Louisville, New Orleans & Texas Railroad v. Ryan, 64 Miss. 399

64 Miss. 399 | Miss. | 1886

Cooper, C. J.,

delivered the opinion of the court.

The court erred in permitting evidence of offers which had been made for lands, for which compensation is sought. It is not competent to prove value by such evidence. Pierce on Railroads 202; 1 Rorer on Railroads 379, n. 1.

But since it is abundantly shown, not only by the evidence for the plaintiffs, but also by that of the defendant, that the injury done is fully equal to the damages awarded, the verdict ought not to be disturbed. No witnesses examined put the damages at less than the sum awarded.

The criticism made by counsel for appellant that the court permitted the plaintiffs to prove the speculative value qf the property is not a just one. The witnesses all testify that the property has a, certain, determinate value. Now, what. causes that value is evidently the uses to which it may be put by the owner. It is a long, narrow strip of land fronting on a navigable stream, where the commerce of a city enters and is discharged. Clearly it is of insignificant value for agricultural purposes, and there is neither a wharf, a factory, or a saw-mill on it, dnd there may never be. But if its adaptability to these purposes or any one of them give it a present value, the owner is entitled to that value, though in fact no one now proposes to use it for any of these purposes. The suggestion of the appellant that the land might never be devoted to any of the uses to which its situation and 'character adapt it is far more improbable than that it will be done.

The decree is affirmed.

After the foregoing opinion was delivered counsel for the appellant made a motion or suggestion of error in the following words:

“ The appellant herein moves the court that it be allowed to abandon all claim in or to the forty feet of ground in controversy in this case or to any easement in the same, which it now here offers to do, and that the court by its decree here will direct the court below to so modify its decree as to change it from an absolute decree against appellant for five thousand dollars, and an award of execution thereon to a decree fixing or ascertaining the award of the jury, or such other and different modification as to this court may seem proper, which will relieve appellant from said judgment and execution thereon.”

W. A. Percy, for the appellant.

1. Error in the judgment rendered by the court is suggested in this. That it affirmed the decree of the court below as to that part of said decree entering judgment against the railway company for five thousand dollars and awarding execution.

This action of .the court below was one of the grounds of error assigned. The chancery court had no power to enter a decree for the money and award execution. This is not a case in equity. It is a purely statutory proceeding, and the powers of the court are limited by the statute. N. O. R. R. Co. v. Doake, 60 Miss. 621. What are the statutory powers of the Chancellor? They are defined in the charter of tíie N. O., B. R., V. & M. R. R. Co., Acts of 1882, p. 921, § 2.

The whole thing-is a matter of statutory regulation, and it will be found that wherever the court enters judgment and awards execution it is authorized' to do so by the special statute under which the proceedings are instituted. Such was the law in the N. H. case, 51 N. H. Rep. 188.

2. But has the company at this stage of the proceedings the right to abandon its claim to appropriate the forty feet and decline to pay the five thousand dollars ? If it has, then the decree awarding execution is erroneous, for the reason that it deprives the company of that right. In considering this question it is important to ascertain the attitude of the parties. The record does not show that the company was in possession of the land condemned. If it shows anything on this point, it is that the company was not in possession.

In considering the right of abandonment, the possession by the railroad company is not an element to be weighed.

The general principle on this subject is that the land-owner only has a vested right to the award when the title to the land is vested in the company. Mills on Em. Dom., §311; 2 Dillon on Mun.. Corporations, §§ 609, 610.

The Maryland case, cited in Dillon, swpra, is strongly illustrative of the position assumed. In that case the statute provided that when the “ valuation was paid or tendered title should vest,” almost the identical language of the charter under which these proceedings were instituted.

Under the constitutions and laws of many of the States the title to the land vests in the company before either tender or payment. But the general principle underlying this whole question of abandonment is one of mutuality. When under the statute or the constitution the rights of the parties are mutually determined so as to vest title in the company and a right to the money in the landowner, then the right of abandonment is lost, but not until then. 27 "Vt. Rep. 39.

Under our constitution this vesting of title can only take place upon tender or payment of the award. Williams v. New Orleans, etc., R. R. Co., 60 Miss. 689. It would seem that this case ought to be decisive of the question. See 23 Am. & Eng. R. R. Cases 115; 10 Am. & Eng. R. R. Cases 105; 6 W. Va. Rep. 220; 10 How. U. S. Sup. Rep. 395; 20 Iowa 523 ; 13 Kansas 496 ; 17 Kansas 239.

Me Cabe & Anderson, for the appellees.

