51 Ark. 235 | Ark. | 1888
On the 3rd day of August, 1880, the appellants commenced this action against appellee in the Crittenden circuit court, on its equity side. They allege in their complaint that Marcus B. Winchester and John Overton jointly owned the north half of Spanish grant, No. 2337, in township 6 north, ranges 9 and 10 east, and fronting on the west bank of the Mississippi river, in Crittenden county, Arkansas, just opposite the upper part of the city of Memphis; that Winchester died in the year 1856, leaving a last will and testament; that the land had been divided between Overton and the devisees of Winchester and their representatives, to whom the interest of Winchester belongs; and that the riparian rights pertaining to the land, by consent, were not divided, but remain the joint property of appellants. They further allege, that about the 8th day of November, 1872; the Memphis & Little Rock Railroad Company, without their consent, entered upon the land and constructed its railroad across the entire tract, until it reached the Mississippi river; that in constructing its railroad the company excavated and filled and otherwise changed the face of the tract, and cut timber, and took earth, therefrom, and used the same, and had thereby greatly impaired the use and reduced the value of the land; and that the place where the tract extends to the river is on land set apart, in the division, to Overton. They further state, that on the 8th of May, -1872, one Green-law, who was the manager, superintendent, or chief executive officer of the Memphis & Little Rock Railroad Company, leased from Overton his undivided one-half interest in the ferry privilege belonging to the land, so far only as to allow Greenlaw to run a transfer boat between the eastern terminus of the railroad and Memphis, for the purpose of transferring freight and passenger cars, with their freight and cargoes. That as soon as he obtained the lease he began running a transfer boat under it, transferring the cars of the railroad company, with their contents, to and from the Tennessee and Arkansas shores, the point of landing on the Arkansas shore being at the place where the railroad touched the river on the land of appellants; and that the railroad company had constructed and maintained an inclined railway, leading from the top of the bank of the river into the river, and other appurtenances for transferring cars to and from the transfer boats. That the Memphis & Little Rock Railroad Company and appellee had constructed side tracks, buildings, structures and appurtenances, both on the banks and along the margin of the river. That the side tracks ran up and down the river front, the one way upon the land set apart to Overton, and the other upon the land allotted in the division to the devisees and representatives of Winchester, for several hundred yards. That the railroad companies had moored and anchored a wharf boat in the river in front of the land of appellants, and had securely fastened the same to the shore; and had constructed or located an elevator on the wharf-boat for the handling of the freight transported by appellee; and had' built along the margin of the river and upon its bank a platform to be used in connection with the wharf-boat and elevator, for the loading and unloading of cars. That Greenlaw continued to run the transfer boat for several years, and so long as he remained the managing officer of the railroad company. That afterwards and when he had ceased tobe the managing officer of the Memphis & Little Rock Railroad Company the transfer boat, and his right to run the same, were transferred to the last mentioned com- ' pany, which continued to run it, transporting thereon its cars, with their freight, cargoes and passengers, between the Arkansas and Tennessee shores, to and fro, until it was succeeded by appellee, which, claiming it had acquired all the property of that company, and had succeeded to its rights, had since then been using and operating its railroad upon and across the lands of appellants and the side tracks, switches and buildings thereon, and had continued to run the transfer boat, and was then running it in the same manner it h”ad been run by its predecessors. That neither the Memphis & Little Rock Railroad Company, nor the appellee, nor any one else, had ever caused the land, or any part of it, to be lawfully -condemned, for the uses for which it had been appropriated, or acquired the right to go upon, or pass over, or use the land, or the riparian rights thereto belonging, or paid anything whatever for the use of the riparian rights or the land, or the rights and appurtenances belonging thereto, or for damages, or the timber and earth taken therefrom, or for incidental injuries to the land. The prayer of the complaint was, that an injunction be issued restraining appellee from further occupying or using the land or any part of it, and the riparian rights and privileges thereto belonging, and from running the transfer boat, perpetually, or until it pay just compensation therefor to be fixed by the court; and that the amount due appellants on all the grounds and accounts set out in their complaint, from the appellee and its predecessor, might be ascertained by proper accounts; and that appellants have a decree therefor and execution of such decree, and all other just, proper and general relief.
