63 Miss. 380 | Miss. | 1885
delivered the opinion of the court.
The correct practice under the acts on the subject is to appoint the commissioners, when applied for, at once, and for them to perform the duties devolved on them. The law does not contemplate
The direction to the commissioners to include in their estimate of damages the value of the railroad upon the land is erroneous. On this subject we adopt the views held by the courts of Alabama, Michigan, Pennsylvania, Minnesota, and Wisconsin. Jones v. Railroad Co., 70 Ala. 227 ; Morgan’s Appeal, 39 Mich. 675; Railway Co. v. Dunlap, 47 Mich. 456 ; Greve v. Railway Co., 26 Minn. 66; Justice v. Railroad Co., 87 Pa. St. 28; Lyon v. Railway Co., 42 Wis. 538. See also Railroad Co., v. Matthews, 60 Texas 215.
The railroad company 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. The trespass committed 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. Answerability by the company for its trespass in the appropriate action, and “ due compensation ” in the proceedings for condemnation of the right of way, constitute the full measure of the right of the landowner.
Reversed and remanded, with directions for the appointment of commissioners, as prescribed by law.
