113 Mo. 132 | Mo. | 1892
This was a suit to restrain the defendant from entering upon and constructing a railroad over a tract of land owned by the plaintiffs. The circuit court sustained the demurrer to the amended petition, and the plaintiffs appealed from a judgment entered thereon.
There are many things stated in the amended petition which are irrelevant to any question of law raised on this appeal, and which need not be mentioned.
This suit was commenced on the eleventh of March, 1887. According to the amended petition, which was filed in October, 1888, the Oak Hill & Carondelet Railway Company is a corporation organized
On the eighth of October, 1886, the railroad company commenced proceedings to condemn a right of way over various parcels of land, and among others over a tract of twenty-four acres owned by the plaintiffs. Commissioners to assess damages were appointed under the statute, and they made report to the circuit court on the twenty-second of November, 1886. It does not appear what amount they allowed the plaintiffs, but it is alleged that the railroad company, on the same day, paid the amount awarded to the plaintiffs into court. On the second of December, 1886, after the report had been filed and notice thereof had been given to the plaintiffs, they filed exceptions thereto, one of these exceptions being that the damages had not been assessed by a jury. The exceptions were sustained and the report of the commissioners set aside and a new appraisement awarded on the twenty-seventh of the last named month. At the time of filing the amended petition in this case, there had been no other or further assessment of damages.
The amended petition states further that the defendants entered upon said land and built a fence over and across the same, and were threatening and about to construct the railroad thereon at the time this suit was commenced, the eleventh of March, 1887; that after the institution of this suit the defendant entered and constructed the railroad on and over the land. The amended petition prays for a mandatory injunction.
From this statement of the facts it will be seen that it does appear whether the railroad company
Section 896 provides that this report may be reviewed upon exceptions filed within ten days after notice of the filing of the same, and then goes on to say, “and the court shall make such order thereon as right and justice may require, and may order a new appraisement, upon good cause shown. Such new appraisement shall, at the request of either party, be made by a jury, under the supervision of the court, as in ordinary cases of inquiry of damages; but, notwithstanding such exceptions, such company may
The statute itself is free from difficulty or doubt. By its plain terms the condemning company may pay the amount awarded by the commissioners into court, and upon making such payment the company may enter into possession and proceed to construct the road. The amount awarded by the commissioners being paid into court for the landowner, the fact that exceptions are filed by either party and allowed, or even a jury trial awarded, can only affect the amount of the compensation, and does not deprive the company of the right still to proceed with the work. The first question which we have to determine is, therefore, whether the statute violates the constitution in so far as it allows the condemning company to take possession before the amount of compensation is finally fixed and settled. And the first inquiry is, whether it is in this respect in conflict with section 21 of article 2 of the Constitution of 1875, which declares: “That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than, three free-holders, in such manner as may be prescribed by law, and, until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.”
It is to be observed in the first place that this provision is emphatic in two respects: First. The compensation must be ascertained either by a jury or a board of commissioners of not less than three freeholders; and second, the compensation thus ascertained must, be paid to the owner or into court for him before the condemning company can take possession.
The payment of this award to the owner or into- . court for him satisfies the demands of the constitution, and the subsequent proceedings allqwed are statutory . and not constitutional rights. It is true the award of the commissioners was in this case set aside; but it was set aside for the purpose of allowing a new appraisement under the statute, and the fact that it was set-aside for such purpose does not affect the conclusion . before stated, because the same statute gives continued . effect to the first award in this, that the condemning company can pay the amount, thereof into court and . proceed with the construction of the road. The legislature saw that to allow exceptions to the award and new hearings and appeals would result in great delay, .and, to obviate the hardships arising therefrom in
In Railroad v. Brick Co., 85 Mo. 307, the commissioners made their report. The railroad company filed exceptions to the report in due time, and on the same-day paid the amount of the award into court, and then entered into possession of the property. We held that, the company had the right to have the exceptions, filed by it heard, notwithstanding the fact that it entered into possession, and this for the reason that the-statute gave it this right. The statute was then held not to be in conflict with the section of the constitution which we are now considering. That case is, in our opinion, direct authority for the conclusions which we-have thus far expressed in this one.
