, to say that it is too plain for argument that the subject of the inquiry then before the grand jury was a legitimate one, and one about which the grand jury was not only permitted to inquire, but one about which .it was its sworn duty to inquire. Not only do the individual component members of a grand jury take an oath that they will not divulge the secrets of the grand jury room- (Sec. 5069, R. S. 1909), but the-divulging‘of certain of' these secrets is made a misdemeanor by statute. .[See. 5088, R. S. 1909.] The above section thus provides:

“No grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them except when lawfully required to .testify as a witness in relation thereto; nor shall he disclose the fact of any indictment having been found against any person for a felony, not in actual confinement,-until the defendant shall have been arrested thereon. , Any juror violating the provisions of this section shall'be deemed guilty of a misdemeanor.”

By express statute this grand jury was privileged to indict, in fact it was its duty to indict, any individual member of its body, for any offense which the proof produced before the jury might show such juror to have committed. [Sec. 5083, R. S. 1909.] Another statute requires that every witness who appeared before the grand jury should be sworn not to divulge any matter which the jury might have under consideration, or about which the witness might be examined, or .any matter which should come to the witness’s knowledge while before the grand jury. [Sec. 5070, R. S. 1909.] A violation of the witness’s oath in the behalf above, is made a misdemeanor. [Sec. 5071, R. S. 1909-.] Other statutes make it a misdemeanor for any judge, prosecuting attorney, or other officer of any court to disclose the fact that an indictment has been found against any person, not in actual confinement, or under bail to answer such charge. [Sec. 5100, R. S. 1909.] The section last above is not pertinent here, because the class of persons therein mentioned was not under investigation, according to the language of the judgment, and order of commitment. We mention the latter statute in passing, as illustrative of the policy of the law to keep, and strenuously to enforce the keeping of the secrets of the grand jury room inviolate. Reasons for this policy are obvious and not far to seek, but reasons are not necessary when a statute though it may itself state specifically no reason, yet plainly forbids the divulging of these matters. Section 5099, Revised Statutes 1909, is a type of all of the sections of the sort confronting us. By. its obvious terms it clearly foreshadows the reasons why divulging information as to the finding of an indictment, prior to the arrest of the accused, is forbidden, whenever such accused is not in actual confinement or under bail. This reason is to prevent the escape of the accused. It is manifestly no answer to this statute to say that in these cases the persons indicted, though not in custody, and though not under bail, would yet not attempt to escape, but would stay and undergo trial, and therefore that divulging the fact of indictment would do no harm. The statute law, if it is not to be written in a thousand volumes, can possess' no such elasticity a’s to allow such an excuse as the above. In the very nature of things there must be but one rule as to all indictments for whatever crime or offense; however heinous, or the converse thereof, such an offense may be, and so the statute ordains. If the crime under investigation had been merely disturbing the peace, or obstructing a public highway, the rule is the same as for murder, or rape, or treason, though the reason for the rule might seem in the latter cases to be far more cogent. Nor does it change the rule or mitigate the offense, that he who violates any one of the above statutes, was under the guise of friendship induced to do so by someone desiring to “scoop” his competitor in the business of obtaining and printing so-called news. The cold commercial desire to print facts in advance of the time when public policy, or the public welfare permits the same to be made public, may be good business, but it is poor patriotism, and worse citizenship. It is at best a vicious sort of harmful intermeddling with the enforcement of the law, or the conservation of the public welfare.

Since then the clearly stated matters and things under investigation were proper matters of investigation, and matters which it was the duty of the grand jury to investigate, and since the questions asked were legal and proper ones, no reason exists in law, why petitioner should not have been compelled to answer them, or refusing to do so, why he should not be committed to jail, there to remain till he does see fit to do so. [Sec. 6372, R. S. 1909.] For the law does not tolerate the quixotic but strabismussed idea of refusing on so-called principle to violate the confidence of a law-breaker! Such a principle the law refuses to recognize for reasons of public policy, morals and welfare, which will instantly occur to the law-abiding citizen. It follows that this contention must be disallowed.

II. Passing the question that petitioner by what he said did in fact claim immunity from answering, because Ms answers would tend to incriminate him, we come to the more important question here (which includes and disposes of the question of fact raised touching the verbal sufficiency of his claim), whether it was under the surrounding circumstances and the law possible for petitioner to claim immunity on this ground.

