3 Or. 91 | Multnomah Cty. Cir. Ct., O.R. | 1868
The motion for a new trial was overruled upon the following grounds:
This is a proceeding under the statute providing a special mode of obtaining the right of way by a railway corporation. (Code, p. 670.)
The statute provides, that “ the defendant in his answer may set forth any legal defense to such appropriation of such lands, or any portion thereof; or, omitting such defense, may aver the true value of the land in question, or the damages resulting from the appropriation thereof, or both. And the act further provides, that “ such action shall be commenced and proceeded in to final determination, in the same manner as an action at law, except as in this title otherwise specially provided.” The first question presented on the motion for a new trial is, whether a defendant may at the same time set up that the plaintiff is not incorporated; and also the true value of the land in question, together with a claim for the damages resulting for the appropriation thereof ?
I do not think the statute above quoted places the matter of joining these defenses in an attitude more favorable to the defendant’s position than does the ruling in the case of Hopwood v. Patterson, 2 Ogn. 49. I. think that clause of the statute which speaks of setting forth “ any legal defense,” uses the word defense to denote a statement of facts that will debar or preclude the plaintiff from appropriating the land upon any terms. That is, the defendant may plead any matter that will defend him against being compelled to yield the right of way. And I presume the defense thus spoken of may be a statement of facts, in abatement, wbieb, if found true, will defend him against yielding up the right of way in this action; or it may include facts that will perpetually bar the plaintiff from obtaining such right. The statute provides that he may set forth such defense, “or omitting such defense,” he may have the damages ascer
It is urged that this question, if treated as arising under the general practice act, is not within the rule established in Hopwood v. Patterson, because the denial of> the plaintiff’s corporate existence, is not a plea in abatement. It is true that there are cases where a denial of the plaintiff’s corporate capacity brings the cause to trial on the merits of the case, and the defense may then properly be said' to be in bar of the action. But this is not usually the case, and when establishing the truth of the matters alleged, will not bar a future action for the same property, but will abate the present action; it can not be said the matter answered is a plea in bar. If a party seeks to set up such a defense, he should do so before answering to the merits. (Conard v. The Atlantic Ins. Co. 1 Pet. 450.) If issue were joined, and a trial had on that question in this case, and it should be shown that the persons who are engaged in the construction of this road, for some technical defect, or for any reason were not incorporated, but were merely partners, the action would abate; but if they saw fit to incorporate immediately, and to commence another action for the same right of way, the judgment in this case would be no bar to such action. Hence this part of the answer can not be properly called a plea in bar, and there was no error in ^striking it out, under the rule established in Hopwood v. Patterson.
The next and probably, the most important question presented in the ease, refers to the assessment of damages. The question calls for a construction of see. 18, art. • 1 of the constitution, and sec. 24 of the general incorporation law. (Code p. 665.) The statute discloses that “no such appropriation of .private property shall be made, until compensation therefor be made to the owner thereof, irrespective of any increased value thereof, by reason of the proposed improvement by such corporation, in the manner hereinafter provided.” This language is sufficiently indefinite, that one party to this proceeding, construes it to be a restriction on
The position taken by the defendant is that the payment to be made, both for the land actually taken, and for the resulting damages, must include the whole value of the land, irrespective of any increase, etc., and full payment of all damages that may result, irrespective of any advantage or benefit, benefit. And I am aware that it lias been held in an an other state, in one case at least, that, independent of any statute, this is equitable and right. That if a railway project actually raises the price of the lauds generally in a neighborhood, the individual, through whose lands the road happens to run, is as well entitled to reap the benefit as are his neighbors, through whose lands it does not run. And if building the road causes him some inconvenience and disadvantage in some respects, and affords him conveniences and advantages in other particulars, it is no more j ust to set off one against the other, than it would be to compel his neighbors to pay or to contribute to the corporation in proportion to the amount their property is enhanced in value.
It is true, that as between himself and Ms neighbors, whose lands the road does not touch, he may be less benefited than they; but if constructing a road will injure him in one particular, but will benefit him in some other particular to an extent greater than his injury, I am unable to see the moral wrong, as between him and the builders of the road, in refusing to compel them to pay him for acts which do him more good than injury; aside from paying i'or land actually taken. The fundamental law protects him as to the land the corporation actually seeks to take from him, and ho cannot be deprived of that without full compensation, even though the benefits may exceed the injury by a thousand fold, because such is the law. And in this state, the branch of the case denominated resulting damages, de
If it was the claim of a neighbor for damages, whose lands lay so near the track as to suffer similar inconveniences without actually being touched by the railway, the. statute would not apply. But one who is compelled to part with some part of his tract of land has, by virtue of the same statute which compels him to part with it, a standing in court, to ask, not only for compensation for that which is taken, but for resulting damages beyond that.
If the statute had said he should have full payment for the land taken, “irrespective of any increased value thereof,” and full compensation for all damages done to any land not taken, irrespective of any increased value of that which is not taken, it would come up to what is now claimed as the construction of the present statute.
But the statute falls short of that; the increased value-that is not to be considered is, “the increased value thereof;” the word “thereof” evidently refers here to the land to be appropriated, and not to the residue. I am convinced that, if beyond the loss of the land taken, the defendant is not on the whole injured, but is in fact benefited, he cannot under this statute recover resulting damages for a proposed road, the construction of which will as a whole be an actual benefit to him over and above all damages. I think the jury were correctly instructed on the subject of fencing the line of the road, and that no error has been committed, to the prejudice of the defendant.
The motion for a new trial must be overruled.
After the overruling the motion for a new trial, costs were erroneously taxed, in favor of the plaintiff, and the taxing of costs was reversed on appeal to the supreme court. The ruling of the circuit court was affirmed on the several points involved in this motion. See Post, Ogn. Central R. R. Co. v. Wait.
