Evans v. Haefner
29 Mo. 141
Mo.
1859
Check Treatment
Scott, Judge,-

delivered the opinion of the court.

This was an action of ejectment and trespass qua/re clau-sum fregit, to recover the possession of some land and for damages for entering lands belonging to the plaintiff. The defendants, under a contract with St. Louis and Iron Mountain Railroad Company, built a road connecting Potosi, in Washington county, with the main' stem, not exceeding three or four miles in length. The company had the land, on which the defendants built the, roadz condemned under the provisions of the general railroad act,, approved February 24,1853.

It is now objected to the condemnation that the charter of the St. "Louis and Iron Mountain Railroad Company did not authorize the building of the branch road from Potosi to the main stem ; that the company could not delegate to the defendants the right to construct the branch road; that it was a private enterprise of no public utility, for which private property could not be taken.

*148Waiving tlie inquiry whether these objections are well founded in the law and tlie facts, we will examine whether the propriety of the proceedings taken for the condemnation of the land of the plaintiff can be inquired into in this action. The condition of railroad companies would be a hard one, if they could not be assured, before a road was built, that they might rely with confidence on the validity of the condemnation under which they acted. If the law, under which they proceed, is a valid and binding one, and they conform to its provisions in condemning the land necessary for their purposes, it would be ruinous if the validity of those proceedings could be called in question in a collateral suit. One of the consequences of holding that a party could be held liable as a trespasser or a wrongdoer while acting under a condemnation conformable to the statute, would be that the party complaining of the injury might, in the exercise of his rights of peaceably redressing his own wrongs, enter upon a railway and abate it as a nuisance. (3 Blackf. 5.) A railroad company would never be safe in building a road. After condemning land under a law which authorized it, they would be left to ’ the fluctuating opinions of the courts, and would have no assurance that the steps they had taken would be of any avail in a subsequent action against them. If the construction of railroads is a measure encouraged and promoted by the community as one in which its interests are involved, there would be no policy in leaving companies in this defenceless state. There is no hardship in this on him whose property is condemned for the public use. The legislature can exercise the right of eminent domain, providing just compensation for private property taken or applied to public use. They can make laws providing how this right shall be exercised. If the party to be affected by the exercise of it has notice, he can make all objections to the proceedings of the body discharging this duty. If he fails to make objections, or if his objections are made and oyerruled, on what ground can he recur to those objections in a collateral action ? If, when the proceedings condemning private *149property for public use are reported and confirmed, they do not protect the companies entering on the land taken, of what use are they? In building roads companies should.have an assurance that they are not at the mercy of those whose property may be applied to their use. ' The statute, under which the proceedings were had in. this case, declares that they shall be final and conclusive. In the case of Hamilton v. The Annapolis and Elk Ridge Railroad Company, 1 Mary. Ch. 107, it was held that, the land having been condemned for the use of the road, and the inquisition returned to and duly confirmed by the proper county court, the propriety of the condemnation and use of the property could not be drawn in question in an incidental or collateral proceeding. The law is stated to the same effect in Redfield on Railways, 129, 684.

We see nothing erroneous in the conduct of the court in relation to the payment or deposit of the damages assessed to the plaintiff. The statute provides that the court shall direct to whom the money is to be paid, or in what bank or banking house, and in what manner it shall be deposited by the company. The order made was, that the company deposit with the clerk of this court forthwith', to the credit and on account of the defendants, the said sum of nine hundred and twenty-five dollars, to be paid over to the defendants. This was in effect an order directing the money to be paid to the defendant; and, if he refused to take it, we see no impropriety in its remaining with the ,clerk to be paid when called for. The clerk stated that he still holds the money ready for the plaintiff in this action. His attorney refused to receive the money on his account. Being a party to the proceeding, he knows where his money is, and that he can have it at any time. Under such circumstances, after doing all that could be done, it is now very unreasonable that the point should be made that the order did not justify the court in directing the jury that it was a full justification to the company to enter upon the land condemned.

The court instructed the jury that the title vested in the *150company conferred on it the right to all mineral, &c., found within the line of said roadway. The land over which the road passed was mineral land. That fact, we suppose, was known to the commissioners, and they would regard it in estimating the damages assessed for the plaintiff. The mineral found below the bed of the road, and whose excavation is not necessary for the construction of it, would remain with the owner of the soil; but, as to the portion that must be removed in order to build the road, we do not see on what ground the owner of the soil can claim it, more than the earth or rock that is removed. "We do not see on what principle the ownership of the excavations can be made to depend on the question whether they are necessary or not in the building of the road. "When 'the land is condemned, it is condemned to the bed of the road, and the property of that which is condemned vests, when the damages are paid or secured, without regard to the inquiry whether or not it will be necessary in the construction of the road. "Whether the instruction of the court was right or wrong, as it aptpears that no mineral was taken from beneath the level of the road, the plaintiff was not injured by it. If the excavations belong to the owner of the soil, would it not be right to place them on his ground, and how then would he complain that his land had been injured by placing them upon it? Are not railroad companies sued for such injuries ? Redfield says, “ It is certain in this country, upon principle, that a railroad company, by virtue of their compulsory powers in taking lands, could acquire no absolute fee simple, but only the right to use the land for their purposes; and it is very questionable whether a railway, in such case, is entitled to the herbage growing upon .the land, or to cultivate the same, or to dig for stone or minerals in the land beyond what is necessary for their purposes in construction. In England, the statutes give all such minerals to the former owner of the land, except such as are necessary in the construction of the road, unless the same shall have been expressly purchased; and in this country, no doubt the same construction would *151be adopted in regard to all land taken by compulsory proceedings.”

We do not see how the constitutionality of the general railroad law of February 24, 1853, ;can arise in this or any other case, when it is admitted that there may be roads to which its provisions may be constitutionally applied. It is conceded in the argument that the act would be constitutional when applied to the Pacific railway, because that road is for the general benefit, and private property may be taken for its use. But it is maintained that the same act is unconstitutional when applied to the road the subject of this controversy,' because it is a mere private enterprise in which the public have no concern, and therefore private property can not be taken for its use. If the road was of the character attributed to it, and lands should be condemned for it, that would not show that the general jaw is unconstitutional, but only that its provisions had been perverted to a case to which they could not be constitutionally applied. The constitutionality of a law depends upon the terms in which it is written. If there is a state of circumstances to which it may be applicable consistently with the constitution, it is no argument against its validity that it may be perverted to cases not warranted by the constitution. If the law is applied to such a case, that does not make it invalid, but only shows that it has been misconstrued and perverted to a case to which, by the constitution, it was not applicable. The constitutional validity of a law can not depend on extrinsic facts or circumstances, but those facts and pircumstances may determine the constitutionality of its application to any particular case. It follows, then, that whether the general railroad law could be made applicable for the condemnation of the road, the subject of this controversy, was a question involved in the proceedings of the commissioners ; and as those proceedings stand confirmed, it, no more than any other question involved in them, can be made a subject of investigation in this controversy, they being final and conclusive. Judgment affirmed;

the other judges concur.