Of course such claim to immunity, when such immunity really exists, is always to be bottomed upon the guarantee of the Bill of Rights (Sec. 23, art, 2, Constitution of Missouri), which forbids that any “person shall be compelled to testify against himself in a criminal cause, ’ ’ as this provision is interpreted by this court in'the case of State v. Young, 119 Mo. 495, wherein it was held that the immunity conferred by the Constitution extended to other causes, places and courts, besides trials merely of criminal causes.

There has been much loose writing upon this question of immunity in this jurisdiction. But Judge Gantt, speaking for this Division, in the case of Ex parte Gauss, 223 Mo. l. c. 286, said:

“In our opinion, the petitioner having testified that he could not answer the questions without criminating himself, and it not being entirely plain that his answers might not lead to a prosecution of himself, we think the circuit court erred in committing him for contempt in refusing to answer.”

This rule will be sufficient for the purposes of this case. So we need not pause to inquire whether the tendency of some of the Missouri adjudged cases has not been toward a narrow and technical rule which would leave the witness the sole untrammeled judge of the incriminatory tendency of the questions propounded to him. Such a rule as the latter would put the entire enforcement of justice at the mercy of a wilful and recalcitrant witness, and might well block all prosecutions for crimes. But we need not quarrel with these far-flung cases here. The manifest converse of the negatively-phrased rule announced in the Gauss case is present here in the instant case, and it is “entirely plain” that the answers of petitioner to the. questions which were here asked him, and which he refused to answer, could not tend in any degree to incriminate him, save and except the broad one as to “where he got his information,” and as to this one:petitioner did not properly save his “constitutional rights.” It can be seen that the answer to the broad' question, as to where petitioner got his information, that is, how and from what place he got it, might under some circumstances tend to incriminate the witness. For if he had obtained access to the papers in the case by burglary, or by highway robbery, or by the commission of some other crime, and upon being questioned as to his source of information should swear that his answers would criminate or tend to criminate him, it is obvious that the point would be well taken. Ordinarily, however, the fact that the witness must make his claim of immunity under oath prevents a resort to a claim of such immunity as a mere subterfuge to escape answering, except where the fact of incriminatory tendency really exists. But few. witnesses in a court charged with law-enforcement follow the quixotic principle of loyalty to the confidences of a law-breaker, so far as to permit it to become a suborner of perjury.

The other questions asked petitioner went to the identity of the person or persons who gave him the information which he caused to be published. Under the several statutes which we have quoted or made reference to, the crime denounced is directed against the members of the grand jury, certain officers of the court, and witnesses who divulge outside of the jury room facts which have come to their knowledge by reason of having been witnesses before the grand jury. If a juror, or an officer of the court, or a witness who has been before the grand jury should have disclosed to petitioner prior to the arrest of the persons indicted, the fact that indictments had been found against such persons, the juror, officer, or witness would be guilty of a misdemeanor, but petitioner as the mere recipient of the disclosure would be guilty of no offense, either for that he listened to the disclosure, or that he repeated it, or wrote it down and caused it to be published after he heard it. It follows that this contention must likewise be disallowed.

III. Coming to the last point reserved for discussion, ,we meet a more troublesome question. By a reference to the closing language of the order of commitment, which followed substantially the judgment of contempt, which we quote in our statement, we find this language defining, the term and period for which the imprisonment inflicted was to endure, to-wit: “You, the said keeper of the said jail are hereby required to receive the said Robert E. Holliway, into your custody and him confine in the jail of said county until the further order of this court, or until he be otherwise legally discharged by due process of law, and for so doing this shall be your warrant. ’ ’

From the above excerpt it clearly appears that the term of imprisonment assessed by the circuit court is erroneous, for that it fixed the duration of petitioner’s punishment “until the further order of the corut, or till he be otherwise legally discharged by due process of law,” instead of fixing the duration of such punishment till petitioner gives the evidence which he had before contemptuously refused to give, as provided by our statute, which fixes the punishment for contempts of this sort. [Sec. 6372, R. S. 1909.]

Learned counsel for petitioner strenuously contends that this error in fixing the punishment herein is fatal, and entitles petitioner to his unconditional discharge from custody. It is patent that such a contention has no merit, in either abstract justice, logic, or morals, and that if it is to be allowed at all, it must be excused as a far-fetched application of a most attenuated technicality, against which the Press of the State have long inveighed most piously. We think, however, that the Legislature has saved us from the necessity of absolutely discharging petitioner upon so bald a technicality, after his guilt has been demonstrated.

