— This is an appeal in a proceeding by a railroad company, under the provisions of article 7, chapter 12, Revised Statutes 1899, to condemn a strip of land for its use through a number of tracts or parcels of land in Ripley county; one of which belonged to C. E. McKinney, the respondent herein, who, upon the coming in of the report of the commissioners assessing his damages at one hundred dollars, after notice, in due time, .filed his written exceptions thereto, in which he asked that the report of the commissioners be set aside, and that his damages be assessed by a jury. Thereupon, in due course, a jury, was impaneled, before whom, the issues were tried and a verdict in his favor rendered, assessing his damages at seven hundred and fifty dollars, from which judgment, in due course, this appeal was taken.
*6611. By section 1268 of said article 7, it is provided that: “The report of said commissioners may he reviewed by the court in which the proceedings are had, on written exceptions, filed by either party in the clerk’s office, within ten days after the service of the notice aforesaid; and the court shall make such order therein as right and justice may require, and may order a new appraisement, upon good cause shown.”
On the record no formal order appears setting aside the report of the commissioners, and this is assigned as error. There is nothing in this assignment. On filing his exceptions the respondent had the constitutional right to have his damages assessed by a jury, and the court had no discretion in the matter. The calling a jury to assess his damages was such order “as right and justice required.” [Art. 12 sec. 4, Const. 1875; Railroad v. McGrew, 113 Mo. 390; Railroad v. Story, 96 Mo. 611.]
2. It is next contended that the court erred in permitting witnesses for respondent to give their opinion as to the amount of the damages to respondent’s land in answer to the following questions:
“Q. I will ask you, taking into consideration the quantity of land taken for the right of way, which is agreed to he six and one-half acres, the size, shape and disfigurement, if any, of the tracts into which the farm is divided, as its market value may he affected by that division into those sizes, shapes and disfigurements, and the cuts and fills on that tract, if any, and the difficulties, if any, of getting from one side to another by going to a railroad crossing to get over from one side to another, and excluding all elements of damage, if any, that may arise from or he due to smoke or noise from trains passing over the road, or the ringing of hells or sounding of whistles, and scaring, frightening or killing of animals while on the right of way, or danger to the person of the owner, agent, servant, by the crossing of said road; what, in your judgment, would he the depre*662ciation in the market value of the farm on account of six and one-half acres being taken for the right of way, and other inconveniences, taking into consideration all that I have mentioned and excluding all that I have mentioned ?”
It is settled law in this State that persons shown to be acquainted with the value or damages to property may, in connection with the facts, state their opinion as to such value or damages. [Railroad v. Calkins, 90 Mo. 538-543; Railroad v. De Lissa, 103 Mo. 125-130; Railroad v. St. L. Union Stock Yards, 120 Mo. 541-550; Railroad v. Donovan, 149 Mo. 93-102; Railroad v. Shoemaker, 160 Mo. 425.]
The question in this case is but a paraphrase adapted to the facts thereof, of the question in the case last cited, in which it was held that the question correctly stated the basis for an opinion of the witness as to the amount of the damages. There, is nothing in this assignment.
3. The third and last contention of appellant is, that the instructions given for respondent are erroneous in that they assume that his property had been damaged. This is a hypercriticism of the instruction and seems to be based upon the fact that the words, “if any, ’ ’ used in the first instruction, were not thereafter continuously repeated in subsequent instructions. The instructions followed approved precedents— no specific error in them has been pointed out, and there is nothing in this contention.
Finding no error, the judgment of the circuit court will be affirmed.
All concur, except that Marshall, J., does not concur in paragraph 1.