Appellee answered the complaint and demurred thereto, first, because the appellants had not the legal capacity to sue on account of the matters stated therein, and second, because it did not state facts sufficient to constitute a cause of action; denied it was liable to appellants in any manner on account of what is alleged therein; stated the reasons why it was not liable and pleaded the statute of limitations in bar of the right to maintain the action.
Depositions of witnesses and agreements of the parties as to facts were filed and submitted to the court. From this evidence we find the following facts: The Memphis & Little Rock Railroad Company was chartered by an act of the general assembly of this State, approved January II, 1853. The company was formed soon after the act incorporating it was passed. On the 1st of May, i860, it conveyed to Tate and others, its charter, franchises, road, road-bed, right of way and all its other property, in trust, to secure the payment of its certain bonds,mentioned in the conveyance, with power to sell the property on default by the company. Af-terwards on the 1st of March, 1871, it executed a second deed of trust, conveying all its property and franchises to Henry F. Vail, in trust for the holders of bonds secured thereby, subject to the first deed of trust. Default having been made in the payments due on the bonds secured by the latter deed of trust, Vail, the trustee, in execution of the power vested in him, sold and conveyed the property described therein, on the 17th of March, 1873, to Stillman Witt. Afterwards, on the 29th of March, 1873, Witt made a declaration showing for whom he had purchased, and that he held in trust for them. On the 9th of December following, the grantor and grantees in the declaration of trust so made by Witt, organized a company called the Memphis & Little Rock Railway Company, to which the property sold by Vail was conveyed. This railway company issued its bonds, and to secure the same, by a deed of trust, conveyed all the property, privileges and franchises so acquired by it to trustees, in trust for its bondholders. Both of these companies made default in the payments due on the bonds secured by the deeds of trust executed by them. Afterwarns a suit in equity was instituted by the trustees against the two companies, to foreclose these deeds of trust, in which a final decree was rendered ordering a sale of the property described in the same; and a sale thereof was made and confirmed, and a conveyance of the same was made to certain persons in trust for the holders of certain bonds. On April 28, 1877, the holders of these bonds formed the appellee, the Memphis & Little Rock Railroad Company, as reorganized. After-wards, on the 30th day of April, 1877, the last named trustees conveyed the charter, franchises and property vested in them to the appellee.
It is conceded that the tract of land described in the complaint was acquired by Overton and Winchester as early as the year 1846, and that they held possession of it jointly, to the death of Winchester; that Winchester died in 1856, leaving a will;' that William Vance was appointed and qual-fied as the executor of such will; that Overton and the executor and devisees of Winchester held joint possession after that time and until the partition mentioned in the complaint, which was made in the manner stated in the complaint at the April term, 1873, of the circuit court of Critten-den county; and that since such partition Overton and Winchester’s devisees and heirs have held possession in severalty of the land set apart to them, and, jointly, of the riparian rights belonging to the whole tract of land, except in so far as the appellee and its predecessors, the Memphis & Little Rock Railroad Company and the Memphis & Little Rock Railway Company, have held and possessed parts of the same; and that Vance has never been discharged, but is still acting as executor of Winchester’s will.
