Rothan v. St. Louis, Oak Hill & Carondelet Railway Company

• Decision Date: 22 December 1892
• Parties: Rothan et al., Appellants, v. The St. Louis, Oak Hill & Carondelet Railway Company et al
• Court: Missouri Supreme Court

20 S.W. 892

113 Mo. 132

Rothan et al., Appellants, v. The St. Louis, Oak Hill & Carondelet Railway Company et al

Supreme Court of Missouri, First Division

December 22, 1892

Appeal from St. Louis City Circuit Court.

Affirmed.

David Goldsmith for appellants.

(1) The constitution of this state prohibits the disturbance of the possession of private property by virtue of the exercise of the right of eminent domain until the compensation therefor has been ascertained by a jury and paid to the owner or into court for the owner. And such compensation had not been thus ascertained in this case, though the right thereto was constantly insisted upon. Railroad v. Story, 96 Mo 619; Railroad v. Cudmore, 103 Mo. 638; Railroad v. Town-Site Co., 103 Mo. 469; Railroad v Shambaugh, 17 S.W. 581; Railroad v. Miller, 17 S.W. 499; Ring v. Bridge Co., 57 Mo. 498; Bradley v. Railroad, 91 Mo. 501; Wagner v Railroad, 38 Ohio St. 36; People ex rel. v. McRoberts, 62 Ill. 38; Kine v. Defenbaugh, 64 Ill. 293; Mitchell v. Railroad, 68 Ill. 289; Chambers v. Railroad, 69 Ga. 320. (2) The defendant railway company had no right to enter upon plaintiff's land after the award of the commissioners had been vacated and before another award had been made in its place. Provolt v. Railroad, 69 Mo. 640; Green v. Railroad, 82 Mo. 657; Johnson v. Railroad, 45 N.J.Eq. 454; Wait v. Railroad, 22 A. 261.

H. S. Priest and H. G. Herbel for respondents.

(1) Injunction will not lie to prevent an entry after deposit made of the damages awarded the landowner by the commissioners or the operation of the road after it has been built, where an adequate remedy at law exists. High on Injunctions [3 Ed.] secs. 598, 712, 715, 720; Williams v. Etling, 33 Conn. 355; Railroad v. Railroad, 96 Ill. 125; Railroad v. Patterson, 37 Md. 137; Kip v. Railroad, 6 Hun (N. Y.), 25; Car Co. v. Trans. Co., 34 F. 357; Stevens v. Railroad, 6 C. E. Green, 265; Connor v. Railroad, 19 S.W. 597. (2) The right of entry after deposit with the clerk of the damages awarded the landowner is expressly conferred by the constitution and statutes of this state and landowner's right to a jury trial does not conflict therewith. Constitution, art. 12, sec. 4 and art. 2, sec. 20; Revised Statutes, 1889, sec. 2738; Railroad v. Miller, 106 Mo. 461; Railroad v. Brick Co., 85 Mo. 332; Ex parte Reynolds, 52 Ark. 330; s. c., 12 S.W. 570; Cherokee Nation v. Railroad, 135 U.S. 658; Kennedy v. Indianapolis, 103 U.S. 600; Railroad v. Shambaugh, 106 Mo. 570; Railroad v. Town-Site Co., 103 Mo. 470; Story on Constitutional Limitations [6 Ed.] pp. 71 and 72; Railroad v. DeLissa, 103 Mo. 125; Gray v. Railroad, 81 Mo. 126.

OPINION

Black, J.

This was a suit to restrain the defendant from entering upon and constructing a railroad over a tract of land owned by the plaintiffs. The circuit court sustained the demurrer to the amended petition, and the plaintiffs appealed from a judgment entered thereon.

There are many things stated in the amended petition which are irrelevant to any question of law raised on this appeal, and which need not be mentioned.

This suit was commenced on the eleventh of March, 1887. According to the amended petition, which was filed in October, 1888, the Oak Hill & Carondelet Railway Company is a corporation organized under the general laws of this state, with power to construct a railroad between designated points in the city of St. Louis. The other defendant, the Fruin-Bambrick Construction Company, had a contract with the railroad company for the construction of the road.

