28 S.D. 1 | S.D. | 1911
Lead Opinion
This is an appeal by the defendants from a judgment entered in favor of the plaintiff and from the order denying a new trial.
It is alleged in the plaintiff’s complaint that ever since the 2d
Plaintiff further alleges that the said defendant the Cleveland Trust Company is a corporation duly organized and existing under and by virtue of the laws of the state of Ohio, and as such corporation is a trustee for all the bondholders of the several bonds issued by said railway company, aggregating about $1,000,000, secured by a p'retended mortgage upon all of the property of .the said railway company for the purpose of constructing and equipping the said railroad; that the said trust company claims a lien, interest, or estate in said railway company and its property as security for the bonds mentioned, but plaintiff alleges that whatever interest, lien, or estate said trust company may have the same is subject to and inferior to the claim of .plaintiff herein; that during the years 1891-92, the said railway company and its predeces
Plaintiff further praj-s that upon the final hearing of this action judgment may be rendered in favor of the plaintiff and against the defendant railway company and its receiver for the said sum of $500, and that the judgment of this plaintiff may he declared to be a first lien on said railroad and its appurtenances, prior and superior to the claims of said defendants, and each of them.
To this complaint the trust company separately answered, and denied all the allegations of the complaint, except such as were thereinafter specifically admitted; admits that the railway company is a corporation organized under the laws of the state of South Dakota, and the owner of the railroad described in plaintiff's .complaint; that C. O. Bailey is receiver of said railroad, and
The defendant then pleads the six and ten year statutes of limitations as a defense to the action. It is then alleged in the answer that the defendant corporation was chartered as such on the 15th day of April,'1904, and has since been such corporation; that the Dakota, Wyoming & Missouri River Railway Company was, prior to the year 1890, duly organized and existing as a railroad corporation under the laws of the state of South Dakota, and continued to be such corporation for many ■ years thereafter; that said railroad was graded and constructed over and across the land described in the complaint, with the consent and acquiescence of the plaintiff, in the year 1891, axrd more than 16 years prior to the comxncncement of this action, and that said i-ailroad was for many years thereafter maintained and operated by said Dakota, Wyoming & Missouri River Railwaji- Coxnpany; that thereafter, and before this action was commenced, the defendant railway company succeeded to and became the owner of all the right, title, and interest formerly owned and possessed by the former railway coxnpany, and that said defendant railway coxnpany relied upon said plaintiff's long-continued consent to, and acquiescexx.ee in, the claim of said former company to have a valid right of way, over and acx'oss said land, and after its purchase of said railroad
It is then alleged in the answer that the plaintiff claims some estate or interest in and to said parcel of land, but that he has not any estate, right, title, or interest whatsoever in and to the same, or any part thereof, and demands judgment that its title to :he said premises he quieted.
The defendant Missouri River & Northwestern Railway company and Charles O. Bailey also filed separate answers, and pleaded substantially the defenses set up in the answer of the trust company. To these answers the plaintiff replied, denying many of the allegations therein contained, and denied that the said claim of the defendant is prior ^and superior to the claim of plaintiff.
This action was commenced in July, 1908, and on the 9th day of March, 1909, came on for trial before the court, and again came on for trial before the court and a jury on the 4th day of November, 1909. The jury, returned a verdict for $485, and the court made its findings and conclusions of law, in which the court finds, in substance, the facts as alleged in the plaintiffs complaint, and, among others, that the plaintiff has a first lien upon the said railroad as described in the complaint, together with its right of way, appurtenances, and franchises, prior and superior to the claims and demands of the defendants, and each of them, for the said sum of $485, found by the jury; that the defendants the Cleveland
And the court concludes that the plaintiff is entitled to a judgment against the defendant railway company and Charles O. Bailey as receiver, for the said sum of $485 and costs, and that said judgment should be declared to be a first lien upon said railroad right of way, appurtenances, and franchises, prior and superior to the interest, lien or claim of each and all of the defendants herein, and all persons claiming through them, and that the said premises be adjudged to be sold in the manner provided by law, and out of the proceeds of sale the plaintiff be paid the said sum recovered, with interest and accrued costs, and judgment was-1 thereupon entered accordingly.