On the 23rd of May, 1856, the Memphis & Hopefield Real Estate Stock Association, in consideration that the Memphis & Little Rock Railroad Company would locate its eastern terminus and depot on the land given, gave and conveyed to it twenty acres of ground lying four hundred and twenty-three feet west of the Mississippi river, opposite Memphis, in what is known as the town site of Hopefield, in Crittenden county in this State. The Memphis & Hopefield Real Estate Stock Association agreed to permit the railroad company to use the land between the river and the twenty acres for the purpose of discharging and receiving freight, passengers and the like, but reserved to itself the right of landing steamboats, ferryboats and other water crafts on or at the same. Under this agreement the railroad company located its eastern terminus and built its depot on this twenty acres of ground in the year 1857 or 1858. Afterwards, a sand bar having formed in the river in front of Hopefield, and prevented the landing of boats near the terminus of the railroad, the company constructed, a track up the bank of the river from its main track in Hopefield to a point above and on the land of appellants, at or near a place on the river where the water was deep and there was a good landing for steamboats, where it built a depot. The track running up the bank of the river was used until 1859, when it was taken up and the track was changed and laid through appellants’ land, in the locality of the track used by the appellee when this suit was begun. This last mentioned track was used until the war came on. It was then torn up by the military authorities of the United States. After the war the railroad company again laid iron on the track running up the bank of the river to the depot before mentioned, which was used until about the year 1873 or 1874, when the iron on it was taken up and put back by the railroad company on the track running through the land of appellants, which was used when this suit was commenced, and afterwards until the land caved into the river. At the same time the iron was moved the railroad abandoned the land covered by the track running up the bank of the river to the owner. The depot on the land, however, was continuously used from about the year 1866 by the appellee and its predecessors until the land on which it stood caved into the river.
It is conceded that tracks and switches were laid on appellants’ land as stated in their complaint. The switches were not placed until about the year 1873 or 1874, and were changed from time to time as the railroad company saw proper. About the 8th of November, 1872, William B. Greenlaw, who was the managing officer of the Memphis & Little Rock Railroad Company, leased for one year from John Overton, one of the appellants'; his one-half interest in the right to run a transfer boat across the river from the land of appellants, for the purpose of transferring the cars of railroad companies to and from the Tennessee shore. Thereupon an inclined railway was built from the tracks of the railroad to the river and Greenlaw ran a transfer boat in connection with it, under his lease, and received from it cars and transferred them to the Tennessee side, and received cars on the Tennessee bank and transferred them to the Arkansas shore and discharged them on the inclined railway. The inclined railway in existence and use at the commencement of this suit was built -in 1874. The lease was renewed from year to year, and the boat continued to run under it until Greenlaw transferred his right to the Memphis SJLittle Rock Railway Company, under an arrangement made about the 8th of February, 1875, and then the railway company ran the boat just as Greenlaw had done, until appellee succeeded to its rights, and since appellee so succeeded it has run a transfer boat in the same way. The evidence, however,, does not show that either one of them ever secured a lease. Appellee commenced operating the railroad'and transfer boat about the 1st of May, 1877.
Since the commencement of this action the bank of the Mississippi river in front of the land has caved to such an extent that not one of the railroad tracks, nor one of the buildings or structures of any kind of appellee remains now where they were then. But the locality on which every track and every building and structure on the land claimed by the appellants was then situated is now a part of the bed of the Mississippi river. As the banks caved and washed into the river appellee, since the year 1881, has moved back its tracks and buildings so as to keep them on the land adjacent to the river bank, but outside the caving.
It is further conceded that no application has ever been made to the court by parties owning the land in question and claiming the riparian rights pertaining thereto, for compensation therefor; and that no compensation has ever been paid to appellants, or any one of them, or any of their devisors or ancestors for the land taken and appropriated, or for the use of the inclined railway, or the land upon which it is built, or for running the transfer boat; and that the appel-lee and its predecessors have never made application to the courts for the condemnation of the land taken or used by them, or for the condemnation of the riparian rights they have appropriated; nor does the evidence show that the ap-pellee or its predecessors ever procured the right of way over appellants’ land by their, or their devisors', or ancestors’, or grantors’ express agreement or consent.
