70 Iowa 424 | Iowa | 1886
I. The undisputed facts in the case necessary to be considered in order to determine the case are these:
II. In view of these facts, it is our opinion that plaintiff is entitled to recover the costs against the Central Iowa Kailway Company, and to enforce the judgment therefor as a lien against the railroad, or any part thereof. After the assessments of damages by the sheriff’s jury, the railroad company was authorized to deposit with the sheriff the amount thereof, and enter upon the land. It was authorized to appeal, but, in case it did so, the money deposited was to be retained by the sheriff until the case should be disposed of on the appeal. Code, §§ 1254, 1255. Upon the appeal, the assessment of the sheriff’s jury may be increased or diminished. If diminished, the sheriff shall pay to the landowner only the amount assessed upon the appeal; if increased, he shall remove the railroad company, and those acting under it, from the land. Code, §§ 1258, 1259. No judgment is to be rendered for the damages assessed on the appeal. The obvious reason for this provision is that the damages are required to be deposited with the sheriff before entry upon the land, and, if the damages are increased, the judgment is to be enforced by turning the company out of possession of the land; but judgment for costs is to be rendered. Code, § 1257.
While the Central Iowa Kailway Company was not a party to the condemnation proceedings or appeals, yet, upon its acquisition of the railroad, the law charges it with notice thereof, for they were then pending. The appeals were prosecuted for the benefit of that company, even if the money had been deposited by the Chicago, Burlington & Pacific Kail-way Company, for the reason that a judgment could have been recovered for a sum in excess of the assessment by the sheriff’s jury, which it would have been required to pay, or have been dispossessed of the land. The Iowa Central Kailway Company
But the Central Iowa Railway Company acquired no absolute estate in the lands of plaintiff condemned by the sheriff’s jury until the judgment upon the appeals had been rendered, for it was liable to be ousted therefrom, as we have above shown. Now, as that company had notice of the pen-dency of the appeal, and had an interest therein, and did not acquire an absolute right in plaintiff’s lands until the appeals were disposed of, and as it must be presumed that the appeals were prosecuted in its interest by the other company, which is insolvent, and now defunct, the plainest equity demands that it should take the place of the Chicago, Burlington & Pacific Railway Company, and respond to all its liabilities incurred in the apjteal. The liability for the costs was incurred in the acquisition of plaintiff’s lands. They are a part of the purchase price, as it were, of these lands; being added in the damages, both together constituting the price thereof which the Chicago, Burlington & Pacific Railway Company was required to pay. The law assesses the costs as a part of the debt of that company for the lands. Upon the clearest principles of justice and equity, and in accord with the analogies of remedies often enforced in courts of equity, the Central Iowa Railway Company ought to be held liable for the judgment for costs, which should be declared a lien upon the land taken from plaintiff in the condemnation proceedings.
III. It is urged that plaintiff has not paid all the costs taxed against the defendant. He surely can recover for the
IY. Defendant’s counsel insist that there was no judgment for costs in the circuit court. In each case the record
We have considered with attention all positions argued by defendant’s counsel, and the authorities cited by them, but they are not in conflict with the broad and solid equity upon which we base our conclusions.
The decree of the circuit court will be affirmed, except so far as it must be modified in order to comply with our conclusions and order set out in point three of this opinion.
AFFIRMED.