130 Mo. App. 243 | Mo. Ct. App. | 1908
This proceeding was instituted to condemn lands for the right of way of .the plaintiff company. A commission of freeholders was appointed, which assessed the damages of defendant Moldenhauer at $3,100. The report of the commissioners was filed with the clerk of the circuit court of the county where the lands are, and the amount assessed in favor of Moldenhauer was paid by the company to the clerk for him and Moldenhauer took the money. In due time the company filed.exceptions to the award of the commissioners, and these were tried in the circuit court before a jury and Moldenhauers damages assessed at $2,500, or $600 less than the assessment of the commissioners. ' Thereupon the court rendered judgment in favor of Moldenhauer for $2,500, but because he had received the original award of $3,100 and plaintiff had taken possession of the land, ordered that execution be perpétually stayed for said sum of $2,500, but gave
The position taken by defendant’s counsel in his brief is that when the railroad company entered on and appropriated the ground for right of way, and Molden-hauer accepted the damages assessed by the commissioners, the proceedings were at an end and the railroad company had no right to be heard further. Section 1268 of the statutes (B. S. 1899) says exceptions to the report of commissioners may be filed, that the company may proceed to construct its railroad and any subsequent proceedings will affect only the amount of compensation to be allowed the land owner. It is contended said statute violates the constitutional command that until the compensation to the land owner is paid into court for him by the condemning company, the property shall not be disturbed nor his proprietary rights divested. [Mo. Const., art. 2, sec. 21.] The argument is that this constitutional clause, when applied to the facts of the present case, precluded further inquiry into the amount of damages sustained by defendant after the company had paid the money into court for him and taken possession of the land. The Supreme Court has decided to the contrary in many careful opinions, of which we cite these: Rotham v. Railroad, 113 Mo. 132, 138, 20 S. W. 892; Railroad v. Fowler, 113 Mo. 468, 20 S. W. 1069; Id. v. Clark, 119 Mo. 357, 373, 24 S. W. 157; State ex rel. v. Klein,