Agreements in writing made and entered into by the parties to the action were filed, by which it was agreed that each of them should have the benefit of the foregoing facts as to the caving of the banks of the Mississippi river and the removal of appellee’s tracks and buildings, and that no amendment of the pleadings of either party should be required in order to present them, and that the same relief should be granted to either party as if the facts were formally set out in his or their pleadings; and that testimony as to damages of all kinds, including damages for taking timber, making excavations, as well as for road-bed taken and the riparian rights claimed, and all testimony of like character, might be deferred until the hearing, on the merits, of the rights of the parties; and that the testimony might be thereafter taken, if desired, upon a reference to a master; and that all questions of law were reserved for argument and adjudication — each party being at liberty then to claim any legal rights that belong to such party, or deny the legal rights set up by the other.
Upon a final hearing the complaint was dismissed by the court without prejudice to the appellants’ bringing an action at law upon the same cause of action set up therein; and plaintiffs appealed.
As to the course which the courts should pursue in cases where the plaintiffs have adopted the wrong proceeding and no motion to correct the error has been made, the decisions of this court are not entirely consistent. In Phelps v. Jackson, 27 Ark., 591, it is said: “It is an old and familiar rule of chancery practice that, if the complainant has a plain and ample remedy in a court of law, his bill cannot be entertained but must be dismissed for the want of equity. The code, however, has changed this practice, and allows a plaintiff who has committed an error as to the kind of proceedings adopted, to change them and transfer the action to the proper docket; but this change and transfer must be done by the plaintiff. If the error is discovered before the answer is filed, it may be done without motion; if afterwards, on motion, in court, The transcript in this case does not show that the plaintiffs in the court below made any effort to have the proceedings changed, It is within the province of the court to make the transfer, but it is not bound to exercise this discretion, unless asked to do so by the party desiring it. When the bill has been examined, and judgment pronounced of ‘no equity in it,’ unless the party complaining makes some effort to have the proceeding changed to the proper forum, it is the duty of the chancellor to dismiss the bill.”
The same rule of practice was laid down in Berry v. Hardin, 28 Ark., 458; Hendricks v. Keese, 32 Ark., 714; Crawford v. Carson, 35 Ark., 583, and in Little Rock & Fort Smith R. R. Co., v. Perry, 37 Ark., 164.
In Apperson v. Moore, 30 Ark., 56, which was a suit in equity on the mortgage of a future crop, executed prior to the act of February 1 ith, 1875, which made mortgages on crops to be planted valid, it was held that the lien of a mortgage on an unplanted crop attaches, in equity, as soon as the subject of the mortgage comes into existence, and could be enforced, in a proceeding to foreclose, against the mortgagor and those holding under him with record notice. In Tomlinson v. Greenfield, 31 Ark., 557, which was an action on the law side of the trial court, it was held, that a mortgage on an un-planted crop, executed before the act of February nth, 1875, became a law, was void.
Miller v. Nieman, 27 Ark., 233 ; Chapline v. Holmes, Ib., 414; Sale v. McLean, 29 Ark., 612; Crane v. Randolph, 30 Ark., 579; Lawrence v. Zimpleman, 37 Ark., 643; Bryan v. Winburn, 43 Ark., 32, and Matthews v. Marks, 44 Ark., 436, were actions to quiet title to lands. In these cases it was held that, in order to maintain such actions, the plaintiff must show he is in possession, or that the land is wild or unimproved, or his-title is an equitable one, and that if he fails to do so his action should be dismissed. “For,” •says the court, ‘ ‘when the title is a purely legal. one and the defendant is in possession, the remedy at law is plain, adequate and complete, and an action of ejectment cannot be maintained under the guise of a bill in chancery.” In these cases, however, the relief sought was purely equitable and the plaintiffs failed to show the condition on which it could be granted.