The case of Railroad v. Railroad, 28 Kan. 453, is also in point here. The constitutional provision there in question provided: “No right of way shall be-appropriated to the use of any corporation until full compensation therefor be first made in money or secured by a deposit of money to the owner.’’ The statute-provided for the assessment of damages by commissioners, and allowed an appeal from their award to the district court. It also declared that the appeal should only affect the amount of compensation, and should not delay the prosecution of the work, upon the company paying to the county treasurer the amount of' damages assessed by the commissioners. The condemning company made the deposit. The other company took an appeal, and then applied for an injunction to restrain the condemning company from entering upon the property. The claim made was that the statute allowing the company to enter upon making a a deposit of the first award was unconstitutional. Says;
We agree that the constitutional guaranties clearly expressed are not to be frittered away by legislatures or by the courts; and such guaranties are to be upheld regardless of. any inconvenience or delay which may arise in consequence of giving them full force and effect. But the legislature is not to be hampered in those matters wherein it is left free to act. That part of the statute which gives the condemning company a right to enter upon 'paying the amount of the first award into court is not, in our opinion, in conflict with section 21, article 2, of the constitution. The payment of the first award into court satisfies the constitution, and the parties are still left free to proceed with the exceptions to a verdict of a jury and an appeal to this court.
We are cited to a number of cases as leading to a different result. In People ex rel. McRoberts, 62 Ill. 38, it was held under the constituton of that state, that the compensation could be ascertained only by a.
2. Thus far we have tried the statute by section 21 of article 2 of the constitution, and it remains to be seen whether it can stand the test of that part of section 4 óf article 12 which declares: “The right of trial by jury shall be held inviolate in all trials for compensation,. where, in the exercise of said right of eminent domain,
This clause appears in the article concerning corporations. It has been before this court on various occasions, and we have uniformity held that it secures to either party a jury trial in the class of cases there mentioned; that the proceeding to condemn may be commenced by the appointment of commissioners, but if either party demands a jury to re-assess the damages the court has no discretion in the matter, and a jury trial must be awarded. Railroad v. Story, 96 Mo. 611; Railroad v. Cudmore, 103 Mo. 635; Bailroad v. Town-Site Co., 103 Mo. 451; Railroad v. Miller, 106 Mo. 458; Railroad v. Shambaugh, 106 Mo. 557. As this clause guarantees a jury trial in the class of cases to which the •one in hand belongs, and as either party is entitled to a jury for the asking at any time within ten days after notice of the filing of the commissioners’ report, it is insisted that the commissioners’ award goes for nothing, in case a jury is demanded, and in such case it is the verdict of the jury alone that can for any purpose be taken as amounting to an assessment of the compensation.
If this clause stood alone as to the matter of which It treats, namely, the ascertainment of the compensation to be paid for the property taken, we should have no hesitancy in adopting the construction just indicated. In that case the legislature would have no power to authorize the condemning company to enter upon or disturb the possession of the landowner until the compensation should be ascertained by a jury and paid to the owner or into court for him. But this ■clause must be understood and construed in connection with section 21 of article 2, before set out. They both relate to the same subject-matter, and must be made to harmonize if that can be done without doing violence
The clause of section 4, article 12 is much more restricted in its application. It applies and applies only to those cases where, in the exercise of the right of eminent domain, an incorporated company is interested for or against the exercise of such right.' Even in these cases the statute may, as it does, provide for an assessment of damages by commissioners in the first instance, either party being entitled to a jury as a matter of right at some stage of the proceedings. Railroad v. Miller, supra. This clause was not designed to overthrow anything said in the prior section found in the bill of rights. Full force is given to each by allowing the legislature to provide for an award by commissioners in the first instance in all cases, and by allowing the legislature to make that award the basis of payment and entry by the condemning corporation, and giving a jury to re-assess the damages in the subsequent proceedings. Construing these two constitutional provisions together, as we must, we must conclude that the legislature has the power to cause the damages to be assessed in the first instance by commissioners, and that it has the power in all cases to
It follows from what has been said the circuit court did not err in sustaining the demurrer, and the judgment thereon is affirmed.