On the eighth of October, 1886, the railroad company commenced proceedings to condemn a right of way over various parcels of land, and among others over a tract of twenty-four acres owned by the plaintiffs. Commissioners to assess damages were appointed under the statute, and they made report to the circuit court on the twenty-second of November, 1886. It does not appear what amount they allowed the plaintiffs, but it is alleged that the railroad company, on the same day, paid the amount awarded to the plaintiffs into court. On the second of December, 1886, after the report had been filed and notice thereof had been given to the plaintiffs, they filed exceptions thereto, one of these exceptions being that the damages had not been assessed by a jury. The exceptions were sustained and the report of the commissioners set aside and a new appraisement awarded on the twenty-seventh of the last named month. At the time of filing the amended petition in this case, there had been no other or further assessment of damages.

The amended petition states further that the defendants entered upon said land and built a fence over and across the same, and were threatening and about to construct the railroad thereon at the time this suit was commenced, the eleventh of March, 1887; that after the institution of this suit the defendant entered and constructed the railroad on the over the land. The amended petition prays for a mandatory injunction.

From this statement of the facts it will be seen that it does appear whether the railroad company entered upon the land before or after the court set aside the commissioner's report and awarded a new appraisement. But it does appear that the company paid into court for the plaintiffs the amount of the award on the very day that the report was filed. Having done this, the company insists that it had a right to enter upon the land and proceed with its work, and that the subsequent setting aside of the award made by the commissioners did not affect this right. On the other hand the plaintiffs insist that the company had no right to enter until the compensation to be paid for the land was fixed by the verdict of a jury, and until the compensation thus fixed was paid to plaintiffs or into court for them. Section 894 of the Revised Statutes of 1879 gives the circuit court, or the judge thereof in vacation, power to appoint commissioners to assess damages, the property owners being first served with summons; and makes it the duty of the commissioners to view the property, assess the damages, and make report thereof to the court; "and thereupon the said company shall pay to the said clerk the amount thus assessed for the party in whose favor such damages have been assessed; and on making such payment it shall be lawful for such company to hold the interest in the property so appropriated for the uses aforesaid."

Section 896 provides that this report may be reviewed upon exceptions filed within ten days after notice of the filing of the same, and then goes on to say, "and the court shall make such order thereon as right and justice may require, and may order a new appraisement, upon good cause shown. Such new appraisement shall, at the request of either party, be made by a jury, under the supervision of the court, as in ordinary cases of inquiry of damages; but, notwithstanding such exceptions, such company may proceed to * * * construct said road or railroad and any subsequent proceedings shall only affect the amount of compensation to be allowed."

The statute itself is free from difficulty or doubt. By its plain terms the condemning company may pay the amount awarded by the commissioners into court, and upon making such payment the company may enter into possession and proceed to construct the road. The amount awarded by the commissioners being paid into court for the landowner, the fact that exceptions are filed by either party and allowed, or even a jury trial awarded, can only affect the amount of the compensation, and does not deprive the company of the right still to proceed with the work. The first question which we have to determine is, therefore, whether the statute violates the constitution in so far as it allows the condemning company to take possession before the amount of compensation is finally fixed and settled. And the first inquiry is, whether it is in this respect in conflict with section 21 of article 2 of the Constitution of 1875, which declares: "That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three free-holders, in such manner as may be prescribed by law, and, until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested."

It is to be observed in the first place that this provision is emphatic in two respects: First. The compensation must be ascertained either by a jury or a board of commissioners of not less than three free-holders; and second, the compensation thus ascertained must be paid to the owner or into court for him before the condemning company can take possession. But this section does not guarantee to either party the right to a jury trial. The legislature is left free to prescribe either method of fixing the compensation and it is left free to prescribe the mode of procedure. There being no other constitutional limitations the legislature would have the power to make the commissioners' report final or to give a jury trial in the first instance and make the verdict final. It has however, seen fit to allow either party to file exceptions to the commissioners' report, and has provided for a new trial; but in doing all this it has at the same time said the payment of the amount awarded by the commissioners shall entitle the company to enter and proceed with the work. This right, allowing either party to have the award reviewed, and a rehearing are privileges which are conferred by the statute, and not by the constitution. This being so the statute cannot be said to violate the section of the constitution in question when it allows...