Union Depot Co. v. Frederick

• Decision Date: 25 March 1893
• Citation: 21 S.W. 1118
• Court: Missouri Supreme Court
• Parties: UNION DEPOT CO. v. FREDERICK et al.<SMALL><SUP>1</SUP></SMALL>

21 S.W. 1118

UNION DEPOT CO. v. FREDERICK et al.¹

Supreme Court of Missouri.

March 25, 1893.

CONDEMNATION PROCEEDINGS — JURISDICTION — COLLATERAL ATTACK — TITLE ACQUIRED — CONSTITUTIONAL LAW.

1. Gen. St. 1865, c. 66, § 5, which provides that, in proceedings to condemn land for railroad purposes, any number of owners, "residents of the same county or circuit," may be joined in one petition, must be read in connection with section 2, which authorizes the inclusion in the same petition, of residents, nonresidents, and persons unknown; and hence section 5 will be restricted to permitting those whose interests lie within the county or circuit to be joined as parties defendant, and not as prohibiting the joinder in the petition of a nonresident with residents. Railroad Co. v. Kellogg, 54 Mo. 334, and Railway Co. v. Carter, 85 Mo. 448, overruled.

2. Where a nonresident has twice appeared in proceedings to condemn his land for depot purposes, the court acquires jurisdiction over him, though the service of process on him may have been defective.

3. Condemnation proceedings are judicial in their nature; and while the statutory requirement for acquiring jurisdiction of the person and of the subject-matter must be followed with great strictness, yet, when jurisdiction is shown, the judgment of a special tribunal in such a case stands on the same footing of unquestionable verity as does the judgment of a court exercising general jurisdiction.

4. The judgment of such a tribunal, which has acquired jurisdiction of the subject-matter and of the parties, is not subject to collateral attack on the ground that the damages to two separate parcels of land belonging to different parties were assessed in a round sum, instead of to each owner separately, as required by Gen. St. 1865, c. 66, § 5, since such a judgment, though erroneous, is not void.

5. Commissioners in condemnation proceedings have the right to divide a condemned parcel of land into two parts, and assess the damages to each owner separately; and the fact that one of such owners afterwards recovers in ejectment a portion of the land from the other owner cannot invalidate the condemnation proceedings.

6. Const. 1875, art. 2, § 21, provides that the fee of land taken for "railroad tracks" without the consent of the owner shall remain in the owner subject to the use for which it is taken. Held that, conceding that this provision applies to land condemned for depot purposes, Sess. Acts 1871, pp. 60, 61, § 4, which authorizes the condemnation of land for depot purposes, and provides that such land, and any interest therein, shall belong to the corporation, is not unconstitutional, since the corporation can acquire only an easement under the constitutional provision.

Sherwood and Burgess, JJ., dissenting.

In banc. Error to circuit court, Jackson county.

Action by the Union Depot Company against John B. Frederick and another to restrain defendants from executing a writ of possession. There was a judgment in plaintiff's favor, and defendants bring error. Affirmed.

Gage, Ladd & Small, for plaintiffs in error. Pratt, Ferry & Hagerman, for defendant in error.

MACFARLANE, J.

