Williams v. New Orleans, Mobile & Texas Railroad

60 Miss. 689 | Miss. | 1882

Chalmers, J.,

delivered the opinion of the court.

In 1869 or 1870 the New Orleans, Mobile and Chattanooga Kailroad Company constructed their line of road upon and across two lots of land belonging to Mrs. Garra way in the town of Biloxi, without any precedent compensation or condemnation, or written license for so doing. In 1873 Mrs. Garraway sold the land to Mrs. Williams, the complainant in this suit, and transferred to her in writing her claim against the railroad company for damages or compensation. In 1877 the railroad company, or those into whose hands the possession and control of its property had passed, instituted in the mode and manner provided by its charter appropriate proceedings for the condemnation of a sufficient portion of Mrs. Williams’ lots to suffice both for a right of way across the same and for depot grounds.

It was then, and had since its construction been, enjoying the uninterrupted use and possession of a strip one hundred feet wide across said lot for right of way purposes, but stated in its petition that it had never been able to agree with the owner as to the compensation therefor, and now desired the condemnation of a strip two hundred and eighty-five feet in breadth, for right of way and depot purposes. To this petition both Mrs. Garra way and Mrs. Williams were made parties. The proceedings were carried through with the utmost regularity, all the requirements of the charter being strictly observed, and resulted in a judgment 'of'condemnation of a strip of the desired width, measured from the centre of the track, “ the compensation of the owner being fixed at $2,900.” The report'of the jury was upon motion of-the railroad authorities approved, and the reco'rd of the proceedings filed and lodged in the office of the circuit clerk of the county. The company has never taken possession of or used in any manner the additional ground condemned for it, but has continued in the undisturbed enjoyment of the one hundred feet taken without condemnation in 1869-70.

It has never paid or tendered to the owner any compensation ^whatever,

This bill was filed in 1881 by Mrs.-Williams to compel payment of the sum awarded her by the judgment of condemnation. ' , .

The defence of the company is that it entered upon the right of way across the lots fiy the parol permission or license of Mrs. Garraway in 1870, and that its right has ripened by subsequent possession and lapse óf time into a perfect title, and that the proceedings of condemnation are not an estoppel upon it, nor even receivable in evidence against its present owners, because conducted by others than themselves, and were as to them res inter alios acta.

At the time when the railroad company entered upon the land it had already executed two mortgages upon its entire road-bed, property, and franchise, to secure the holders of its first and second series of bonds, and these mortgages provided that upon default in payment of the bonds, the trustees, to whom was conveyed the legal title to the property for the purpose of securing payment of the bonds, should take possession of the entire property and sell the same under proper proceedings of foreclosure. By virtue of these powers the trustees in the second mortgage took possession of the road in 1873 and sold it to their cestuis que trust, the holders of the second series of bonds, in June of said year.

The purchasers at this sale held it for a short time only, and were displaced in January, 1875, by the trustees under the first mortgage, whose rights were superior to theirs. It was while it was in possession of these trustees (Raynor & Morgan, trustees under the first mortgage) that the condemnation of Mrs. Williams’ land took place, and the present owners of the road hold by purchase from them in 1880, or rather under a foreclosure sale procured by them.

The condemnation proceedings were instituted' aud carried through in the original name of the company, to wit, the New Orleans, Mobile and Chattanooga Railroad Company, and the argument is that thejr were conducted by the original stockholders, after said stockholders had lost all right of property, as well as possession of the road, and after the corporation had assumed its present name, and that, therefore, said proceedings were res inter alios acta as to the trustees under the first mortgage, and as to the purchasers from them ; and hence constitute neither an estoppel upon them, nor are receivable in evidence against them.

A moment’s examination of the record shows that this position is specious and untenable. The proceedings of condemnation were instituted and carried through by James A. Raynor, who is shown to have been the active trustee in the first mortgage, and as such had the entire control and management of the road as the agent and representative of the bondholders protected by that mortgage, from 1875 to 1880. Roderick Seal, who is shown to have been the attorney of the road while it was thus in the hands of Raynor, conducted the proceedings, and the chief engineeroftheroadduring- saidperiod aided in the condemnation by furnishing the necessary maps. It is evident, therefore, that the procurement of the condemnation was the act of those under whom the present owner^ claim, and not of the original stockholders,' whose corporate name was probably used because by that-name only had the exercise of the right of eminent domain been expressly authorized by the State.

This conclusion disposes of the. question of the Statute of Limitations, since the fact of condemnation, and the recitals in that proceeding, negative the idea of fin adverse holding under claim of right, either before or subsequent to such proceeding.

It disposes, also, of the question of an entry under a parol license, since if we concede that the corporation can now set up a .right outstanding in it at and before the suing out of the writ of ad quod damnum, the only evidence adduced in favor of such license is the testimony of three neighbors of Mrs. G-arraway, to the effect that she had said to them in casual conversations that she had given, or intended to give, the company the right of way through her lots. Certainly such evidence as this is not sufficient to overturn the admission that the company had no right of ivay, evidenced by and expressly admitted in the condemnation proceedings.

