87 Ky. 267 | Ky. Ct. App. | 1888
delivered the ornrroir on the court.
This proceeding was had on the application of the appellant, the Covington Short-Route Transfer Railway Company, asking for the appointment of commissioners to assess the damages resulting from the condemnation of appellee’s house and lot, in the city of Covington, for railway purposes.
The commissioners appointed proceeded to value the property under the act approved April 11, 1882, and assessed the damages at seven thousand seven hundred and fifty dollars, and each party excepting to their award, a jury was empaneled in the county corirt and a verdict rendered in favor of the appellee for eight thousand dollars.
The case was then carried by an appeal to the circuit court, and a verdict rendered for eight thousand two hundred and fifty dollars, and is now in this court on an appeal from the circuit court.
The seventh section of the act is as follows: “Upon the confirmation of the report of the commissioners by the county court, or the amount of damages by said court as herein provided, and the payment or tender to the owners of the amount due as shown by the report of the commissioners when confirmed, or as shown by the judgment of the county court when the damages are assessed by said court, and all costs adjudged to the owner, the railroad company shall be entitled to take possession of said land or material, and to use and control the same for the purpose for which it -was condemned as fully as if the title had been conveyed to it. But when an appeal shall be taken from the judgment of the county court by the railroad company, it shall not be entitled to take possession of the land or material condemned, unless it shall execute to the owner a bond with surety, to be approved by the county court, in double the amount of the damages assessed, conditioned to perform the judgment of said court, and of any court to which the case may thereafter be appealed, which bond shall be filed with the papers in the case.” (Gfeneral Statutes, chapter 18, 1887.)
This seventh section gives the right of entry upon the payment or tender of the money to the owner when the company proposes to abide by the judgment, and to afford the company a remedy by an
It is essential, in taking private property for public use, that compensation should first be made. It is, says Mr. Mills, “in the nature of a compulsory purchase of the property of a citizen for the purpose of applying it to a public use,”-and whether the corporation desiring that use can have the property valued, and then take it from the possession of the owner by executing a bond that may have the effect to reduce the value, and at the same time compelling the owner' to risk the solvency of the parties to the obligation, is the question presented here.
In considering this question no reported case is to be found in this State where a private corporation has appropriated the property of the citizen to its use upon the execution of a bond containing a mere promise to pay the damages sustained at the end of a litigation by which the value of the property is to be determined. This court has held, in more than one case where property was condemned for the benefit of a municipality or for county purposes, that if the owner was made secure by the execution of a bond with surety, it was such compensation as was contemplated by the Constitution. In the case of Cash
There is a distinction recognized by many authorities between a taking by a municipal subdivision of the State and a taking by a private corporation. The reason given is, that in the one case the owner may resort to the public treasury of the State or the municipal government for his money, with the power in the State, if the treasury should be empty, to coerce by taxation a sum sufficient to make the compensation ; while as to a private corporation, the owner is compelled to risk the solvency of the parties to the bond, with no other remedy for the value of his property taken than a suit at law in the event of their failure to pay. This early doctrine, “that compensation need not precede the taking,” was established, says Mr. Mills, in his work on Eminent Domain, § 124, for the reason that the property was taken mainly for the State, and the payment to be made out of the public treasury.
Whether or not this reason controlled the decisions of this court in the earlier cases is not now necessary to inquire, for it is manifest that a mere security in the bond of a corporation can not be regarded as just compensation previously made the owner within the spirit and meaning of the Bill of Rights. That the citizen would be more likely to receive compensation
Viewed in any aspect of the case, whether taken by the sovereign or by the corporation under sovereign authority, it is a destruction of the constitutional guaranty for the protection of private property to appropriate it, without the consent of the owner, to a public use without first making compensation to him in money for the value of the property of which he has been deprived. We are aware that in the condemnation of private property for the construction of railroads, serious injury must often result to the public by a delay in the progress of the work until the question of compensation is determined by litigation. The necessity for an immediate entry in
In this case the homestead of the owner had been condemned, and the appellant, not satisfied with the assessment of damages, is permitted by the act of 1882 to take possession of his dwelling, his business house and the lot upon which they stand, with no other compensation than the bond of the company, that may or may not be paid when the litigation terminates. He may be compelled to sue on the” obligation to recover the compensation that the Constitution in express terms provides he shall have before his property is taken.
If the Bill of Rights provided that the citizen should be made secure before his property could be appropriated to public use, there might be some reason in requiring him to look to a bond of indemnity for his compensation, and the earlier cases seem to have proceeded on the idea that this security was what had been guaranteed to the citizen and nothing more, when it is plain, we think, from the language used in that instrument, that just compensation previously made means the payment in money to the
Where the damages are assessed under the act of 1882, the money may be paid or tendered to the owner, and if he declines to receive it, his own act entitles the company to enter and appropriate the property condemned for the public use. “The Legislature might as well declare a bond to be good compensation at the end of the condemnation proceedings as at the beginning. Hence, possession cannot'be given simply on an offer to give, or on the giving of a bond.” (Mills on Eminent Domain, § 136, 2d ed.)
Mr. Cooley, in his work on Constitutional Limitations, says: “It is not competent to deprive him (the citizen) of his property and turn him over to an action at law, against a corporation which may or may not prove responsible, and to a judgment of uncertain efficacy.” (Const. Lim., 562.)
This court, in the case of Arnold v. The Covington Bridge Company, reported in 1 Duv., 372, speaking through Chief Justice Robertson, said: “But the Constitution constructively requires an impartial assessment by a judicial process of the actual value in money, and full payment, before private property shall be appropriated to public use.” Authorities might be given sustaining a like construction of constitutional provisions similar to ours, and to require the citizen to look to a mere written promise to pay the compensation to which he is entitled, is, in our opinion, a perversion of the plain meaning of the Bill of Rights.
The appellee owned no property adjacent to the property condemned, and the damages he sustained, if any, in addition to the value of the property taken, was the inconvenience and loss resulting from his being deprived of his home and place of business, and to say that no such facts should enter into the estimate of value would be unjust to the owner, and place him in a condition where he had sustained actual injury other than the mere market value of his property, without affording him any remedy for the wrong. This character of case is unlike an appropriation of a strip of land where the mere market value is the criterion, the taking working no other injury.
Here the owner and his family have been deprived of their homestead, and his place of business taken from him, and to allow him simply what such property is worth, or would bring in the market, would not compensate him for the injury sustained.
• The witnesses for the railway company fixed the market value at from five to seven thousand dollars. Those for the appellee fixed the market value as high as nine thousand three hundred and sixty-one dollars. The jury returned a verdict of eight thousand two hundred dollars. The appellee was allowed to show that, in addition to the market value proven, he had sustained other loss, in having to abandon his place of 'business, to the extent of two or three thousand dollars. We perceive no objection to this testimony. The location of appellee’s business house, its convenience for his labor and those who patronized him, were facts tending to enhance the value of the property to the appellant, and of which he ought not to have been deprived.
There have been in effect three different verdicts in this case fixing the value of appellee’s property. The commissioners fixed the value at seven thousand seven hundred and fifty dollars, the jury in the county court at eight thousand dollars, and the jury in the circuit court at eight thousand two hundred dollars. After so many findings on the one' issue, with such a small
The ten per cent, damages will be denied, as the appellee has, by Iris supersedeas, stayed the writ and enjoyed the use of the premises, for the value of which the judgment was rendered. No reversal is asked on the cross-appeal.