Dietrich v. Murdock

42 Mo. 279 | Mo. | 1868

Eagg, Judge,

delivered the opinion of the court.

The case presented by the record shows the following state of facts : The suit was instituted by the defendant in error, in the Circuit Court for St. Louis county, for the possession of a quantity of railroad iron claimed by him in pursuance of a purchase of the same from the Callaway Mining and Manufacturing Company. This iron constituted a part of the track of said company’s road, laid upon the land of Kowns, one of the plaintiffs in error. In 1859 these rails were taken from the road-bed by Xowns, and shipped to Murdoch & Dickson, at the city of St. Louiá, to he sold by them for his benefit. This company, being authorized by the terms of its charter to build a railroad from its coal bank in Callaway county to the Missouri river at or near Cote Sans Dessein, proceeded, in the spring of 1851, to acquire the right of way for that purpose. A jury consisting of six men, as directed by the act of incorporation, was summoned by the sheriff of that county, and, with the county surveyor, proceeded to locate the line of the road and assess the damages to the lands upon which' it was to be constructed. A certificate of their proceedings was filed in the office of the recorder of deeds for the county, and a certified copy of the same was offered in evidence at the trial on the part of the plaintiff.

The paper being admitted against the objections of the defendants below, presents the first question to be passed upon here.

The objections do not appear to have any reference to the competency of the evidence, but rather go to the sufficiency of the statements to prove that the jury proceeded to discharge its duties in the manner required by the charter. There being no objections to its competency, the court committed no error in permitting it to be read. This is all that need be said upon that point. The next objection on the part of the plaintiffs in error is the refusal of the court to give the following instruction: “The law is declared to be that the proceedings of the jury convened to condemn the road-bed and depot of the Callaway Mining and Manufacturing Company do not appear to have been in accordance with the charter, and that the same are inoperative to divest the title of any owner to the said road-bed.”

The Legislature, in the exercise of its discretion in delegating to this company the right of eminent domain, evidently proceeded upon the idea that the public interest was to some extent at least to be subserved by its creation. What the precise degree of its usefulness to the public might be, is not, in our view of the case, necessary to be determined. We think that the courts of the country ought not to interfere with the exercise of this discretion, except in those oases where it is manifest that private interests alone are to be promoted, and private rights violated to the extent of taking the property of 'one individual and transferring it to another. The sixth section of the act under which this company claimed its corporate existence declares that “said company shall have the exclusive power to acquire, own, and employ steam power, or animal power, locomotives, cars, and carriages necessary for the transportation of passengers, coal, and every description of personal property on said road for themselves and other persons.’* Whether the private interests of this company were such as to require the construction of this road, or constituted the main reason for the act of incorporation, with the' power conferred by it, is not material. It is enough that, by the terms of the law, it is made a public corporation for the use and benefit of that particular section of the State. The public had a right to demand that the means of transportation, both for passengers and freight, commensurate with its wants, should be provided by the company. Any failure of its duty to the public in this particular, and to transport passengers and freight when offered for that purpose, would have subjected the company to an action for damages. It must be assumed, then, that the grant of authority to the company to condemn the land necessary for a road-bed was a rightful exercise of legislative discretion. We do not consider it to be necessary in this case to go further into aji examination of the questions raised on the part of the counsel for plaintiffs in error. We pass by the question as to whether the regularity of the proceedings of the jury can be made the subject of a collateral investigation.

It might be admitted, for the sake of the argument, that all the irregularities complained of do, in point of fact, exist; still, there is no ground upon which Kowns can rightfully claim to be the owner of the property in question. The condemnation of the ground for the proposed road, and the location of the route, were made in the spring of 1851. The company proceeded to construct and operate the road, which is admitted to have been located upon the':land owned by Kowns. The report of the attempted condemnation of the property, such as it is, was duly filed in the recorder’s office, and this constituted all that was required of the company by its charter. Now, whether these proceedings were sufficient to divest the title of the owner of the land upon which the road was located or not, or whether Kowns.thereby had any notice of an intention on the part of the company to take any portion of his land, is not material. There was no attempt on his part to prevent the execution of the work.

The company was not proceeded against as trespassers, nor in any other form by which his rights might have been asserted and' the authority of the company to proceed with the work inquired into. Here was a period of seven or eight years intervening between the initiatory steps taken for the location and construction of the road and the time at which this property is taken possession of by Kowns, without a word of dissent upon his part, and without any claim to the iron. It must be assumed that the occupation of this land by the company for the purposes to which it was applied was assented to by him. Being thus permitted to occupy the land, the law would protect the company in the enjoyment of any property used in connection with such occupation, and, if compelled to leave the premises by proper proceedings, would permit such property to be removed. (See Desloge et al. v. Pearce et al., 88 Mo. 588, and cases there cited.)

The instruction was properly refused, and the judgment must be affirmed.

The other judges concur.