28 Fla. 631 | Fla. | 1891
In the main opinion in this cause, 27 Fla., 443, 9 South. Rep., 2, a judgement in ejectment‘in favor of
Pending- our consideration of the subject, the appellee moved that the mandate for possession should be sent down, the grounds of this motion being: 1st. That sufficient time had elapsed to enable the appellant to institute and consummate the proceedings contemplated in the order of the court withholding the mandate; 2nd. That proceedings had in fact been instituted and pursued to a final judgment of the Circuit Court of Yolusia county, rendered August 10th, 1891, refusing to confirm the condemnation of the lands now occupied by the appellant, and sought to be condemned; such refusal being on the ground, urged by the appellee, that since the adoption of the present Constitution of this State there has been no valid constitutional legislation authorizing such condemnation.
As stated in the main opinion, the original condemnation proceedings were instituted in August, 1885, not by the appellant company, but by the Atlantic Coast, St. Johns and Indian Eiver Eailroad Company, of which the appellant company leased the road in December of the same year for the period of ninety-nine
To this report Charles S. Adams as administrator, and individually, and Helen M. Adams, filed objections of which the fifteenth and subsequent are as follows:
On the 10th day of August, the Circuit Judge made an order sustaining the exceptions and protests, and refusing a confirmation of the report, and also refusing “ to order further proceedings in this matter, on the ground of the unconstitutionality of the law authoriz
Upon the entry of this order the railroad company entered its appeal to the ensuing term of this court, the judge fixing the penalty of the appeal bond at three hundred dollars, which bond has been approved, and the transcript of appeal has been filed in this court, and citation issued and service thereof acknowledged.
It is urged as a reason why the.mandate should be issued, or should not be withheld, that the appellee will be entitled to damages onthe basis of the value of the land, including the crossties and rails, and roadbed or works, put and constructed on the land by the company. This in our judgment is not the law. It is true that if persons or corporations vested with the power of eminent domain enter upon and appropriate private property to their use, without the consent of the owner, before taking the steps required by law to condemn the same, the owner may resort to tresspass for damages, ejectment for possession, or to equity for an injunction against the use of the land. Still where such an illegal entry has been made by a body possessing the power of eminent domain, it may condemn the property entered upon and thus secure a right to the possession and enjoyment thereof. If an entry has been made by the express or implied consent of the landowner, it is clear that he should not have the value of what has been put upon the land; and the better authority is that the same rule also applies in the absence
Though as a general rule, things affixed to the freehold so as to be a part thereof become, as against a tresspasser or person entering tortiously, and affixing them, the property of the owner of the soil, this rule is not applicable as against'a body having the power of eminent domain and entering without leave and making improvements for the public purpose for which it was created and given such power. The principle controlling the landowner’s right to damages in such cases is that he shall have compensation for the damage actually sustained by him, and no more, and that the trespasser’s liability shall be likewise limited. This principle is affirmed in Mississippi, Michigan, Iowa, Illinois, Minnesota, Wisconsin, Oregon, Pennsylvania and Alabama. L. & N. O. R. Co. vs. Dickson, 63 Miss., 380; Morgan’s Appeal, 39 Mich., 675; Toledo, A. A. & G. T. R. Co. vs. Dunlap, 47 Mich., 456; Daniels vs. C. I. & N. R. Co., 41 Iowa, 52; C. & A. R. Co. vs. Goodwyn, 111 Ill., 273; Green vs. Goodwyn, 26 Minn., 66; Lyon vs. G. B. & M. R. Co., 42 Wis., 538; O. R. & N. Co. vs. Mosier, 14 Oregon, 519; Justice vs. N. V. R. Co., 87 Penn. St., 28; Jones vs. N. O. & S. R. R. Co., 70 Ala., 227. See also N. H. & R. Co. vs. Booraem, 28 N. J. (Eq.), 93; Burgess vs. Clark, 13 Iredel (Law), 109; W. N. C. R. Co. vs. Deal, 90 N. C., 110; T. & St. L. R. Co. vs. Matthews, 60 Texas, 215; Deitrich vs. Murdock, 42, Mo., 279; Indiana B. & W. R. Co. vs.
