25 Mo. 515 | Mo. | 1857
delivered the opinion of the court.
This case has been brought here by appeal, and a question has been made whether an appeal lies. The practice act of 1849 (art. 30, § 6) excludes from its operation all special statutory remedies which, before the passage of that act, were not to be obtained by action at law or bill in equity, and would therefore not seem to apply to this cause; but in the view we are disposed to take of the matter, it is not very material whether that act or the act of 1845 be considered as applicable. The practice act of 1845 (R. O. 1845, p. 831) gives this court a supervision by appeal of all judgments and
Nor is it perceived that the act of 1849 is less comprehensive in its scope. If this proceeding is not one “ for the enforcement or protection of private rights, or the redress or prevention of private wrongs,” a very restricted meaning must be given to this language, hardly compatible with the general spirit of the law.
That there may be cases where special and limited authority is delegated to a court, not because it is a court, but from some idea of convenience or propriety, and the decision of the court bo made final, is not questioned. It may however admit of a doubt whether the legislature could so devise a proceeding designed to effect the transfer of private property to the public, as to deprive the courts of the power of determining whether the constitutional restrictions upon this subject had been honestly complied with. However this may be, the question here is, does the court act in its judicial capacity, and can it exercise, in its control over the subject confided to it by the charter, the general powers and jurisdiction of a court, or is the court, quoad hoc, a mere commissioner, a special tribunal selected for a special purpose and functus officio when the special powers confided to it by statute have been exhausted ?
The act of 1851 (Sess. Acts, 1851, p. 485), incorporating this company, provides for a voluntary relinquishment of the rights of way desired by the company for their road, and also provides a mode by which the company can acquire a right of way, or a title to the land, in cases where the owner is unwilling to relinquish. In the latter case the proceeding is origin
There are some provisions in this section which undoubtedly might be construed to limit the power of the judge, as a mere commissioner, to the specific acts delegated; but in the main the general scope of the section looks to the action of the court in its judicial capacity, and gives the court authority, not only to pronounce a judgment which will pass a title to the land to the company and a right to the damages to the land owner, but “ to make all orders and take any steps” which in the opinion of the court will best promote the ends of justice. Although the act is carelessly drawn and framed in a mode to justify doubts as to its true intent, we will not presume, notwithstanding the absence of any special provisions for an appeal, that it was the intention of the legislature to deprive the parties interested of this right; especially as the provisions of the general law, both of 1849 and 1845, seem large enough, without any strained construction, to embrace' the case. We are the more inclined to this 'opinion, because, an appeal is the most convenient and least expensive mode in which the supervising jurisdiction of this court can be exercised, and because it may be safely said that it is at least doubtful whether that jurisdiction could be entirely cut off if
The principal question in this case is, whether the corporation — after the assessment of damages and the report of the viewers, and before the judgment of the court thereon — has a right to discontinue it proceedings ; and this question will appear upon examination to be much embarrassed, not only by judicial decisions apparently if not really conflicting, but by the intrinsic difficulties of the subject. Considerations of a forcible and practical character might very well have prompted the legislature to have established the rule either way without its being very obvious that injustice would be done. However, our business does not lead us into this branch of the subject, and we are left simply to inquire what the legislature has declared to be the rule in the act under consideration, and, if no such declaration has been made, what rule the general law of this state has provided.
In England there is no uncertainty as to the rule. It is well settled by the decisions to which we have been referred, that when railway corporations give notice to a land owner on the route of their railway of their intention to take his land, the company is not at liberty afterwards to retract. Indeed the courts have gone to the extent of holding, that, where a party so situated has received such a notice, he may sustain a bill for a specific performance of the agreement implied by the act of Parliament; and the courts will enforce such agreement by ordering the company to take the proceedings prescribed by the statute for ascertaining the amount of purchase money and compensation. (Walker v. Eastern C. R. Co. 6 Hare, 593.) An examination of the British Railway Statutes and the judicial constructions upon them will however show that the system in that country essentially differs
In this state the course pursued is so totally different, both in system and in all its details, as hardly to require that the points of difference should be particularly enumerated. Railway charters are to be had for the asking, without money and without a route. They are frequently granted ten years before the undertakers are compelled to take the first step either in making a survey or raising any portion of the capital. No line of the route is determined by the charter; for, though a starting point is usually designated, and sometimes
It is not e§,sy to determine, from the act which incorporates this North Missouri Railroad Company, at what period the route can be said to be so located as to deprive the company of the power to change. The act gives to the company an indefinite power to “ survey, mark, locate and construct” a railroad from St. Charles to Iowa. The act is entirely silent as to how many routes may be surveyed — what shall be considered as binding the company to any particular route — how long they shall be so bound — and how often they may change their selection. It would seem that the power to change a location once determined on is by no means expressly denied, but on the contrary is rather impliedly given. If the company begin at St. Charles and end on the Iowa line, there is no intermediate point determined, except that they are restricted in their selection of a route to that district of country which is denominated “the divide” between the waters of the Missouri and Mississippi rivers; and what acts shall constitute
In addition to these obvious marks of distinction between the system of railway enterprises in England and in this country, it may be observed that the principles upon which a transfer of lands from individuals to corporations is effected under the two systems are quite distinct. In England the power of Parliament is exerted to effect a sale, which may be voluntary or involuntary on the part of the vendor, but to which the assent of the vendee is implied by the passage of the charter; and the first step taken by the corporation in pursuance of its charter, to indicate to the vendor that his -land will be required, is regarded, as completing the .contract.
In New York the later and more prevalent opinion seems to be, that the company does not acquire any vested or indefeasible right or title to the land sought to be taken, nor the owner any right to the compensation ascertained by the commissioners, until their report is filed and confirmed, and the order of the court made for the payment of the amount. (Hudson River Railroad v. Outwater, 3 Sand. S. C. 691; The People v. Brooklyn, 1 Wend. 322; In the matter of Canal street, 11 Wend. 154.)
The decisive question in the case is, at what time do the rights of the parties become vested ? Under the charter of the North Missouri Railroad Company, do the rights of the parties become vested upon a notice from the company to the land owner, or upon the appointment of commissioners to view the land, or upon the report of the commissioners, or upon the judgment of the circuit court confirming the previous proceedings in the case ? The language of the act is that “ the court shall enter judgment in favor of such owner against such company for the amount of damages assessed, and shall make an order vesting in said company the fee simple title of the land.” The court is not authorized to enter a judgment for the compensation against the company until all the preliminary steps pointed out in the act have' been
The cases in Massachusetts and some adjudications in this court', to which reference has been made, relate to the construction of county or state roads ; and there is nothing in those opinions, so far as we have observed, conflicting with the conclusion reached in this case.
In these cases concerning a condemnation of land, the act
The other judges concurring, the judgment is reversed and and the cause remanded.