1. The answer to the position of appellant is plain and simple. The ‘proceeding is not statutory at all. The jurisdiction is statutory, but the proceeding is not. The constitution in parceling out jurisdiction to the different courts overlooked this matter of “ eminent domain.” As a result this was left to be disposed of by the legislature. The legislature has seen fit in cases like the present to bestow jurisdiction upon the chancery courts. When bestowed the court becomes possessed of full jurisdiction to perfect in detail the appropriation sought, and to declare and enforce the rights of all the parties according to its recognized and established rules of procedure. The old axiom that when the court of chancery once takes jurisdiction, it takes it for all purposes and can do complete justice, applies here in all its force.

2. But it is hardly necessary for us to reason further from the statute and general principles applicable to courts of chancery. The courts have completely traversed this ground and have held the right to enter judgment and award execution to exist. In a late case decided by the Supreme Court of Nebraska, 17 Neb. 692, it has been held that this is the proper remedy, viz.: “to give judgment on the verdict and award execution thereon.” In the case of Williams v. N. O., etc., R. R. Co., 60 Miss. 708, at the close of the opinion it is said “ when the decree shall have been rendered a reasonable time should be allowed to pay the money decreed, and the cause should be retained until the same is so paid, so that its payment may be enforced by execution, or, if necessary, by injunction restraining defendants from running their trains over complainant’s land until the decree is complied with.” In the charter of that railway company there is no expressed authority for this execution or injunction, but the right to the use of either remedy is held nevertheless to exist. Other authorities might be cited but these are deemed sufficient. Undoubtedly the power to give judgment and award execution exists in a proper case. "What, then, is a proper case is the question.

We hold the following to be proper cases :

1. “ Where, as here, the company appeals without paying the award money into court.

2. “ Where, as here, the company is in the possession of the premises when the suit is brought.

3. “ Where, as here, the company is by its conduct estopped from abandoning the land.”

Upon each of the foregoing points our right to the execution is conclusive.

Cooper, C. J.,

delivered the opinion of the court on the suggestion of error filed by the appellant.

On the original submission of this case the point was made that the chancery court erred in rendering a personal decree against the appellant for the damages awarded by the jury. But as the record disclosed the fact that appellant was in possession of the land and that it was necessary for it to retain such possession for the purposes of its business, we were disinclined to disturb the decree. The appellant now suggests to the court that as a matter of fact it is not in the actual possession of the property and offers to abandon all claim to it by reason of the condemnation proceeding, and again contends that the chancery court had no power to award a personal decree against it. We have given to the subject a careful consideration and are constrained to agree with the appellant on the question presented. The charter of the company, while it confers upon either party the right of appeal to a jury in the chancery court from the verdict of the jury of inquest of damages, makes no provision for the rendition of personal decree, presumably for the reason that it was contemplated by the legislature that condemnation proceedings would be resorted to by the company or the land-owner before an actual entry on the land, and because in such cases the company could not enter until payment of the award should first be made. We haye examined the cases cited by counsel for the appellee and many others but have found that in most of them the rights of the parties at a certain stage of the proceeding were fixed and determined by the statute under which relief was sought. Such are the cases in New York, Pennsylvania, New Hampshire — in fact, we have found but one decision in which the position taken by appellee, that the award of damages fixed the right of the land-owner to the sum awarded and gave power to the court to enter a personal decree in the absence of a provision in that respect by the statute, is sustained. In 15 Neb. this view is maintained, but this case is, we think, in conflict with the decided weight of authority.

Unless by the statute the right of the land-owner is to be considered as fixed by some step in the proceedings, it seems that the right of abandonment must exist, especially in States whose constitutions provide, as ours does, that the compensation must be “ first paid ” before title can be acquired by the party claiming the right of eminent domain. Mills on Eminent Domain, § 311; Denver v. R. R. Co., 23 Am. & Eng. Railroad Cases 121, and authorities cited in note.

In Williams v. R. R. Co., 60 Miss. 689, the land-owner sought the aid of a court of equity to enforce payment of the damages awarded for lands into the possession of which the company had entered, a portion of the tract condemned having continued in the uninterrupted possession of the complainant. The contention in that case was made by the company that it had acquired title by adverse possession. This was determined against the railroad and the cause was remanded in order that the court might grant relief to the complainant either by enjoining the continued use of the property or by awarding execution if the company should continue in the use of the property. The point now made was not urged in that case, and the attention of the court was directed only to the real controversy between the parties.

We are of opinion that the appellant may now elect to abandon the property described in the petition, and that the land-owner must resort to his action of trespass to recover for any injury that he has suffered by reason of the unlawful entry. So much, therefore, of the decree as awards a personal judgment against the company must be reversed, and since the appellant now abandons all claim to the property no further steps need be taken in the case. The costs both of this court and of the court below must be paid by the appellant. (