Zimmerman v. Kansas City Northwestern R. Co.

Decision Date03 March 1906
Docket Number2,228.
PartiesZIMMERMAN v. KANSAS CITY NORTHWESTERN R. CO.
CourtU.S. Court of Appeals — Eighth Circuit

This was a bill in equity to enjoin the defendant company from operating its railroad over a lot of ground formerly owned by plaintiff's intestate, Zimmerman, until a judgment rendered against its predecessor in title, for damages sustained by the taking and appropriation of the lot should be paid. By the Statutes of Kansas in force at the times hereinafter mentioned (section 1359 et seq., Gen. St. 1901) a scheme was provided by which railroad corporations in the exercise of the right of eminent domain might apply to a board of commissioners to locate their roads, make assessments of the value of the land taken and the damages occasioned thereby to the several owners, with provision for an appeal, so far as assessment of damages was concerned, to the district court. Without attempting to comply with the provisions of this statute, the Kansas City, Wyandotte &amp Northwestern Railway Company, hereinafter called 'Wyandotte Company,' in 1887 entered as a trespasser upon and appropriated to its own use as a part of its right of way, a lot of ground in the city of Leavenworth belonging to plaintiff's intestate, and by disturbance of the established grade of the street impaired ingress and egress to and from the lot.

In 1889 Zimmerman commenced an action against the Wyandotte Company in the district court of Leavenworth county to recover damages sustained by the appropriation of his land, and the construction of the railroad thereon. This resulted, in 1897 in a judgment in his favor for $3,000. In 1888 the Wyandotte Company executed its mortgage conveying its railroad to a trustee to secure the payment of an issue of bonds. Afterwards the trustee commenced an action in the Circuit Court of the United States for the District of Kansas, and in 1896 secured a decree foreclosing the mortgage and ordering the property sold. It was subsequently sold to a purchasing committee who conveyed it to the defendant company. The decree, which by reference was made part of the bill, contained the following provision: 'This court hereby reserves to itself from this decree, the power and jurisdiction both as against the parties to this suit and as against said purchaser at said contemplated sale, to hear and adjudicate all pending and undetermined claims hereinafter presented, whether contracted by the receiver or the mortgagor company, before the commencement of this suit and to determine as to said claims, whether they are or are not valid and entitled to priority over the mortgage debts hereinbefore referred to, and to make all such orders and supplementary decrees touching said claims and demands as may be deemed proper,' etc. The substance of this provision was also found in the purchasers' deed.

Defendant company, after the purchase, took possession of the lot as part of its right of way and has since then constantly retained and used the same. Neither the mortgagor company nor the purchasing company have ever paid plaintiff's judgment or otherwise compensated Zimmerman for the damages sustained by him by reason of the taking and appropriation of his lot.

The trial court sustained a demurrer to this bill, and after a final decree of dismissal it was brought here by appeal.

John H. Atwood (William W. Hooper, on the brief), for appellant.

Frank Doster (B. P. Waggener, James W. Orr, and W. P. Waggener, on the brief), for appellee.

Before SANBORN and ADAMS, Circuit Judges.

ADAMS Circuit Judge, after stating the case as above, .

Notwithstanding all the parties are citizens of Kansas, it is practically and we think necessarily conceded that the court below acquired jurisdiction, on the ground that the suit as originally brought involved the construction of the decree of the federal court in the foreclosure suit. We accordingly refrain from further considering the jurisdictional question raised by the assignment of error.

As the Wyandotte Company appropriated Zimmerman's lot without resorting to the statutory method of exercising the right of eminent domain or otherwise legally acquiring title or right to do so, it conferred upon Zimmerman the right to waive the trespass and commence his action in the district court, the same as he might have done had formal proceedings been taken by the railroad company and he had been dissatisfied with the award of the commissioners 'to recover compensation for all the damages which he sustained by reason of the permanent taking and appropriation of the right of way by the railroad company. ' C.B.U.P.R.R. Co. v. Andrews, 26 Kan. 702, 710; Cohen v. St. L., Ft. S. & W.R.R. Co., 34 Kan. 158, 8 P. 138, 55 Am.Rep. 242, Wichita & W.R.R. Co. v. Fechheimer, 36 Kan. 45, 12 P. 362; U.S. v. Great Falls Mfg. Co., 112 U.S. 645, 5 Sup.Ct. 306, 28 L.Ed. 846.

The bill discloses the true nature of Zimmerman's action as originally instituted in 1889. It was not an action of trespass quare clausum fregit to recover damages then accrued, but waiving the trespass committed by the railroad company and recognizing its action as the legal equivalent of formal proceedings of condemnation, Zimmerman sought by his suit exactly what he would have secured had such formal proceedings been taken and had he appealed from the award of the commissioners to the district court to correct the same. His action was to secure such an award, and the judgment is in legal effect an award of all damages, part, present and future, which he sustained by reason of the appropriation of his lot. The payment of this award was a condition to the acquisition of title by the Wyandotte Company. Article 12, Sec. 4, of the Constitution of Kansas ordains that '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. * * * ' It is settled law that under Constitutions of this character which generally prevail in the United States, title does not pass from the owner of land appropriated to public use to the corporation making such appropriation until compensation has been actually made. Kennedy v. Indianapolis, 103 U.S. 599, 604, 26 L.Ed. 550; Cherokee Nation v. S. Kansas Railway Co., 135 U.S. 641, 659, 10 Sup.Ct. 965, 34 L.Ed. 295; Drury v. Midland Railroad, 127 Mass. 571, 576; Western Pa. R.R. Co. v. Johnston, 59 Pa. 290; Provolt v. Chicago, Rock Island & Pac. R.R. Co., 57 Mo. 256.

The owner, by laches or waiver, may lose his right to enjoin the trespass or his right to an action of ejectment to regain possession. Wichita & W.R.R. Co. v. Fechheimer, supra; Buckwalter v. A., T. & S.F. Ry. Co., 64 Kan. 403, 67 P. 831, but title or unconditional right to enjoy the free use of the property taken does not accrue until the damages incident to its appropriation are paid. It appears from the bill that Zimmerman's suit was brought before the foreclosure suit was instituted and before defendant purchased the railroad; that the same was, with the full knowledge of defendant company, pending at the time of the judgment of foreclosure and purchase by the defendant. The judgment subsequently rendered in that suit would, of course be conclusive as to Zimmerman's damages so far as the Wyandotte Company itself was concerned. This is not disputed. It is, in our opinion, equally conclusive against...

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    • Idaho Supreme Court
    • December 11, 1909
    ...domain, and may maintain an action against the company for damages. (Cohen v. R. Co., 34 Kan. 158, 55 Am. St. 242, 8 P. 138; Zimmerman v. R. Co., 144 F. 622, 623, 75 C. A. 424; 18 Cent. Digest, sec. 729; United States v. Great Falls Mfg. Co., 112 U.S. 645, 5 S.Ct. 306, 28 L. ed. 846; 2 Elli......
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