3 Or. 428 | Or. | 1869
Appellant excepted to the striking out of his answer the denial of the incorporation of respondent, and claimed that, as a denial to a material allegation, it was not a plea in abatement, and not inconsistent with our laws, which gives to a defendant only the right to demur or answer-that it was a plea in bar of respondent’s right to recover, going to the merits of the action, and cited authorities. Appellant further claimed that in this case it was also a jurisdictional question, and could not be waived by the court.
Bespondent claimed that such pleading is prohibited by sec. 45, p. 670, of the Code, and that a plea in abatement cannot be pleaded with one to the merits.
The second point in which error is alleged may, from the exceptions taken, be expressed thus: “that the 'plaintiff below was allowed to prove on trial, that the construction of a railroad across the land of the defendant, would be of more benefit than damage thereto, excepting the value of the land actually taken by plaintiff;” and that the court, based thereon this'instruction: “if the benefits to the lands of the defendant are equal to the damages, then all that you should assess is the value of the land taken.” In the constitution of Oregon in sec. 4, art. XI, is found this provision: “no person’s property shall be taken by any corporation, under authority of law, without compensation being first made or secured, in such manner as may be prescribed by law.” Under this power the legislature enacted a law relating to corporations, and among its provisions are these: After
Our law does not require that either the corporation or the land owner shall build fences along the track, but we think that is one of the questions involved in the issue submitted to the jury, and we can readily conceive of many conditions, where the fencing of a track would neither be useful or ornamental, and totally unnecessary. It might be considered as damages received, or secured, under the view of this proposition — if by the locating and building of a railway, the lands crossed by it are raised in value, a certain amount per acre, it would, under the construction of our constitution and laws, be unjust that the owner of such lands should claim and receive compensation for all the fences he may or may not be forced or find convenient^ to build, all cost of cattle guards, of crossings, of all inconveniences, and say to the company you have increased my property in value so many dollars per acre, but you shall not offset that against these inconveniences, and I will take the benefit in both ways. Such is not the spirit, or our construction of the law — roads generally are laid out, and under the provisions of the constitution, damages only are given for the excess of injury over resulting benefits — and in other instances the operations of the laws are in accordance with our construction. We think no error was made here.
The third point is, that the court adjudged costs, etc., against appellant which accrued after the tender by the respondent on the twenty-second of March; and we think there was error in this. Section 49, p. 671, Gen. Laws, provides, that all costs and disbursements of defendant shall
The tender in this case was made upon the day of trial, long after the commencement of the action, and no benefit of tender under tbe law accrued to tbe respondent.
Section 511, Gen. Laws, cited by counsel for respondent, is applicable to cases generally, but tbe special law of corporations carries its special provision with it, which latter must govern. It was as though no tender had been made, and we must modify the judgment by reversing that allowance of costs to respondent. In other respects the case stands affirmed.