Newgass v. Railway Company

• Decision Date: 17 January 1891
• Parties: NEWGASS v. RAILWAY COMPANY
• Court: Arkansas Supreme Court

15 S.W. 188

54 Ark. 140

NEWGASS v. RAILWAY COMPANY

Supreme Court of Arkansas

January 17, 1891

APPEAL from Jefferson Circuit Court, JOHN A. WILLIAMS, Judge.

Condemnation proceedings instituted by the St. Louis, Arkansas and Texas Railway Company for the assessment of damages for the right of way of its railroad previously built without license across certain land belonging to Benjamin Newgass. Upon the trial the court held:

"1. That the period to which reference should be made, in estimating the damages of Newgass for the right of way sought herein by the railroad company was the time when the said company entered upon the property mentioned in the company's petition, and built its railroad upon it, and not the day of filing its said petition herein.

"2. That said Newgass was entitled to recover nothing for fences or overflow."

Judgment reversed and cause remanded.

Morris M. Cohn for appellant.

1. The time with reference to which the value of the land is to be ascertained is the date of the filing of the petition to condemn, and not the date of entry. Beach on Railroads, sec 846; 31 Am. Dec., note 372; Mansf. Dig., sec. 5458; Acts 1885, p. 179. So long as the prerequisites are not conformed to, ejectment will lie. Beach on R. R's., sec. 830, note 2, sec. 850; 1 How. Pr., 214; 89 Pa.St. 282; 57 Cal. 417; 66 Pa.St. 404; 34 Ill. 195; 41 Iowa 419; 40 Wis. 653; 8 Watts and S., 459; 13 Kan. 496; 45 Iowa 23; 67 Ill. 191; 17 Minn 215; 48 Ind. 178; 70 Ala. 227; 56 Tex. 66; 54 Wis. 136; 68 Pa.St. 189; 33 N. J., 115; 90 Ill. 316; 51 Ark. 504; 32 N.W 162. See also, 3 N.E. 720; 10 id., 372; 115 Mass. 1, 13; 117 id., 302; 68 Ind. 137; 61 Ill. 115; 91 Ill. 49, 52; 28 Minn. 503; 30 id., 100; Dill. Mun. Corp., vol. 2, sec. 971, note 1 (4th ed.)

2. What is to be considered in ascertaining the value of property taken? Is Newgass entitled to recover the value of the railroad bed? Railroads enjoy the State's prerogative of eminent domain. 31 Am. Dec., note 372. And when it exercises the privilege of taking private property without leave, it must do so cum onere. If it departs from the statute, it is a trespasser. Beach R. R's., sec. 830; 3 So. 252; 32 N.W. 162; 12 P. 362; 11 N.W. 253.

The law is well settled that a trespasser acquires no rights as against the owner reclaiming his property. Cooley, Torts. (1st ed.), 55, 56; 37 Mich. 332; Bish. Non-Cont. Law., secs. 101, 939. One who puts improvements upon another's property loses them with the property. 24 Ark. 109; 16 id., 182; 31 id., 334, 344-5; Sedg. & W. Trial of Title, etc., secs. 694, 713. When the railroad filed its petition, the land and the road-bed belonged to appellant. 47 Cal. 515, and cases infra. Ewell, Fixt., 57-8-9 and notes; 13 P. 300; 97 Mass. 279, 283; 128 id., 391; Tiedeman, Real Prop., sec. 2; Ewell, Fixt., 277 note, 308 note; 13 N.E. 680; 3 So. 252; 11 N.W. 253; 37 Ohio St. 147; 29 Minn. 256; 106 U.S. 196; 9 Cranch., 11, 210, 211; 13 Pet., 498.

3. If the value of the road-bed cannot be recovered, what can be? Most certainly the depreciation in value of the balance of the land by reason of damage from overflow and additional cost of fencing. The value of the land taken for any special purpose, such as town site, etc. See 41 Ark. 202, 208; ib., 431; 49 id., 381-7; 51 id., 324; 39 id., 167; 44 id., 258; 42 id., 528; Beach, R. R., secs. 821-2; 44 Ark. 258.

J. M. & J. G. Taylor and Sam H. West for appellees.

By the judgment of the Federal court, and of this court in 51 Ark. 491, the railroad company was neither a trespasser nor liable to be ejected therefrom, and the common law cases on trespass are without application. All that the owner is entitled to is compensation. The attitude of a railroad that has gone upon lands without making compensation is described in 15 Pick. 198. See also, Lewis, Em. Dom., p. 618, sec. 477.

