Treacy v. Elizabethtown, Lexington & Big Sandy Railroad, 85 Ky. 270

Treacy v. Elizabethtown, Lexington & Big Sandy Railroad

85 Ky. 270 | Ky. Ct. App. | 1887

JUDGE BENNETT

delivered the opinion op the court.

This is the second time this proceeding has been in this court. (See 80th Kentucky Reports, page 259.) •

Under the 13th and 14th sections of the appellee’s charter (Session Acts 1869, vol. 6, pages 222-3) a jus*275tice of the peace, upon the application of the appellee, was authorized to issuo a writ of ad quod darnmum; and the sheriff, by virtue of the writ, was authorized to impanel a jury in the country to find for the owners the value of the land that the appellee “wanted,” for the purpose of constructing its road ; also to assess the damages incidentally resulting to other land of the owners. The jury’s verdict was to be in writing, and returned to the office of the circuit clerk, to be either confirmed or set aside by the circuit court. If the verdict was confirmed, it was to be recorded; but if set aside, a new inquisition was ordered, which was to be held by the sheriff in the same manner as the first.

Immediately after the return of the first verdict, and whether the same was set aside and a new jury ordered or not, the appellee had the right to enter upon the land and construct its road ; and upon payment or tender of payment of the amount assessed, the appellee was clothed with the actual title to the property.

The Legislature of Kentucky passed a general act, which was approved April 11, 1882, prescribing the mode of' condemning land for the use of railroad and turnpike companies.

The act provides in substance, that any railroad company authorized to construct and operate a railroad in this State, and being unable to contract with the owner of any land necessary for its use for the purchase thereof, may apply to the county court to appoint commissioners to assess the damages the owner of the land may be entitled to receive ; and thereupon it shalT.be the duty of the county court to appoint three commis-' sioners to act in the premises. That the commissioners *276shall view the land and award to its owner the value. That they' shall return their award in writing to the county court clerk’s office. That upon the application of the company, in the manner indicated in the act, the clerk shall issue process against the owner of the land, citing him to show cause why the award should not be affirmed. And at 'the next regular term of court after the owner shall have been summoned the length of time required, it shall be the duty of the court to examine the report and confirm it, if it shall appear to be in conformity to the act, provided no exceptions to the report .are filed. If exceptions are filed by either party, then "the court shall empanel a jury to try the issue of fact made by the exceptions. If sufficient cause be not shown for setting aside the verdict, the court shall enter judgment in accordance with it. Either party may appeal to the circuit court of the county, and the appeal .shall be tried “ de novo.” The act also repeals all acts and parts of acts in conflict with it.

This court, in the case of Chattaroi Railroad Company v. Kinner, 81 Ky., 223, decided that the act ■supra repealed all former acts, whether general or special, which were in conflict with it; and as there is no element of a contract in a special remedy given to a railroad company to condemn land for its use, the Legislature has the power to repeal it, and substitute new remedies in its stead.

The 13th and 14th sections of appellee’s charter, as well as the amendments thereto, which prescribed the mode of condemning land for its use, were repealed by the general act of the Legislature, approved April 11th, 1882.

*277The appellee in 1880 attempted to have condemned for its nse fifty feet off the rear end of a lot of land owned by appellant in the city of Lexington, upon which he was erecting a valuable and expensive livery and sale stable, which was nearly completed at the time. The jury’s ££inquest of damages” was returned to the circuit -court in February, 1880, and the circuit court at its February term, 1880, confirmed the inquest. The appellant, Treacy, appealed from the judgment of confirmation to this court. This court in May, 1882, reversed the judgment of the lower court, and remanded the case for further proceedings consistent with the opinion.

After the return of the case to the lower court, it, at its special January term, 1884, heard the proof relative to the use for which the land was sought to be condemned, and the necessity for condemning it to that use, and damages the appellant sustained by reason of its condemnation to the use of the appellee, and thereupon again confirmed the inquest of the jury in the country.

From that judgment appellant again appeals to this court.

He contends that the appellee’s charter relative to the mode of condemning land for its use, having been repealed by the act of 1882, the case, upon its return to the circuit court, should have been heard and tried de novo, in accordance with the provisions of the act of 1882, and not in accordance with the provisions of appellee’s charter.