Numerous errors are assigned, but for convenience the counsel have grouped them under the following heads: (1) Those to
We are inclined to take the view that the respondent is right in his contention. It is provided by section 13, art. 6, of our state Constitution, that “Private property shall not be taken for public use, or damaged, without just compensation as determined by a jury, which shall be paid as soon as it can be ascertained and before possession is taken. * * *” This provision of the Constitution was designed, and its effect is, to prevent the taking of private property for public use, until the damages occasioned thereby shall be ascertained and paid to the owner of the property, and a party cannot be deprived of that protection by statutes of limitation within the period of prescription for the recovery, of property, by ejectment, or, as held by the 'Supreme Court of Pennsylvania, until the law presumes that the compensation has been paid to the owner, which is at the expiration of 20 years. And it has been, recently held by the Sopreme Court of Nebraska that a statute imposing limitation is unconstitutional. Kime v. Cass County, 71 Neb. 67. 99 N. W. 546, 101 N. W. 2. And the same view was taken by the Supreme Court of Mississippi in Levee Com’rs v. Dancy, 65 Miss. 335, 3 South, 568.
Mr. Lewis, in his work on Eminent Domain- (3d Ed.) § 967, under the head of limitations, when property is appropriated with out complying with the law, says: “We have seen that where property is entered upon and appropriated to public use, without complying with the law, the owner may waive the tort and sue
And in Pennsylvania, where the Constitution requires compensation to be first made or secured, it is held that the right to compensation is not barred by any length of time, but that after 20 years there is a presumption of payment, as in cases of all obligations for the payment of money, which must be overcome by proof. Carter v. Ridge Turnpike Co., 208 Pa. 565, 57 Atl. 988; Stauffer v. East Stroudsburg, 215 Pa. 143, 64 Atl. 411; Connellsville Gas Coal Co. v. Baltimore, etc., R. R. Co., 216 Pa. 309, 65 Atl. 669; Keller v. H. P. R. R. Co., 151 Pa. 67, 25 Atl. 84.
In the case of Carter v. Ridge Turnpike Co., supra, the learned Supreme Court of Pennsylvania, in discussing the question of limitations in such an action says: “If the' land was taken under the right of eminent domain, as contended by appellants, and they are, under the authority of Oliver v. Pittsburg, etc., Railway Co., 131 Pa. 408, 19 Atl. 47; the proper parties to bring this suit, there can be no question about their right to recover the damages sustained, if the same have not been paid, for no statute of limitations can" bar their constitutional right to actual compensation for the land so taken from their ancestor” — citing a number of Pennsylvania cases.
The Court of Appeals of New York, in the matter of Clark v. Water Commissioners, 148 N. Y. 1, 42 N. E. 414, takes the same view, and holds that their statute of limitations does not apply to that class of cases. It was contended in that case that the 6-year statute of limitations was applicable, and, if not, then the 10-year statute of limitations was applicable. The court, in discussing the last question, says: “The only other section which might be applicable is section 388, which provides that an 'action, the limitation of which is not specially prescribed in this or the
It is contended by the appellant that by this clause in the opinion the court held that the io-year statute of limitations was applicable, but we do not so understand the language used as being a decision upon that point. It will be noticed that the language is, ‘’the onfy other section which might be applicable,” but they dispose of the question b}'- stating that the io years had not expired in that case; and hence, in effect, it was not necessary to pass upon that question.
While there seems to be some conflict in the decisions, we are of the opinion that the views expressed by the Supreme Courts of Pennsylvania, New Jersey, New York, Nebraska, Mississippi, and the learned author on the subject of Eminent Domain, before referred to, state the true and correct rule, for as was said by the Supreme Court of Nebraska, in Kime v. Cass County, supra, if it was competent for the Legislature to make any provisions limiting the time for commencing an action by the owner, it could make such provisions as would effectually abrogate or fritter away the guaranty of the Constitution. The trial court was, therefore, clearly right in holding- that plaintiff’s action was not barred by the statute of limitations, as the prescriptive period of 20 years had not elapsed.
Air. Lewis, in his work before referred to, in discussing the subject, in section 885, says: ‘‘Where it is held that the title or right to possession may vest before the payment of damages, such title or right is subject to the obligation of making just compensation, which is in the nature of a vendor’s lien. A proceeding in equity for the purpose of enforcing this lien is therefore a proper remedy. * * * But in some cases, instead of decreeing a regular foreclosure of the lien, the courts enjoin the use of the land until payment is made. I11 Ohio it is held that, where the property constitutes a section of a railroad right of way, the decree should be for the sale of the entire road, with its franchises, and not of the property with respect to which the lien exists.”
