93 P. 334 | Or. | 1908
delivered the opinion of the court.
This is a motion to dismiss two appeals. A statutory proceeding, analogous to an action at law, was commenced by the Oregon Electric Company, a corporation, against the Terwilliger Land Co., a corporation, to condemn a strip of land sixty feet in width over and across certain lots in the city of Portland. A supplemental complaint was filed in which it was stated that, after the proceedings were instituted, the defendant
The legislative act referred to, so far as deemed involved herein, contains the following clauses:
“Upon the payment into court of the damages assessed by the jury, the court shall give judgment appropriating the lands, property, rights, easements, crossing, or connection in question, as the case may be, to the corporation, and thereafter the same shall be the property of such corporation”: B. & C. Comp. § 5102.
“Either party to the action may appeal from judgment therein, in like manner and like effect as in ordinary cases; but such appeal shall not stay the proceedings so as to prevent such corporation from taking such lands into possession, and using them for the purposes of the corporation, or from proceeding to exercise the right, enjoy the easement, or make the crossing or connection condemned”: B. & C. Comp. § 5103.
*111 “If a judgment in such action be reversed, and a new trial had, and at such second trial the jury assesses the damages of the defendant at a greater sum than before, the court shall, in addition to the judgment appropriating the land, right, easement, crossing, or connection as provided-in Section 5102, give judgment in favor of the defendant for such excess”: B. & C. Comp. § 5105.’
“If the defendant accept the damages paid to the clerk, he waives his right of appeal, and if he do not, such sum shall remain in the control of the court, to abide the event of the appeal, and if the defendant or unknown owner of the land do not appear and claim the same, it shall be invested for the benefit of whom it may concern, as in case of unclaimed moneys in the sale and partition of lands”: B. & C. Comp. § 5106.
In case a judgment of condemnation is reversed and a new trial ordered, the statute makes no provision that judgment shall be given in favor of the plaintiff for the excess of the money which it has paid into court, if, at a subsequent hearing, the jury assess the defendant’s damages at a less sum than was awarded to that party at a prior trial. It will be remembered that Section 5102, B. & C. Comp., provides that, when the damages assessed in the manner indicated have been paid into court, a judgment shall be given appropriating the lands to the plaintiff corporation, “and thereafter the same shall be the property of such corporation.” It would seem from this clause that the right to the land or easement was thus forever transferred. The property, however, is held by a plaintiff corporation so long apparently as the judgment remains unreversed, for a perusal of Section 5105, B. & C. Comp., would seem to indicate that, in case a new trial is had, the court is required to give another judgment of condemnation. It would thus appear that, while a party to a judgment may appeal from some specified part thereof (B. & C. Comp. §549), the questions of law appearing upon the transcript may be reviewed (B. & C. Comp. § 555), and the judgment reversed or modified in the respect men
The right to take an appeal from a judgment of condemnation is expressly granted by the legislative assembly to a plaintiff corporation: B. & C. Comp. § 5103. An examination of the clause contained in that section of the statute, “but such appeal shall not stay the proceedings so as to prevent such corporation from taking such lands into possession,” etc., would seem to denote that the right of a plaintiff, after securing a judgment of condemnation, to use the lands for the purposes of the corporation, notwithstanding a stay of proceedings, is limited to appeals taken by a party defendant. An undertaking on appeal does not stay the proceedings, unless, in addition to the appellant’s stipulation to pay all damages, etc., that may be awarded against him on the appeal, he further engage, if the judgment be for the recovery of the possession of real property, that during his possession thereof he will not commit, or suffer to be committed, any waste thereon, and that, if the judgment or any part thereof be affirmed, he will pay the value of the use and occupation of such property, so far as affirmed, from the time of the appeal until the delivery of the possession thereof: B. & C. Comp. § 550.
The section of the statute last mentioned also declares that, to secure a stay of proceedings under a judgment given for the recovery of money, the undertaking, in addition to the prior stipulations adverted to, must furthur provide that the appellant will satisfy the judgment, so far as it is affirmed. In the case at bar the judgment given was based upon a recovery of money,
If Section 4, Article 11, of the Constitution is applicable to condemnation proceedings, when instituted by a railway company, the legislative assembly has failed to prescribe the manner whereby the compensation of land taken for a public use may be “secured.” •In the absence of such enactment, we think a fair construction of the several provisions of the statute quoted warrants the conclusion, that when a plaintiff corporation pays into court the damages awarded as the measure of the injury sustained, and thereupon secures a judgment of appropriation, it cannot, after taking possession of the land, prosecute an appeal from the judgment under which the use of the premises for the purposes of the corporation has been secured, though the necessary undertaking for a stay of proceedings may have been given. By voluntarily accepting the benefits of the
It is unnecessary to consider the second appeal, for, if the first cannot be maintained, the other is equally unavailing.
The motion is therefore allowed, and both appeals will be dismissed. Dismissed.
Decided February 18, 1908.
On Motion to Eetax Costs.
Mr. Justice Moore delivered the opinion of the court.
The action of the clerk in rejecting the items is approved.
Dismissed: Motion to Retax Gosts Disallowed.