81 Mo. 126 | Mo. | 1883
This was an action in ejectment, commenced in August, 1880, to recover of defendant a part of the east half of the southwest quarter of section 3, township 27, range 33. The petition is in the ordinary form and the answer a general denial.
Plaintiff read in evidence against defendant’s objections, a patent from the United States, and then evidence tending to show the damage sustained, and that defendant was in possession; and one witness testified, that he, as the agent of the plaintiff, appeared before the commissioners who were appointed to appraise the damages for the right
2. The court instructs the jury, that if they believe' from the evidence, that plaintiff’s land occupied by the defendant, is a part of a long line of railroad, operated by the defendant from Girard, in Kansas, via Joplin, Mo., to St. Louis, and that said portion of said railroad was constructed over plaintiff’s land with the knowledge of plaintiff or his agents at the time, and that plaintiff did not object to the construction of said railroad, hut only as to amount of or measure of damages to he paid him for the light of way, ¡ and that this suit was not brought, or any objection made by plaintiff to the construction of said road, until long after the same was completed and in operation, then the plaintiff
I. This condemnation proceeding was commenced under sections 1, 2 and 3, Q-eneral Statutes, 1865, p. 352, which provided, that railroad corporations might file their petition before the circuit court or judge in vacation, setting out the requisite things, and the judge should appoint commissioners who should proceed to assess damages and report, and, that the clerk should record the report; that “thereupon such company shall pay to the said clerk, the amount thus assessed, for the party in whose favor such damages have been assessed; and on making such payment, it shall be lawful for such company to hold the interest in said land so appropriated, for the uses aforesaid; and upon failure to pay the assessment aforesaid, the court may, upon motion and notice by the party entitled to such damages, enforce the payment of the same by execution, unless the said company shall, within ten days from the return of such assessment, elect to abandon the proposed appropriation of any parcel of land, by an instrument in writing to that effect, to be filed with the clerk of said court, and entered on the minutes of said court, and as to so much as is thus abandoned, the assessment of damages shall be void.”
In the case of Provolt v. C., R. I. & P. R. R. Co., 57 Mo. 256, it appears that in 1870 and 1871, the Chicago & Southwestern Railroad Company constructed its road-bed over plaintiff’s land; in February, 1871, it commenced proceedings under the statute to condemn the right of way; that commissioners were appointed and assessed damages at $75, which was paid to the clerk. That exceptions to the report were filed by plaintiff and new commissioners appointed • that, in the meantime, the company entered upon the land, and proceeded to construct its road, and then leased its whole line to defendant, who, thereafter, held possession and continued to operate it; that the new commissioners assessed the damages at $175, and the court made an order that, ppon the payment of the judgment, the right of way over
In McAuley v. Western Vermont R’y Co., 33 Vt. 311, it is said: “ It being admitted, as it seems to be, that the plaintiff had full knowledge of the proceedings of the company to locate and construct their road upon his land, before and during all the time of the construction, and that he did not interfere in any way, to prevent the occupation of the land for the purposes of the road, otherwise than by forbidding the hands working on the road until his damages were paid, and that on only a single occasion, it becomes an important inquiry, whether he can maintain ejectment for the land, by reason of the non-payment of his damages.”
The St. L., A. & T. H. R. R.Co. v. Karnes, 101 Ill. 402, was a suit in ejectment to recover lands occupied by the road as right of way. The defendant railroad offered in evidence condemnation proceedings under the statute which showed a trial by jury, verdict and judgment for plaintiff, a certain sum; an appeal by plaintiff to the Supreme Court, a reversal of the judgment, and a payment by the road of the amount found by the jury. There was no further proceedings in the lower court, after reversal, by either party. The court held that the rej ection of the record of the condemnation proceedings was erroneous. In the case at bar, the evidence clearly shows, that Gray appeared by agent before
II. Proceedings to condemn right of way for a railroad, are purely statutory. The powers possessed by the judge at Chambers, or the circuit court in appointing commissioners, reviewing and setting aside the report and appointing new commissioners, are derived wholly from the statute, and in exercising those powers the j udge, or court acts under limited and circumscribed authority, and possesses no powers but such as are expressly given by the statute, and these powers must be exercised at the time, and in the manner provided by the act of the legislature. The statute is the only guide of the judge or court, and the judge or court must proceed by the rules and in the manner it prescribes. K. G., St. J. & C. B. R. R. Co. v. Campbell, 62 Mo. 585; Woods v. Boots, 60 Mo. 546; State v. Woodson, 41 Mo. 227. Here the commissioner’s had been appointed and had made their report. The amount of the award had beeen paid to the clerk, as provided by the statute, for the owner of the land, and when that was done, the statute provides “ it shall be lawful for such company to hold the interest in said land so appropriated, for the uses aforesaid.” Gen. St. 1865, § 3, p. 352. Here are mutual rights created, which cannot be divested, except by consent of both parties, unless the com-, pany, before the money is paid to the clerk, and within ten days after the return of such assessment, shall elect to abandon the proposed appropriation of the land. The statute prescribes how the company may avoid this finding, before the money shall have been paid to the clerk. If “the company shall, within ten days from the return of such assessment, elect to abandon the proposed appropriation of the land by an instrument in writing to that effect, to bo filed with the clerk, etc.” This must be done in the manner, and within the time prescribed by statute. In this
III. It is insisted by the respondent, that the Kansas City, Joplin & Little Rock Railroad Company was organized under the laws of the state of Arkansas, and, therefore, had no right under the laws of this State, to condemn a right of way. Section 790, Revised Statutes, 1879, passed by the legislature in 1870 (Laws 1870, p. 90 sec. 2) provides, amongst other things, as follows: “ Or any railroad company, duly incorporated, and existing under the laws of an adjoining state of the United States, may extend, construct, maintain and operate its railroad into and through this State, and for that purpose, shall possess and exercise all the rights, powers and privileges conferred by the general laws of this State, upon railroad corporations organized thereunder, and shall be subject to all the duties, liabilities and provisions of the laws of this State, concerning railroad corporations as fully as if incorporated in this State.” This statute provides the power by which this Arkansas railroad company might obtain the right of way by condemnation,