111 P. 746 | Idaho | 1910
This is an application for a writ of prohibition against the judge of the district court of the first judicial district to restrain and prohibit him trying a case pending in his court entitled Chicago, Milwaukee & St. Paul Ry. Co. of Idaho, a corporation, plaintiff, vs. E. E. Pyle and Aletha Pyle, his wife, and the Northern Pacific Ry. Co., a corporation, defendants. The various pleadings, proceedings and orders had and made in the case are set out in full in plaintiff’s
It appears that on the 9th day of March, 1908, the Chicago, Milwaukee & St. Paul Ry. Co. of Idaho, a corporation — which for convenience we will hereafter designate as the Milwaukee Co. — instituted an action in the district court in and for Shoshone county against the plaintiffs herein and the Northern Pacific Ry. Co., as defendants, whereby the plaintiff sought to condemn a strip of land 200 feet wide across certain lots and fractional lots situated in Shoshone county and occupied and claimed by the defendants Pyle, and to which the Northern Pacific Ry. Co. also claimed the title. Summons appears to have been issued and served in conformity with the provisions of sec. 5217, Rev. Codes, and within the time prescribed by the summons the defendants Pyle appeared and demurred. The Northern Pacific Co. did not appear. The demurrer by the Pyles was sustained and an amended complaint was filed and the Pyles thereupon answered. By their answer they claimed the fee simple title to the land and the exclusive possession and right of possession thereof, and denied that the use to which the Milwaukee Co. desired to condemn the property was a public use, and, further, set up the value of the property sought to be taken and the damage that the owners would sustain by reason of condemnation. The Milwaukee Co. thereafter made application under the provisions of sec. 5226 for the appointment of commissioners to assess and determine the damages that the defendants would sustain by reason of the condemnation. After a hearing on the objections and protest made by the defendants Pyle, and in due course of proceedings, the objections were overruled and commissioners were appointed. Subsequent to the appointment of the commissioners, and after giving due notice to all the parties defendant, as required by the provisions of sec. 5226, the commissioners met for the purpose of hearing the evidence and taking proofs and assessing the damages, and the Milwaukee Co. was represented by its counsel, Cullen & Dudley, and the defendants Pyle were represented by C. W. Beale and James A. Wayne; the Northern Pacific, which had never
“1. That the value of the separate estate and interest of defendants E. E. Pyle and Aletha J. Pyle in and to the land sought to be condemned and appropriated by plaintiff herein for its right of way, situated in Lot 10 of Section 5, Township 45 North, Eange 3 East, B. M., being 5.3 acres, with the improvements thereon, is $3,300.00.
“2. That the value of the separate estate and interest of defendants E. E. Pyle and Aletha J. Pyle in and to the land sought to be condemned and appropriated by plaintiff herein for its right of way, situated in Lot 1 of Section 8 of said township and range aforesaid, being one (1) acre of land, is $150.00.
“3. That the damages which the said defendants E. E. Pyle and Aletha J. Pyle will suffer by reason of such condemnation, aside from the value of the land and improvements aforesaid, is $5,000.00.
“4. That the damages which will accrue to the portion of land in lot 10 of section 5 aforesaid, which is not sought to be condemned, by reason of its severance from the portion sought to be condemned, is $100.00, and that the damages sustained by defendants E. E. Pyle and Aletha J. Pyle thereby is $100.00.
“5. That the damages which will accrue to the portion of land in Lot 1 of Section 8 aforesaid, which is not sought to be condemned, by reason of its severance from the portion sought to be condemned, is $150.00, and that the damages sustained by defendants E. E. Pyle and Aletha J. Pyle thereby, is $150.00.
“6. That the defendants E. E. Pyle and Aletha J. Pyle, by reason of the condemnation and appropriation of said land will sustain damages by loss of their spring and domestic water supply, in the sum of $500.00.
“7. That the defendants E. E. Pyle and Aletha J. Pyle, by reason of the condemnation and appropriation of said land will sustain damages by being cut off from the waters of the*679 St. Joe river, for tbe purpose of watering their stock and horses, in the sum of $150.00.