It is certain that the lower court re-tried the case in accordance with the appellee’s charter. If the court *278was right in this, then the judgment must be affirmed. If the court was wrong, and should have re-tried the case “de novo,” as provided in the act of 1882, then the judgment must be reversed.

Sections 13 and 14 of appellee’s charter, as well as the amendments thereto, which prescribed the mode of condemning land and other property for appellee’s use, are in conflict with the provisions of the act of 1882, and were, therefore, repealed by the 9th section of that act.

If, therefore, the appellee’s proceedings in the county were a sufficient compliance with the conditions precedent to its right to acquire right or title to the land, then the lower court should have re-tried the case under the . provisions of the charter, because, in such a case, the appellee, having actually acquired a right to the property, by virtue of its charter remedies, the Legislature could not, by a subsequent act, repeal the charter remedy so as to change or affect the appellee’s vested rights thereunder.

On the other hand, if the appellee failed to comply with' the conditions precedent to its right to acquire right or title to the land, then the court should have proceeded to retry the case de novo under the act of 1882, because the appellee having acquired no vested right to the land or any interest therein by its proceeding, the repeal of the charter remedy left appellee without a right to proceed further under its charter. And it could only complete its right to condemn the land by conforming its proceedings to the provisions of the repealing act.

This court, upon the former appeal in this case (80 *279Ky., 266), decided that the appellee’s right to take the land depended upon two conditions : ■ 1st. That the taking was for a public use ; and 2d. That the land was ■necessary for that use. That these conditions were precedent to the right of the appellee to take the land. And that it devolved upon the appellee to show, affirmatively, the existence of these conditions before the land could be legally condemned to its use. And the appellee-having failed to show the existence of these precedent conditions, the case was reversed, and remanded for proceedings consistent with the opinion.

If the appellee had complied with the conditions precedent to his right to have the land condemned, and the case had been reversed simply because the jury misapprehended the merits of it, then the reversal could not, under the charter, have affected any right or title that the appellee acquired to the property by reason of the first inquest of the jury, and the tender of the sum •awarded as damages to the owner. But the reversal was not because of the mere misapprehension of the jury as to the proper measure-of damages. On the contrary, the reversal was based upon grounds which went beyond that question, and which- developed the fact that the appellee had not complied with the conditions precedent to its right to have the -land condemned to its use. The establishment of these conditions was an indispensable prerequisite to a legal condemnation of the iand ;■ and the failure of the appellee to manifest its right to have the .land condemned to its use, -by establishing these indispensable precedent conditions, was fatal to its proceeding to condemn -the land. And the •case having been reversed for these expressed reasons, *280the inquest of damages by the jury was also necessarily reversed by implication. Therefore, when the case again came up in the circuit court for trial, it stood in legal contemplation upon the appellee’s application or petition alone; and such being the status of' the case, should the court have tried it under the law of 1882 %

In the case of Springfield and Illinois Southeastern Railway Co. v. Hall, 67 Ill., 99, the court said: “This, was a. proceeding to condemn a right of way, commenced under the act of 1852. Before the trial in. the circuit court, the act of 1872 had taken effect, and the damages were assessed under the rule prescribed, in that act. This was unquestionably right. The later-act expressly repealed all conflicting provisions in the-former, and where proceedings of this character were in fieri, it would necessarily follow that they must be completed under the new law. The State has the right-to say on what terms it will allow its right of eminent domain to be exercised, so long as any thing remains-to be done by the corporation in order to complete-the condemnation of the land.”

This court, in Chattaroi Railway Company v. Kinner, 81 Ky., 223, says : “But the Legislature has the power to enact any subsequent or amendatory law which regulates the remedy for enforcing corporate rights and privileges, so it does not, under the guise of regulating; the remedy, impair the obligation of the contract, or-which only operates on the relations between the corporation and other persons before any contract between: them has been concluded, and interferes with no vested rights of the corporation.”

*281As before said, as the appellee failed to establish the conditions precedent to its right to condemn the land, it acquired no title to the land or any interest therein by the jury’s inquest of damages, and the tender of the sum assessed to.the appellant. Therefore, the circuit court should have proceeded to try the case de novo; and, upon the request of either party, a jury should have been empaneled to try the case.

The judgment is reversed, and the case is remanded, with directions to proceed consistently with this opinion.