In Talbot v. Wilkins, 31 Ark., 411; Moss v. Adams, 32 Ark., 562; Hammond v. Harper, 39 Ark., 248; Dorsey County v. Whitehead, 47 Ark., 208, and Catchings v. Harcrow, 49 Ark., 20, it was held that an error as to the kind of proceedings adopted is not a good cause for dismissal, but only for a transfer of the cause to the proper docket; and that where no motion is made to correct the error, the court may either transfer on its own motion, or may proceed to a trial upon its merits.
In using appellants’ land as a right of way for a railroad the company taking it acted without the authority of law. It is conceded that the land for which appellants ask for compensation in their complaint was first taken and appropriated to the use of the railroad company in 1859, and was after-wards abandoned, and was again taken and appropriated in 1873 or 1874. It is further conceded that no proceedings were ever instituted to condemn it for a right of way, and that no compensation has ever been made for it. There is no evidence that appellee, or either of its predecessors, ever obtained it by agreement from its owners. So it is clear that the company which appropriated it to its use in 1873 or 1874 acquired no right to it. But it is not clear which appropriated it in that year, for all the property of the Memphis and Little Rock Railroad Company was sold and conveyed on the 17th of March, 1873, and the Memphis and Little Rock Railway Company was organized on the 6th of December following, and bechme the owner of the railroad and other property of the Memphis and Little Rock Railroad Company. But be this as it may, if the first company appropriated it, the second acquired no better title or right to it than the first had. The second could only take what its predecessor had a right to convey; it took subject to the claims of the owners, and subject to their right to enforce them in the manner prescribed by law.
But the application for injunctive relief must be seasonably made. As said in Midland Railway Company v. Smith, 15 North Eastern Reporter, 257 : “A land owner who 'stands by’ and acquiesces until a railroad company has expended its money, and constructed its track across his land, so that the track at that point becomes a part of its line, will not thereafter be entitled to invoke the aid of a court of equity in arresting an enterprise in which the public, as well as the railroad company, have an interest. Upon considerations of public policy, as well as recognized principles of justice, courts of equity will refuse to interfere after a railroad corporation has entered upon land with the consent or by the license of the owner, and has expended money in the construction of its road upon the strength of such license or consent; or where the land owner has acquiesced in the use of his land by the railroad company until the public interest or convenience has become involved.” High on Injunctions, sec. 643, and cases cited; Hentz v. Long Island R. R. Co., 13 Barb., 655; Erie R. R. Co. v. D., L. & W. and M. & E. R. R. Co., 21 N. J. Eq., 289; Goodwin v. Cincinnati and Whitewater Canal Co., 18 Ohio St., 169; Bassett v. Company, 47 N. H., 439; Traphagen v. Mayor and Aldermen of Jersey City, 29 N. J. Eq., 206.
The title acquired by a railroad company in land legally appropriated for right of way and paid for is denominated an easement, but it is an easement in the nature of a fee, and, under the statutes of this State, is practically a title to the fee in the land taken. Mansfield’s Digest, sec. 5463; 2 Wood Railway Law, 770. In the assessment of damages the owner is entitled to the full value of his land. When, therefore, he elects to demand compensation for land necessarily used in the construction of a railroad he assumes a relation to the railroad company like unto that of a vendor who sells his land on time and retains the title and agrees to convey it when the purchase money is paid. He does not part with the title until the compensation is made. The amount to be paid for the land used as a right of way, though called damages or compensation, is in its nature the price of the land taken. If it had been sold to an individual on time the vendor would have a lien on it for the unpaid purchase money. Equity in that case would treat the unpaid purchase money as a lien on the land sold and enforce it, on the ground it would be unconscionable to allow the vendee to retain the property voluntarily sold to him and not pay its price. This doctrine applies with greater force when the property is seized in in vitiim by a corporation. It is strengthened by that “imperious constitutional mandate,” which prohibits property from being taken without just compensation being first made. If equity, contrary to its general rule, when property is being taken by a railroad corporation without making just compensation, will interfere to protect him, it certainly would and does not withhold its hand in the enforcement of his claim upon the property for the unpaid purchase price, when his right to pay for it as a constitutional condition precedent to its becoming the property of the corporation still exists in all its original vigor. It is obvious that a court of equity will, in a proper proceeding, so long as the original owner holds the title in the soil, enforce the claim of the owner against the property taken as.it does a vendor’s lien. Evans v. The M. I. & N. Ry. Co., 64 Mo., 453; Provolt v. The C., R. I. & P. R. R. Co., 69 Mo., 640; Same v. Same, 57 Mo., 262-264; Drury v. Midland R. R., 127 Mass., 576; Mims v. M. V. & W. R. R. Co., 3 Kelly, 340-342; Gillison v. S. & C. R. R. Co., 7 S. C., 180; Kittell v. Railroad Co., 56 Vt., 109; Adams v. Railroad Co., 57 Vt., 248; Pfeifer v. The S. & F. L. R. R. Co., 18 Wis., 164; Mills on Eminent Domain, [2d Ed.] 140-144.
