Corey v. Chicago, B. & K. C. Ry. Co.

• Decision Date: 10 March 1890
• Citation: 13 S.W. 346,100 Mo. 282
• Court: Missouri Supreme Court
• Parties: COREY v. CHICAGO, B. & K. C. RY. CO.

13 S.W. 346

100 Mo. 282

COREY v. CHICAGO, B. & K. C. RY. CO.

Supreme Court of Missouri.

March 10, 1890.

RAILROAD COMPANIES — EMINENT DOMAIN — PROCEDURE — COMPENSATION.

1. The general railroad law of Missouri, (1 Rev. St. 1855, pp. 414-417, §§ 13, 14, incorporated into Gen. St. Mo. 1865, pp. 351, 352, §§ 1-3,) making provision for the appropriation of lands "by any road, railroad, or telegraph corporation, created under the laws of this state," gives to a railroad company created by special charter a mode of procedure to condemn land in addition to that given by its charter, and it may resort either to the provisions of its special charter, or to those of the general law.

2. Under section 1 of the above law, requiring the petition for the condemnation of lands of a private person by a railroad company to set forth the general directions in which it is desired to construct the road over such lands, and a description of the real estate which the company seeks to acquire, it is sufficient if it sets forth the particular tract over which the road is to be constructed, gives the general direction in which it is to run, and for a more particular description refers to a map filed therewith. Following Railroad Co. v. Story, 10 S. W. Rep. 203.

3. The above law authorizes the company to apply to the circuit court to have the land condemned when "such corporation and the owners cannot agree upon the proper compensation to be paid," and where the petition avers the failure to agree it is sufficient. The company need not sustain the averment by oral proof; nor can the owner, after proceedings have been had, and the land has been condemned, deny the truth of such assertion.

4. Under the provision of such law in regard to the duties of the commissioners appointed to assess damages, "who, after having viewed the land, shall forthwith return, under oath, such assessment of damages to the clerk of such court," it is not required that they be sworn before entering upon their duties, but it is sufficient if their affidavit be attached to their return.

5. Under the provision in section 2 of such law requiring 10 days' notice to the owner of the time when the petition will be heard, it is sufficient if the notice be given 10 days before the hearing. The law does not require it to be given before the damages are assessed.

6. A railroad company which has begun the construction of its road can in its own name institute proceedings to condemn land, though it has sold and conveyed its rights. Such case is not within Rev. St. Mo. § 3462, requiring actions to be brought in the name of the real party in interest.

7. The fact that a railroad company has already appropriated land does not affect the validity of proceedings to condemn the same subsequently instituted.

8. Where, after proper proceedings by a railroad company, land has been condemned, title thereto passes to the company; and the only measure of the owners' damages is the amount assessed by the commissioners.

9. Where the owner of land through which a railroad company wishes to construct its road takes a position with the company under a parol agreement to "drop the question of damages," such agreement is a bar to a subsequent suit for the damages to his land, though the agreement may have been terminated by the company contrary to its terms.

Error to circuit court, Linn county; G. D. BURGESS, Judge.

The general railroad law of Missouri, as laid down in 1 Rev. St. Mo. 1855, pp. 414-417, §§ 13, 14, incorporated in Gen. St. Mo. 1865, pp. 351, 352, §§ 1-3, provides as follows: "Section 1. In case lands sought to be appropriated by any road, railroad, or telegraph corporation created under the laws of this state belong to private persons, and such corporation and the owners cannot agree upon the proper compensation to be paid, * * * such corporation may apply to the circuit court * * * by petition, setting forth the general directions in which it is desired to construct their road * * * over such lands, a description of the real estate which the company seeks to acquire. * * * Sec. 2. Upon the filing of the petition, a summons shall be issued, giving such owner at least ten days' notice of the time when said petition will be heard, which summons shall be served by the sheriff of the county, in the same manner as writs of summons are * * * required to be served. * * * Sec. 3. The court, or judge thereof, * * * shall appoint three disinterested commissioners * * * to assess the damages, * * * who, after having viewed the land, shall forthwith return, under oath, such assessment of damages to the clerk of such court, setting forth the amount of damages. * * *"

A. W. Mullins and B. J. Northcott, for plaintiff in error. Karnes & Krauthoff and L. T. Hatfield, for defendant in error.

SHERWOOD, J.

This cause has been transferred to this court from the Kansas City court of appeals on the ground that the title to real estate is involved. It is an action for $1,000 damages for taking plaintiff's land, in the construction of a railroad, wrongfully and without legal authority. Briefly told, the essential facts are substantially these: In the month of July, 1872, the St. Joseph & Iowa Railroad Company resolved to build a branch road, and on the 13th of that month proceeded to condemn the right of way through the grounds of various persons, and among others those of plaintiff; and the result of such proceedings was that the plaintiff was duly notified thereof, and the commissioners made report of their action, which was duly recorded August 5, 1872. The report of the commissioners awarded to plaintiff the sum of one dollar; but he made no objection, and saved no exceptions, to the report. The defendant, in its answer, set up title to the land in controversy under and by virtue of a purchase thereof in 1880 from the trustee, who bought under a decree of foreclosure of the premises in 1876, and also claimed to be the purchaser without notice, and after due examination of the records aforesaid, and upon the ground of the plaintiff's acquiescence in the report aforesaid, and by reason of his residing continously near the railroad ever since the work complained of was done, and without making any claim for damages, or any complaint about the same, to the receiver appointed by the federal court, who had the road in charge upwards of six years. The present action was not begun until May, 1882; almost, if not quite, 10 years from the time the railroad company first entered on plaintiff's land, and began its work. The substantial portion of plaintiff's own testimony was as follows: "I bought the land in 1869. I...