36 Mo. 543 | Mo. | 1865
delivered the opinion of the court.
This was an action of trespass under the “ Act concerning trespasses,” (R. C. 1855, p. 1552,) for cutting down trees on the plaintiff’s land. At first the defendant pleaded not guilty, and gave notice of a special defence, founded on the “ Act to incorporate the Hannibal and St. Joseph Railroad Company,” approved Feb. 16,1847, which gave the company power to take wood from lands adjoining the railroad for purposes of construction. Afterwards this answer was with
The act of Feb. 28,1853, amending “An act to incorporate the Hannibal and St. Joseph Railroad Company,” (R.R. Laws, p. 15,) gave the company “power by themselves or agents to enter and take from any land in the neighborhood of the line of their railroad, earth, gravel, stone, wood, or other materials, necessary for the construction and operation of said road” ; and it provided a specific mode of proceeding by which the damages should be ascertained, at the instance of either party, by three impartial and disinterested householders, to be appointed by any justice of the peace, with an appeal to the county court. Under this act, the defendant had lawful power to do all that was proved to have been done, and an ample and convenient remedy was provided for making compensation for any injury that the plaintiff had sustained. It is well settled that when the Legislature authorizes an act of this kind, the necessary and natural con
The statute proceeding is a simple mode of ascertaining the amount of damages which is to be paid to the injured party by way of compensation for private property taken for public use, under the law, and it is not to be considered as an assessment of damages as for a wrongful trespass. The “Act concerning trespasses” contemplates voluntary or wilful trespasses only, which are done without lawful right, and it inflicts penalties upon the defendant as a wrongdoer. In this case there was no trespass and no wrongdoer, and this act had no application.
This court having no jurisdiction of the subject of the action, none could be given by any consent or agreement of the parties. An objection to the jurisdiction of the court is not waived'by omitting to take advantage of it on demurrer or by answer, and the exception may be taken on motion, after judgment. (R. C. 1855, p. 1231, § 10 ; Valerine v. Thompson, 3 Seld. 576.) The want of jurisdiction was made sufficiently to appear, and the motion for a new trial should have been granted. As the whole case is disposed of- on this ground alone, it will be unnecessary to notice the other points which have been made.
Judgment reversed and the cause remanded.