‘ ‘ 8. That by reason of the condemnation and appropriation of said lands that the timber standing and growing on the remaining portions of said land not sought to be condemned, will be endangered and decreased in value on account of the increased danger of loss of said timber by fires that may be ignited by the operation and maintenance of said railroad over said strip of land and that the defendants E. É. Pyle and Aletha J. Pyle will thereby suffer damages in the sum of $150.00.
“9. That the cost of a good and sufficient fence along the line of said railway is $120.00, and the cost of cattle guards where fences may cross the line of said railroad is $40.00.
“10. That the portion of said land above described not sought to be condemned will be specially and directly benefited by the construction of said line of railway as proposed by the plaintiff in the sum of $-.
“11. That the Northern Pacific Railway Company, code-fendant herein having been duly and regularly served with notice thereof, appeared not and no evidence, either oral or documentary, was introduced on its behalf.
‘ ‘ WHEREFORE, we, the undersigned commissioners, find from the foregoing that the damages which will be sustained by the defendants E. E. Pyle and Aletha J. Pyle, by reason of the condemnation and appropriation of said lands by the plaintiff herein as described in the amended complaint, are $9,500.00.
“And we further find that the damages which will be sustained by the codefendant, Northern Pacific Railway Company, by reason of the condemnation and appropriation of said lands as aforesaid will be in no sum whatever.”
After the filing of the report of the commissioners, and on the first of May, 1908, the Northern Pacific Co. made an ex parte application to the judge of the district court for an order prohibiting and restraining the clerk from paying to the defendants Pyle the sum of $9,200 of the award- made by the commissioners until such time as the respective rights of the defendants Pyle and the Northern Pacific'Ry. Co. in
By this time, and through these several proceedings, the Milwaukee Co. had succeeded in procuring possession of the land sought to be condemned and of ousting and ejecting the defendants Pyle therefrom .without paying to the Pyles any compensation whatever, as required by both the constitution and statute of the state. The Pyles have expressed their willingness to accept, and sought in every manner to procure the sum awarded to them as damages in the manner and method prescribed by sec. 5226, but at all times without avail. After all these proceedings, and upon an order of the district court, the Northern Pacific Co. appeared in the condemnation suit and answered and set up its claim to title in and to the
It is claimed by the petitioners that after the commissioners, who were appointed on the instance and application of the Milwaukee Co., had heard the evidence and made their findings and award and the company paid the award to the defendants, or into court for the defendants, and the defendants were willing to receive and accept the same as just and fair compensation for the property to be taken, the litigation was thereupon ended, and that no subsequent trial as to the question of damages can be had by the company seeking the condemnation. It is insisted by the petitioners that the court has no jurisdiction to proceed further to a trial of the case under such circumstances, and that to do so would be a violation of the purpose and intent of the condemnation statute of this state, and an excess of jurisdiction.
Now, in the first place, it is clear, beyond doubt, that the Milwaukee Co. seeking to condemn this land had no right whatever to enter upon and take possession of the premises until it either paid “to the defendants” the amount assessed and found by the commissioners as damages, or in case the defendants refused to receive the same, then paid the sum “to the clerk of the court to abide the result of the action.” This is the express provision of the statute as embodied in the latter part of sec. 5226. (See, also, Portneuf Irr. Co. v. Budge, 16 Ida. 116, 100 Pac. 1046.)