This is a criminal contempt, committed in the presence of the court, and bottomed on contumacious disregard of the court’s authority and office, as contradistinguished from a civil contempt, which arises from the mere violation, ordinarily outside of the court’s presence, of an order of' court in a civil proceeding. Therefore, since it is a criminal contempt, no reason is seen why the provisions of section 5316, Revised Statutes 1909, should not apply to the solution of the contention made. This section of our statute in pertinent substance reads thus:

“No person shall be discharged under the provisions of the Habeas Corpus Act . . . for the reason that the judgment by virtue of which such person is confined . . . was erroneous as to time or place of imprisonment, but in such case it shall be the duty of the court or officer hearing the ease to sentence such person to the proper place of confinement, and for the correct length of time, from and after the date of the. original sentence, and to cause the officer or other person having such prisoner in charge to convey him forthwith to such designated place of imprisonment.”

We are constrained to hold that the statute which we quote above covers fully the situation presented by the facts in this case. If the circuit court of Cole County had had .no jurisdiction of the contempt proceedings, or if it had exceeded its jurisdiction, or if it had done something in finding petitioner guilty which the law, or even the facts of the contempt charged did not warrant, then we could absolutely discharge petitioner in this proceeding. [Ex parte Creasy, 243 Mo. 679.] For then the action of the trial court being void, the judgment which it gave would be subject to collateral attack. [2 Freeman on Judgments, see. 619; Hurd on Habeas Corpus, 327.] But the court had jurisdiction of petitioner’s person and of the subject-matter, as well as jurisdiction to sentence petitioner to jail, and the court proceeded correctly, as we have seen above, in all things, except only as to the period fixed as the duration of petitioner’s imprisonment. In this the learned trial court fell into error, seemingly by a mere loose selection of words. In such a situation we are not allowed to discharge the petitioner from custody, but both the statute quoted and the eases adjudged thereunder make it our duty to render the proper and lawful judgment in the case, and then to remand the petitioner, till he shall so far repent of his recalcitrancy as to answer the questions propounded to Mm. [Sec. 5316, R. S. 1909; Ex parte Kenney, 105 Mo. 535; Ex parte Cohen, 159 Mo. 662; Ex parte Renshaw, 6 Mo. App. 474.] This is not only the rule in this State under our statute, but it is the modern and common sense rule in the great majority of other jurisdictions, some of which at least seem to have no statute on the subject. [Ex parte Cica,137 Pac. 598, 51 L. R. A. (N. S.) 373; In re Chase, 18 Idaho, 561; Martin v. District Ct., 37 Colo. 110; In re Richards, 150 Mich. 421; Ex parte Foster, 138 Pac. 849; In re Blystone, 75 Wash. 286; Harris v. Lang, 27 App. D. C. 84; Connella v. Haskell, 87 C. C. A. 111; De Bara v. United States, 40 C. C. A. 194; In re Taylor, 7 S. D. 382; In re Graham, 138 U. S. 461; In re Swan, 150 U. S. 637; State ex rel. v. Klock, 48 La. Ann. 67; Sennott’s Case, 146 Mass. 489; Ex parte Burden, 92 Miss. 14; In re Fanton, 55 Neb. 703; Ex parte Mooney, 26 W. Va. 36; In re Graham, 74 Wis. 450; 12 R. C. L. 1208.]

Proceeding to perform our duty under the statute supra: It is ordered, considered, and adjudged that the petitioner, Robert E. Holliway, for his contempt of the circuit court of Cole County, in. the State of Missouri, for that he contemptuously and contumaciously refused, and continues to refuse to answer certain legal and proper questions to him propounded by the grand jury, and whereof he has been in .and by said Cole County Circuit Court heretofore lawfully tried and convicted, be and he is hereby sentenced to be imprisoned in the common jail of the county of Cole aforesaid, and in custody of Anton B. Richter, shariff and ex-officio jailer of said county, therein to be held, without bail, for and during such term and period as he the said Robert E. Holliway, shall so continue contumaciously to refuse to answer such questions (unless in the meantime said Cole County Circuit Court shall adjourn) and until he, the' said Robert E. Holliway, shall give such evidence.

Let the writ be denied and the petitioner remanded to the custody of respondent Anton B. Richter, as sheriff and ex-officio jailer of Cole County aforesaid, pursuant to the above judgment of this court.

All concur.