In section 887 the learned author further says: “Under the authorities referred to in the last section and the principles which they sustain, it follows that the owner of property which has been taken for public use,'and not paid for, may have the same remedies to enforce his rights against those claiming under the party condemning as against such party himself. * * * The first company has taken possession of private property for a public use, and is under an obligation to make just compensation to the owner.
In the last case cited, the Supreme Court of Ohio, discussing very fully the rights of an owner of property taken for public use, who institutes an action to 'secure the payment for his property, and in which case a decree for the sale of the whole line of the road to s'atisfy the plaintiff’s lien was adjudged, says: “And this is the only mode in which the rights and interests of other parties, either as owners or lienholders upon the road, can be protected, and their property or security saved from absolute destruction.”
As the plaintiff remained the owner of the property until the proceedings taken to enforce his claim for the value of the same, it is quite clear he is entitled to the value of the land at the time he takes proceedings 'to enforce payment for- the same. If the property has advanced in value during the time that it has been illegally in the possession of the railway compan)', the plaintiff is entitled to the benefit of that advance, and not the -party who has illegally held possession of the same.
Finding no error in the record, the judgment of the court below and order denying a new trial are affirmed.
Concurrence Opinion
I concur in the views- expressed by Justice CORSON in this case, but desire to refer briefly to the proposition last discussed in ihe decision.
It seems to me this action in legal effect should be viewed as a condemnation proceeding, which the law permits the property owner to initiate because the corporation has not done so. It is not an action for damages for trespass, nor an action for the value of land wrongfully taken and appropriated by the defendant company. It is true that, as to the public and its duties as a carrier, the company may have assumed obligations which might estop it from denying its ownership of plaintiff’s land to the. injury of the public,- and it is equally true that on grounds of public inconvenience the property owner may n-ot resort to ejectment or injunctional relief, when he has been guilty of laches in seeking these remedies. But the public has no interest in the amount of
In such an action as this, therefore, the compensation to be paid an owner of property should be determined under precisely the same rule as though the corporation itself had begun a condemnation preceeding at the date of the beginning of this action. Such a rule of compensation would be equally just to both corporation and property owner, because at all times it was within the power of either to begin an action, and thus fix the date at which the value of the property, as a measure of damages, should be estimated by the jury, and neither could justly complain of injury by reason of enhancement or depreciation to value of property. It would seem that any other view may easily result in confusion of rights and remedies, and an abandonment of fundamental principles of law which should govern the rights of both corporation and the owner of property.
While I agree, in the main, with the conclusions reached by my learned colleague, as such conclusions are set forth in the foregoing opinion, yet I am of the opinion that the learned trial court was in error upon at least one proposition, and that such error necessitates a reversal of the judgment of such court.
Various questions involved in this case, while new to the courts of this state, have been before the federal courts and the courts of many of our sister states in cases almost without num
The right of eminent domain is one antedating the governments of this country; it is a right inherent in the sovereign power, and could be exercised by such sovereign power, were there no constitutional provisions in relation thereto; the only need and the object of the constitutional provisions is to limit the exercise of the right that it may not be abused; it is the right of the sovereign power to condemn and take for public use the property of a private individual; it is a right inherent in society, and founded upon the principle that the rights of society as a whole are superior to those of an individual. This power to take property under the right of eminent domain, under our Constitution, may be delegated to persons and corporations. Under such delegated authority, property can only be taken for purposes recognized as essential to the public welfare. From the very nature of this right and the reasons upon which it is based, the public is an interested party in every taking or proceeding to take property under such right and the public’s rights and interests should at all times be kept in mind in proceedings involving the’right of eminent domain. Justice is guaranteed to the owner of property taken, by that provision of our Constitution providing that private property cannot be taken “with
Why should not the owner of land that has been taken without compensation be allowed to say to one who took his land under circumstances such as appear in this case: “You had a right, for the public welfare, to take my land for the use you have put it to; you have taken my land and put it to such use; the land is still mine; I recognize the right of the public to have my land so used; I do not care to enjoin such use, nor to eject you from the land, and it might be inequitable to do so; you should have taken steps to ascertain what recompense I was entitled to for the taking of my property for this use; you failed to • do. so ; I was damaged by your wrongful entry and use of my premises, the amount which a jury would have allowed me, at the time of your entry, as recompense for the taking of my lands for such use; you have acquired neither the title nor the right to use my lands; I should be allowed-the right to have the recompense I am entitled to determined by a jury, and you should pay the same, as the interest of the public require that you use my premises permanently; when you occupied and used these premises, you estopped yourself from saying that you did not take same under right of' eminent domain, and intended to recompense me therefor ; I hold the title to this land as security for the payment of such recompense, as I am entitled to under the Constitution; you have so connected this right of way w-ith the remainder of the right of way used by you that the rights of the public would be harmed by the separate sale thereof; therefore, in order to protect me and at the same time protect the rights of the public — which public rights lie at the very foundation of any rights
And why should not such owner be entitled to say to a purchaser from the party who took said land, and to a person claiming under such purchaser: “The records show that your predecessor had never acquired a right to these premises or their use, by purchase or condemnation.; you were .therefore not an innocent purchaser; and, when you took said premises and continued to use the same for right of way, you took them subject to the rights which I had in same.”