In the Western Pennsylvania Railroad Company v. Johnston, 59 Penn. St., 295, the Northwestern Railroad Company appropriated the property of one Johnston for the purposes of its road. For the taking and occupying his land Johnston recovered five hundred dollars. Under a mortgage of its whole road and all its rights, all its property was sold and purchased by one Hirst in trust for its bondholders. The bondholders were incorporated under the name of the Western Pennsylvania Railroad Company, under an act of the assembly; and Hirst conveyed the property and franchises of the Northwestern Pennsylvania Railroad Company to the new company. The act incorporating the new company provided: ‘ ‘That all unpaid damages which" have accrued to the land owners by reason of the original construction of said road, shall remain forever, until paid, a lien upon said road.’' Mr. Justice Agnew, in discussing the liability of the new company for property taken by the old company, for the court said: “But this is not enough to determine the case, for it remains to be seen whether the damages can be recovered from the Western Pennsylvania Railroad Company. Perhaps it would be sufficient for this case to say that the Western Pennsylvania Railroad Company accepted a charter ’ repealing the charter of the N orth-western Railroad Company, and providing that the damages of the land owners remaining unpaid should remain a lien on the road till paid, and, therefore, that the legislature clearly intended that they should be paid by the new company which, under the deed from Plirst and under its charter, is possessed of all- the rights and interests of the old company. But the case rests upon other grounds. The plaintiff, who has never parted with his rights, stands on the higher fundamental right of property — that it shall be taken and used by no one for the public purpose of a railroad without just compensation being made to him. Monongahela Nav. Co. v. Coons, 6 W. & S., 114; Yost’s Report, 5 Harris, 524; Borough of Harrisburgh v. Crangle, 3 W. & S., 460. This is a sacred constitutional right not to be spirited away by refinement. If, therefore, the original occupant has so managed its cards as to escape payment until it has divested itself of its interest by any form of alienation, its alienee, mediate or immediate, if it would enjoy the uncompensated right, must pay the price of it, unless it can show an equity growing out of the conduct of the owner of the soil which would estop him. It must not be forgotten we are treating of a case where the owner has done nothing to divest his right by his own act or alienation, but where the alienee of the original actor stands upon a seizure at law, which must be shown to have conformed to the law in all its steps, in order to deprive the owner of his title. The mortgage was but a mode of alienation of the estate of the mortgagor, but could not operate upon the paramount claim of the land owner over the mortgage interest. This, we have seen is not a mere lien, the judgment in the process of assessment not being the source of his right, but the means only of ascertaining the amount of his claim and of enforcing its payment. It could be extinguished only by payment or release. When the alienees of the Northwestern Railroad Company came into possession, therefore, under their purchase, if at all, they took the interest acquired mm onere. If possession never had been obtained, then clearly they could get it only by payment or security. In law and equity neither they nor any one claiming the interest of the Northwestern Railroad by an act'of eminent domain, subordinated by the law and the constitution to payment as the condition of its exercise, can hold and use the interests thus acquired without compensation. Borough of Harrisburgh v. Crangle, 3 W. & S., 460.”