The suit is injunction to restrain defendant Frederick, and his codefendant, the sheriff, from executing a writ of possession against the Missouri River, Ft. Scott & Gulf Railroad Company for a certain parcel of land, for which defendant Frederick had obtained a judgment in ejectment against said railroad company. A demurrer to the petition was overruled, defendants declined to plead further, and a perpetual injunction was adjudged, to reverse which this writ of error is prosecuted. The question is whether the petition states facts which entitle plaintiff to the relief granted. The petition charges that in March, 1875, Frederick sued the said railroad company for the possession of a tract of land in Kansas City. On June 4, 1879, he recovered judgment, and the case was appealed to the supreme court, where the judgment was affirmed in 1884. 82 Mo. 402. The plaintiff, Union Depot Company, is a corporation organized under the general laws of the state, (Acts 1871, pp. 59-61,) with power to maintain a union depot at Kansas City. Pending the aforesaid ejectment suit viz. April, 1877, plaintiff commenced condemnation proceedings to secure land for the depot. A portion of the land involved in the ejectment suit was included in the proceedings for condemnation. These proceedings resulted in the appointment of commissioners, a report of the commissioners assessing the damages, and an order of the court approving and confirming the report; and the question here is whether the proceedings were sufficient to entitle the plaintiff to the use of the land in suit for its depot. If so, then the injunction was properly granted; if not, the judgment should be reversed. The petition for condemnation was against the said Frederick, James F. Joy, said railroad company, Nathaniel Thayer, F. W. Palfrey, and George W. Weld, trustees, and others, as defendants. A tract of land called in the petition the "second parcel" was described, and the names of the owners given, as follows: "Beginning at a point on the east boundary line of Santa Fe street, and two hundred and ten (210) feet south of the southeast corner of Santa Fe street and Union avenue; thence running south along said east line of Santa Fe street, three hundred and seventeen (317) feet; thence east at right angles to said Santa Fe street, ten (10) feet; thence northeasterly, two hundred and fifty-three (253) feet, to a point in the west line of the northeast quarter of section six, (6,) township forty-nine, (49,) of range thirty-three, (33,) which point is one hundred and forty (140) feet south of the southeast corner of lot No. six, (6,) of block number forty-two, (42,) in Turner & Co.'s addition to the city of Kansas; thence north along said west line, ninety (90) feet; and thence west, and at right angles thereto, one hundred and twenty (120) feet, to the place of beginning, — containing fifty-nine one hundredths (59-100) of an acre, more or less. That the names of the owners of said second parcel are as follows: Of that part of such parcel, south of a line running east and west across the same, fifty (50) feet north, and parallel with the south line thereof, the Farmers' Loan and Trust Company, a corporation created and existing under the laws of the state of New York, trustee, and the Leavenworth, Lawrence & Galveston Railroad Company, a corporation created and existing under the laws of the state of Kansas; of the balance of such parcel, north of said line across the parcel, James F. Joy, John B. Frederick, the Missouri River, Fort Scott and Gulf Railroad, a corporation created and existing under the laws of the state of Kansas, and Nathaniel Thayer, F. W. Palfrey, and George W. Weld, trustees." The petition charged that a number (naming them) of defendants were nonresidents. The petition was presented to the circuit court, and June 28, 1877, was fixed as the time for hearing it. Timely summons was served on all resident defendants, and notice by publication was duly given to nonresident defendants. On June 28, 1877, the petition was heard by the court, Frederick appearing by attorney, and commissioners were thereupon appointed to assess the damages. The commissioners viewed the land, and returned to the clerk a report of the damages allowed, which was filed in July, 1877, and recorded by him. The commissioners allowed $500 damages to the owners of the south 50 feet of the second parcel. About that tract none of the parties to this suit are concerned. The remainder of that parcel the commissioners divided into two tracts, and assessed the damage to the owners of the south one of them at $2,937.34, and of the one north at $2,450. The owners of each of these were stated in the report to be Frederick, Joy, said Ft. Scott Railroad, and the three trustees, Thayer, Palfrey, and Weld. Upon filing the report the amount of damages assessed was paid to the clerk. The petition then charges that upon filing said report the clerk duly notified all persons whose lands were affected thereby, including said Frederick, of the filing of said report, and the payment to the clerk of the damages. No written exceptions were filed to the report, by Frederick or any other defendant. On the 25th day of July, the report came on for final hearing, before the court, said Frederick appearing by attorney, and the same was approved and confirmed, and the title to the land therein described was by decree of court vested in the Union Depot Company as owner thereof in fee simple absolute. The petition charges, further, that said tract of land for which said commissioners allowed $2,937.34, covers and includes a part of the land sued for by said Frederick in said ejectment, describing such part by metes and bounds. We are unable to determine from the description of the two tracts whether or not one includes a part of the other, or how much, and will take as true the allegation of the petition.

In division 1 of this court, an opinion was delivered by Sherwood, C. J., upon certain questions involved, in which we fully concur. That opinion on these questions is as follows:

"1. The condemnation proceedings, which are spread forth at large in the petition of the plaintiff corporation, form the only basis upon which the right of that corporation to injunctive relief can be maintained; and the sufficiency of those proceedings is questioned by the general demurrer filed. It becomes necessary, therefore, to examine those proceedings with care, in order to be able to reach a correct conclusion. Various grounds are stated to show that such proceedings did not conform to the law in such cases made and provided; and among them that Frederick, defendant, a nonresident, and yet joined with residents, is urged as being contrary to the statute, and fatal in its character. Gen. St. 1865, p. 351, c....