I would call particular attention to the complaint herein, and would ask if, under the same, the plaintiff’s relief sought is not strictlv in accord with the thoughts expressed in the foregoing; queries. What is the nature of the action? The complaint sets forth facts showing that this property was originally taken by, and has at all times been, used by corporations and persons authorized, under the facts pleaded, to have condemned and taken the property under right of eminent domain;-that the property has been used for purposes authorizing such condemnation and taking;: that there was no such condemnation; and that plaintiff has never been recompensed therefor. The complaint asks that the defendants be required to commence proceedings t'o have the recompense plaintiff is entitled to ascertained by a .jury, and that the judgment for such recompense, when found, be a first lien on the railroad and its appurtenances. The theory upon which this complaint was drawn was clearly not that of bringing anyone of the actions that would lie against an ordinary trespasser, but was exactly in line with the special rights and remedies suggested above.
I think it clear in reason that such an action will lie, and the authorities are numerous in support of the principles underlying same. The nature of this action seems to be similar to that of Stauffer v. East Stroudsburg Borough, 215 Pa. 143, 64 Atl. 411, in which the court said: “The plaintiff proceeded under his stat
But it seems to me clear that the measure of damages in such an action must be the recompense to which the owner would have been entitled at the time of the original taking- of the property, together with interest thereon since then. Furthermore this is the only equitable measure of damages in all cases. My colleague has cited several cases in support of the conclusion that respondent was entitled to the value of the land at time this suit was brought, or at time of the trial thereof. With the possible exception of the Arkansas case, there is not one of these cases that is in any wise in point. The case in 61 Ill. 115 holds that, where a law was passed authorizing the appropriation of certain described lands for public purposes the value at time of actual appropriation, and not at date law was passed, was the measure of damages. In 91 Ill. 49, it was held that, where a petition for condemnation had been filed, the date of such petition, and not the date of trial of action, was the date at which value of property
“Had they been instituted prior to, qr upon defendant’s taking the possession of the land, no different right would have been acquired by them than they obtain in the present action. In each case the measure of plaintiff is damages'is the same, namely, the value of the land, without regard to- benefits resulting from the improvement. Plaintiff, had the damage been assessed upon the occupancy of the land, would have received no compensation for its prospective uses, other than as these would enter into the estimate of • its value. The same matters now will determine the value that it would have then. It will be seen, in view of these considerations that the value of the ' land at the time of the ap*24 propriation, with interest upon the sum assessed from that date until judgment in this case, is the just measure of plaintiff’s damages. This conclusion is supported by the further considerations that the remedy, by the same proceeding defendants have instituted, has been within plaintiff’s reach all the time since the occupation of the land by the defendants, and that a different rule of damages claimed by plaintiff, namely, the present value of the land, would, in case of the depreciation of the property after the appropriation, work manifest injustice to the landowner.”
As stated before, this is not an action in ejectment, nor an action to recover damages for the unlawful occupation and detention of the real property, but an action to recover for the wrongful appropriation thereof. As a result of this action, the title to the land will be vested in the defendant railway company. The action is very analagous to an action brought to recover damages for the conversion of personal property, and to my mind no better rule for measure of damages could be laid down than that prescribed by section 2315, Revised Civil Code, in case the injured party does not proceed with diligence, to wit, the value of the property at the time of the appropriation, with interest from that time.