Chesapeake &. O. Ry. Co v. Lane
| Decision Date | 15 November 1932 |
| Docket Number | No. 7287.,7287. |
| Court | West Virginia Supreme Court |
| Parties | CHESAPEAKE &. O. RY. CO. v. LANE et al. |
Syllabus by the Court.
It is a general rule that a litigant who enforces, or otherwise accepts the benefit of, a judgment, order, or decree, cannot afterward have it reviewed for error, or deny the authority which granted it. Eakin v. Eakin, 83 W. Va. 512, 98 S. E. 608.
Error to Circuit Court, Greenbrier County.
Condemnation suit by the Chesapeake & Ohio Railway Company against C. C. Lane, trustee, and others. Both parties excepted to report of compensation by commissioners, and to review the judgment entered on verdict of a jury for compensation, plaintiff brings error.
Writ of error dismissed.
Fitzpatrick, Brown & Davis and McDaniel Purcell, all of Huntington, for plaintiff in error.
J. W. Maxwell, of Beckley, for defendants in error.
This is a suit to condemn land for railroad purposes, and involves a taking of 3.63 acres out of a tract of about 23 acres, at Second Creek Tunnel of the Chesapeake & Ohio Railway Company in Greenbrier county, which tract adjoins the right of way of the railroad in a crescent shape for a distance of about one-half mile on the northeast side of the railroad right of way. The title to the tract is held by Lane, trustee for beneficial owners named as defendants. The land consists of a cliff of limestone rock of little practical value except for quarry purposes, the back line of which runs a distance of from 10 to 125 feet from the edge of the cliff. The present line of railroad skirts the base of the cliff, which is about 200 feet high, and the back line of the tract varies from 200 to 500 feet horizontal distance from the present location of the railway tracks. In order to straighten its tracks, the railroad company proposes to tunnel under the cliff owned by defendant, splitting it into two tracts by taking 3.63 acres and leaving 3.5 acres on the southwest side of the tracks and 15.77 acres on the northeast side thereof. Along the northeast portion (the 15.77 acres) the tracks will be moved away from the base of the cliff nearer the Greenbrier river from 50 to 200 feet, thus straightening the tracks. The new tunnel will penetrate the cliff about 800 feet east of the present tunnel under the same cliff.
Proceeding under Code 54-2-15, serial section 53S6, plaintiff gave bond and took possession, and proceeded with the work on the proposed new tunnel. Commissioners selected reported compensation for the land taken and damages to the residue at $258.75; both parties excepted, and demanded a jury, which returned a verdict for $3,500, on which judgment was entered August 6, 1931, and from which plaintiff prosecutes error.
The only issue in the trial was the amount of compensation, and plaintiff here asserts that the judgment is excessive; that the jury arrived at its verdict under inadmissible evidence, and without any evidence that the land had a market value as a quarry site.
Counsel for defendants says the controversy is a moot one, and moves a dismissal of the case, because the amount of the judgment, interest, and costs has been paid by defendant to the clerk, who has distributed the same to defendants through their counsel, as shown by the circuit court clerk's certificate.
After the judgment had been entered, which provided (in the language of the statute) that upon payment of the judgment, interest, and costs, the title to the real estate taken should be vested in the applicant, plaintiff delivered to the clerk a draft covering the judgment, interest, and costs without any instructions as to its disposition, and the clerk immediately sent his cheek therefor to defendants' counsel. Plaintiff, upon learning of the action of the clerk in so doing, protested to the clerk, who immediately stopped payment on his check, and notified plaintiff's attorney to whom the check had been sent. Defendants' attorney had already deposited the clerk's check for collection and had issued his checks in settlement with his clients, and upon conference of counsel representing both sides, in order to relieve defendant's counsel of the embarrassment of having checks protested or payment thereon stopped, it was agreed that immediate repayment to the clerk would not be insisted upon, but that the plaintiff's rights would not be prejudiced in any manner. This situation does not make the case moot, but calls for a decision as to whetherthe condemnor is estopped from prosecuting error. If so, the writ has been improvidently awarded. If not, the points of error (1) inadmissibility of certain evidence, and (2) lack of evidence of the value of the cliff as a quarry site, must have decision.
The judgment was entered August 6, 1931, and the writ of error was granted in February, 1932. At some time between these dates, presumably within three months from the date of judgment (the record is silent), condemnor paid to the clerk the amount of the judgment, interest, and costs. Payment to the clerk was...
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