The real and decisive question, however, with which we are confronted in this case is that as to whether a condemn
Under the constitution, see. 14, art. 1, private property may not be taken for public use until after a just compensation has been ascertained and paid therefor. Now, the statute, — in particular secs. 5220 and 5221, — provides for ascertaining and assessing the damages which the property owner will sustain by reason of the taking of his property, and this may be done before a jury, and the right to have a jury trial is common to both the condemning party or company and the land owner. This method, however, is not as speedy and summary as may sometimes be desired, and so the legislature incorporated a proviso in sec. 5226 to the effect that at any time after the commencement of the proceedings in the district court the condemning party may, upon ten days’ notice to the adverse party, apply for the appointment of commissioners to assess and determine the damages, and that after the making of such an assessment and filing of the report, if the plaintiff sees fit to pay to the defendant the amount assessed and found by said commissioners as damages or, in case the defendant refuse to receive the same, deposits the amount with the clerk of the court to abide the result of the action, the plaintiff may have possession of the premises. It was held by this court in Portneuf Irr. Co. v. Budge that the provisions of sec. 5226 are constitutional, and when complied with amount to an ascertainment “in a manner prescribed by law” of the just compensation to which the land owner is entitled. And so the court held in that case that when damages have been ascertained by commissioners in accordance with this proviso contained in sec. 5226 and the sum assessed
Subd. 6, sec. 5216, requires that in order for a complaint in condemnation to state a good cause of action, it must contain “in all cases where the owner of the lands sought to be taken resides in the county in which such lands are situated, a statement that the plaintiff has sought, in good faith, to purchase the lands so sought to be taken, or settle with the owner for the damages which might result to his property from the taking thereof, and was unable to make any reasonable bargain therefor, or settlement of such damages.” This is required on the theory that if the parties can make a contract themselves and agree on the value of the property and the damages sustained, there will be no occasion for the intervention of the court. If no such agreement can be made, then the parties resort to the courts.
When the Milwaukee Co. commenced its action, it might have proceeded to trial before a jury in the usual and ordinary manner. This it did not see fit to do. On the contrary, it applied for, and over the protests and objections of the defendants secured, the appointment of commissioners. This the statúte gave it a right to do. After the assessment of damages by the commissioners the company was not obliged to pay the award if it was dissatisfied with the amount assessed, but might have gone before the court and a jury and had the damages assessed in the usual way. The payment of the award made by the commissioners was wholly voluntary on the part of the plaintiff. As soon as the payment was made, which was voluntary on the part of the plaintiff, and after it was voluntarily accepted by the defendants on their part, this constituted an agreement and contract and closed the transaction, and entitled the plaintiff to its decree of condemnation without any further proceedings. This seems to
Two options' with reference to the assessment of damages are given to the parties by the provisions of sec. 5226: First, the plaintiff may apply for the appointment of commissioners, and if satisfied with the award made and desirous of taking immediate possession of the premises, may pay that sum to the defendant, — or if the defendant refuses to accept it, then to the clerk, — and thereupon take possession of the property. Second, if the defendants are satisfied with the award, they may accept it and thus terminate the transaction, or if dissatisfied with the award, they have the option of a trial by jury before the court for the assessment of the damages they will sustain. It has already been held by this court that the use, necessity and all the requirements of sec. 5213, Rev. Codes, should be tried and found by the court before commissioners are appointed at all. (Portneuf Irr. Co. v. Budge, supra.)
The only thing left in this case for the court to do was to order the money paid by the Milwaukee Co. to the clerk delivered over to the defendants Pyle and to enter a decree against the Pyles condemning the property to the use for which it was sought.
It is urged, however, that no authority is conferred by the statute to enter a decree or a final judgment on the award of commissioners, and that consequently no such authority exists. To our minds, there are two answers to this, either one of which is sufficient: First, if the money is paid by the plaintiff and accepted by the defendant, a decree following upon this action taken by the respective parties will be in substance a decree by consent or confession and will come as fully within the purview of the statute as if the case had gone to trial before a jury and judgment and decree had been entered on the verdict. Second, the statute, see. 5226, confers all the juris-® diction necessary to a hearing and assessment of damages, and while it does not specifically point out the manner of entering judgment in a case where the award is accepted, we think all the means necessary to carry into effect the proceedings had is conferred by the general statute, sec. 3925, which reads as follows:
“When jurisdiction is, by this code or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of the jurisdiction if the course of proceedings be not specially pointed out by this code, or the statute, any suitable process or mode of proceeding may be adopted which may appear most, conformable to the spirit of this code.”
Petition for rehearing denied.