The rule of compensation is the value of the land at the time of taking, without any enhanced value by reason of the construction of the road. Lewis, Em. Dom., sec. 507; Rorer on Railroads, vol. 1, 366, 380. That appellant was not entitled to the road-bed, or its value: see 46 Cal. 87; Lewis, Em. Dom., sec. 507; 70 Ala. 227; 14 A. & E. Cases, 217. The rule that everything affixed to the lands becomes part of the freehold, was never inflexible, and has always been subject to exceptions. 2 Peters, 137; 30 Md. 347; 2 Kent, 338; Amos & Feard on Fixtures, 10. And one of the exceptions is, that when a railroad enters wrongfully this does not preclude it from subsequently resorting to appropriate proceedings for the acquisition of the land, and, of consequence, availing itself of all structures it may have placed thereon. 87 Penn. St., 28; 23 Wall, 108; 39 Mich. 575; 42 Wis. 538.

Just compensation to the land owner is all he can claim, and this includes the value of the land taken and the injury to the remaining lands. 42 Ala. 83; Cooley, Const. Lim., 705-12; 87 Penn. St., 28 and cases supra; 28 N.J.Eq. 450; Pierce on Railroads, 209. See also 39 Mich. 680; 7 Allen, 313; 105 Mass. 303; 125 Mass. 1; 127 id., 571; 1 Rorer, R. R., 380.

There was no error in the court in holding that appellant was not entitled to anything for fencing or overflow. The lands were unimproved and swampy, and neither cost of fencing nor overflow were elements of damage in view of the testimony. 42 Ark. 528, 529; 39 id., 168, 171; 1 Rorer on R. R., 392-4.

OPINION

HEMINGWAY, J.

This appeal presents for our consideration three alleged errors--all relating to the rule adopted by the court below for assessing the amount to be paid appellant as compensation for taking his land for a railroad.

1. Condemnation--Valuation.

1. It is insisted that compensation should have been assessed with reference to the value of the land taken as of the time of filing the petition, and not as of the time of the entry upon the land by the corporation.

Upon this question the courts in different States have established different rules. It is held by some that the assessment should be made with reference to the time of entry; by others, with reference to the time of filing the petition; and by still others, with reference to the time of the award. Lewis on Eminent Domain, sec. 477 and cases cited. The court below adopted the first rule, against the objection of the appellant who contended for the second one. We recall no case in which the question has been presented for the decision of this court; but there are references by the court to it, and, in so far as they indicate an opinion, it is favorable to the contention of appellant. Either rule is liable to operate harshly in special cases--as well against the land owner as the corporation--but we see nothing in the one contended for which indicates that it would more often work harshly than either of the others; and it has the advantage of fixing a certain and definite time with reference to which the estimate must be made. Besides the corporation has the right to acquire the land; when it files its petition, it declares its purpose to appropriate it and to render just compensation to the owner. Until it has done that, it is in default; but afterwards it can do nothing more until, in the regular course of procedure of the courts, a legal ascertainment of the amount to be paid is made. As the filing of the petition is the attempt to assert the right of condemnation, and subsequent delay is without fault of either party, it seems fair to each alike that the assessment should be made with reference to value as of that date. Lewis on Eminent Domain, sec. 477 and cases; Burt v. Merchants' Ins., Co., 115 Mass. 1; The South Park Comm'rs v. Dunlevy, 91 Ill. 49.

There was evidence tending to prove that the land had advanced in value between the time of entry and that of filing the petition, and we cannot hold that the error of the court in making its assessment with reference to the earlier date did not prejudice the appellant. For this error, the judgment must be reversed; and as the other points raised will be presented in the future trial of the cause, it is proper that we determine them.

2. It is assigned as error that the court ruled "that Newgass was entitled to recover nothing for fences or overflow."

2. Damage for fencing.

The appellant was entitled to be compensated for the taking of his land--to no more and to no less. If the taking impaired the value of his contiguous land, he was entitled to be compensated to the extent of such impairment, in addition to the value of that taken. If, in view of the probable future use of the remainder, additional fencing would be necessary, and this fact rendered it less valuable than it would otherwise have been, then such fact would be an element of damage. Such damage is not necessarily the cost of increased fencing, but the amount of depreciation in the value of the land caused by the increased burden upon its use. There is nothing in the proof to show that, in order to use and enjoy the lands, as they probably would be used in future, any additional fencing would be necessary. There was therefore no error in the court's ruling in that regard. Lewis, Em. Domain, sec. 498 and cases cited; Railway v. Combs, 51 Ark. 324.

3. Damage for overflows.

If the appropriation of the part and its use as a railroad resulted in flooding the remainder of appellant's lands, the damage so occasioned should be included in the assessment; but no account should be taken of injuries thereafter to result from an improper construction or maintenance of the bed, for the condemnation does not authorize either, and the corporation that condemns the land will be liable for such injuries as may thereafter result therefrom. Railway v. Rhea, 44 Ark. 258; Railway v. Henry, 44 Ark. 360.

4. Value of railroad track.

3. It...