What are the present rights of the parties, in view of the fact that the railroad company has never availed itself of the whole property condemned to its use, but has been since the condemnation, as it was before, occupying so much of it as is nece'ssary for the right of way.

The doctrine, as ordinarily stated, is that by the confirmation off the report of the commissioners, a jury of inquest adjudging the necessity for the. condemnation and fixing the" amount of compensation, the fight of each party becomes fixed and absolute, the one to the property, and the other to the money; and that there can besno subsequent abandonment by the party invoking the condemnation; so, that whether he chooses to use the property or not, he must pay to the owner the sum assessed.

A number of cases, however, take a different and we think a sounder view, namely, that inasmuch as it is not the judgment of confirmation that confers title, but only actual payment or tender of compensation, in cases where there has been no actual disturbance of the owner’s possession it cannot be said that his right to the money is absolute. The condemnation is, in a sense, always conditional; that is to say, the court or officer in whom is vested the right of confirmation says to the party seeking it: “ If you should pay, or when you shall have paid, the amount assessed, the property or the easement shall be yours.” Until, therefore, there has been such payment or tender the one party has acquired nothing aud the other has lost nothing. If the owner has suffered damage of any sort by reason of the proceedings, either in conducting them or consequent upon them, as in the destruction of structures or digging of earth in the one case, or the depreciation of values, the prevention of erections desired to be made, the incurring of expense or change of plans and losses of sales in the other, he will be entitled to full compensation therefor, but not to the specific sum found by the inquest. Cases may arise where the condemning party will be estopped by some matter in pais from receding from the judgment rendered at its own instance, and this perhaps should always be the rule where it is impossible otherwise to fully compensate the owner. When no such circumstances exist, and nothing prevents the attainment of complete justice, the party who has sought the condemnation should not be compelled to take land it does not want, nor the owner allowed to receive compensation for property in the possession and ownership of which he has never been disturbed.

- A number of cases illustrating the rights of parties where there has been an abandonment of condemnation proceedings before and after confirmation, are collected in the notes to Mills on Em. Dom., sect. 311, et seq.

Among those to be found there and elsewhere adopting the views here announced we cite 80 Ill. 482; 13 Cal. 307; 10 Md. 544 ; 27 Vt. 39 ; 48 Ill. 144: 10 How. (U. S.) 395. The facts of this case-are peculiar. Our researches have led us to none exactly analogous. Four years intervened between the condemnation and the filing of this bill, during which no entry by the corporation has been made upon any other land than that theretofore and now used as a right of way; but as to so much as is used for that purpose, the corporation has from the inception been a trespasser, so far as this record discloses. There was no separate estimate made of the value of the right-of way, but the sum assessed was in gross for all that was then desired, both for the right of way and for depot purposes.

We think that the company should be compelled at once to elect whether it will now take the whole amount of land condemned, or relinquish all claim to any more than the hundred feet used as a right of way. If they elect to take the whole, the complainant will have the right,-' in view of the long time that has elapsed, to say whether she will take the sum assessed in 18 77, with interest, or demand that a new valuation shal now be fixed by the court, after it shall have been advised bv reference to a commissioner appointed to ascertain that value. If the corporation shall elect to retain the right of way only, a commissioner should be appointed’ to ascertain its value both at the time when the property was first invaded and at the time when the account is taken, with the right in complainant to elect whether she will take the present value or the original value with interest. '

Complainant by her bill having recognized the validity of the former proceeding of condemnation, and submitted her rights in the property to the jurisdiction of the Chancery Court, we deem it unnecessary to issue another writ of ad quod damnum, and the more advisable to settle all the rights of the parties in this suit.

We allow the right of election as to the amount to be taken to the corporation, because, though trespassers, it seems probable that they were not wilfully so, and because the complainant and her vendors, with full knowledge of all the facts, have for many years permitted the trespass to continue without taking any steps to prevent it. While, under these circumstances, complainant is entitled to compensation for so much of her land as is actually used, she is entitled to nothing more. Ordinarily interest upon the assessment is not allowed the owner when possession remains with him, but in this instance there has been partial possession all the while in the corporation, and as this must have operated in connection with the judgment of condemnation to some extent as a hindrance to the enjoyment and power of sale of the whole, we think interest should be paid in the manner indicated above.

The decree dismissing the bill is reversed, and the case remanded to be proceeded with in accordance with the principles announced in this opinion. When decree shall have been rendered, a reasonable time should be allowed to pay the sum decreed, and the cause should be retained until the same is paid, so that its payment may be enforced by execution, or if necessary by injunction, restraining defendants from running their trains over complainant’s land until the decree is complied with.