In Howard v. State, 47 Ark., 431, and Patton v. State, 50 Ark., 53, it was beld by this court, that “a road becomes established as a public highway, by prescription, when the public, with the knowledge of the owner, of the soil, has claimed and continuously exercised the right of using it for a public highway for the period of seven years, unless it was so used by leave, favor or mistake.” In the Patton case it was said, ‘‘the right to a public highway acquired in this manner is based upon adverse possession for the full statutory period of limitation.” The same doctrine applies with equal force to railroads. In both cases the land is taken and appropriated and used as a highway for the public benefit. We know of no reason why the same limitation should not prevail in both cases.
Appellants further insist that they have been damaged by appellee running a transfer boat across the river; and attempt to show that it sometimes transported persons across the river for pay, who were not passengers on its trains. But there is no evidence that appellants, or any of them, ever had a license to keep a public ferry. If they did not,, they had no right to keep a ferry so as to charge a compensation for transporting persons or property over the river; and could not have been injured by the running of the transfer-boat, and can claim nothing on that account. They are, however, entitled to the damages they have suffered by reason of their riparian rights having become less valuable by reason of appellee’s tracks, buildings, structures, and other improvements, as held in Little Rock & Fort Smith Ry. v. McGehee, 41 Ark., 202; Mansfield’s Digest, sec. 3311.
But appellee contends ‘‘that, after lands are partitioned, or conveyed in separate parcels, riparian rights cannot remain in common; because these are a part of the land itself, and each parcel of land bounded by water must necessarily have its riparian rights attached to it as an essential part of. its very being,” and that the land in question having been divided between appellants, they cannot claim and hold the riparian rights pertaining thereto in common, and bring a joint action on account of an infringement of the same, or jointly maintain this action in respect to the infringement of such rights. On the other hand appellants say that the land was divided between them, without reference to the riparian rights pertaining to the land, and it was agreed that these rights should remain undivided and be held in common as if the land had not been divided, and that they had ever remained and were their joint property. If they wish to treat these rights as their common property we see no reason why appellee can complain. It cannot be injured thereby, and it is a matter which concerns appellants and no one else.
Under the agreement of appellants and appellee, both parties are entitled to the benefit of the facts as to the caving of the banks of the river and the removal of appellee’s tracks and buildings on account thereof. Appellants are entitled to damages or compensation for their land, which ap-.pellee has appropriated since the commencement of this action, and for so much of the land as it has taken during the pendancy of this cause and now uses in the operation of its railroad, they are entitled to an order of injunction restraining appellee from using it until compensation therefor is made. We think appellants are entitled to this order because of the pendancy of this action. While it has been pending and appellants have been asking for an injunction restraining appellee from using their land for railroad purposes until compensation should be made, it cannot be said that they stood by and acquiesced in the use of it. Before the enforcement of the order, however, appellee should be allowed a reasonable time after the damages are assessed in which to make the compensation.
Under the agreement of the parties appellee is entitled to the benefit of the statute of limitations in all cases where the recovery of the relief sought by appellants is barred thereby. On account of the numerous appellants and because this cause will have to be remanded we will not attempt to ascertain whether any or how many of them are barred.
It is impossible to ascertain from the evidence before us what damages or compensation the appellants are entitled to. It is evident that they are entitled to some. It was agreed between the parties that the taking of the testimony as to damages of all kinds might be deferred until the final hearing, and that it might be thereafter taken, if desired, upon reference to a master. For this reason, doubtless, it was not taken.
The court erred in dismissing the appellants’ complaint. The judgment of the circuit court is, therefore, reversed, and this cause is remanded for further proceedings not inconsistent with this opinion.