The railroad company, says the Supreme Court of Mississippi, in the case from that State cited above, was a trespasser in constructing its road upon land over which it had not acquired the right of way, but it still had the right to acquire the right of way unaffected by the liability incurred for its trespass; and the trespass is not involved in the determination of the due compensation; the continuing right of the company to secure the right of way, in accordance with its charter, and the nature of its entry on the land and annexing chattels to the soil, distinguish the case from that of a trespasser who affixes chattels to the freehold, and the rule of the common law, established when railroads were unknown, is not applicable. In the latter of the cases cited from Michigan, it being an appeal in a condemnation proceeding, a previous proceeding had been taken by the company, which had thereupon entered and built, and afterwards the condemnation was set aside by the Supreme Court on appeal, because there had been no notice to Dunlap, the landowner. Afterwards the company instituted the new condemnation proceedings. “The railroad company, whether rightfully or wronfully,” says the opinion, “ laid this track while in possession and for purposes entirely distinct from any use of the land, as an isolated parcel. It would be absurd to apply to land so used, and to a railroad track laid on it, the technical rules which apply in some other cases to struct
The cases relied upon by the appellee to support his contention, do not overcome the conclusions reached by us. In N. Y. & G. L. Ry. Co. vs. Stanley’s Heirs, 35 N. J. (Eq.) 283, the same rule as to damages was enforced, 'and an inj unction granted to restrain an action of ejectment. The original entry had, however, been made under an agreement between a predecessor railroad company and the landowner, of which agreement such railroad company had not, nor had any of its successors, carried out the undertaking to erect a certain depot. It was remarked in this case, as pointed out by appellee’s connsel, that on no other hypothesis than this agreement, would the appellant have a standing in court to stay the landowner’s suit for possession, but of this language it is observed in Patterson, N. & N. Y. R. Co. vs. Kamlah, 42 N. J. (Eq.), 93, 98, that
In California, in C. P. & R. Co. vs. Armstrong, 46
Of the cases cited by the appellee, that of Graham vs. C. & N. C. J. R. Co., 36 Ind., 463, alone can be claimed to be authority for the contention that in an authorized proceeding for condemnation, the improvements put upon the land by a railroad company having the right to exercise the power of eminent domain, yet not doing so in a valid manner, should be included in estimating the landowners’ compensation or dam
The clear weight of authority, the better reasoning and true right of the matter are against the position of appellee.
II. The authorities at our hands bearing directly or by analogy on the subject of the power and duty of this court to suspend the warrant are those mentioned in the succeeding paragraph.
In Pittsburg & Steubenville R. Co. vs. Jones, 59 Penn. St., 433, the railroad company had entered iqpon the land finder an agreement to purchase, and had built its track thereon. The company failed to pay the purchase money, and there was a decree in favor of the vendors for the sale of the property for the amount due, and the same was sold by the sheriff under the decree, and the purchasers brought ejectment against the company. There had never been any condemnation proceedings against either the former owners or the purchasers at the sheriff’s sale. It was said that the sheriff's vendees took the whole title to the land, the legal title of the vendors and the equitable title of the railroad company, and not subject to any easement or right of the company to use any part of it for the track of its road. But it was held by the court that the company under the provisions of its charter
All of these cases, except that of Bartleson vs. City of Minneapolis, 33 Minn., 468, and Strong vs. City of Brooklyn, 12 Hun, 453, sustain either expressly or by analogy the power to withhold the mandate for the purpose desired in this cause, and the excepted cases are not, considering the fac^s of this case, authority
There is no such difference between the Constitution-of our State and those of the States in which the above decisions were made as makes these decisions inapplicable here.
Tire poAver invoked is one liable to be abused; Freeman on Executions, sec. 32; and should, in our judgment, be exercised Avith extreme caution, but Ave are entirely satisfied that the case before us is a proper one for its exercise.
The facts af the case are of course such as necessitated the affirmance of the judgment in ejectment in favor of the appellee, yet it is true that the appellant is a lessee under the company by which the original condemnation proceedings were instituted, and that the