Arnold v. Covington & Cincinnati Bridge Co.
| Decision Date | 31 March 1864 |
| Citation | 62 Ky. 372 |
| Parties | Arnold, etc., v. Cov. and Cin. Bridge Co. |
| Court | Kentucky Court of Appeals |
1. Although the Covington and Cincinnati Bridge Company is a private corporation, yet, as the bridge, when completed, is to be used by the public as a common highway, the Legislature had constitutional power to authorize the company to take under proper restrictions, private property for its use. The same principle has been uniformly applied to turnpikes and railroads.
2. The provisions of the charter which require the jury to assess the cash value of the property to be condemned, and which allow the company, when they may wish to use the property pending an appeal from the assessment, to deposit the amount in any specie-paying bank in Covington to the credit of the proprietor, were intended to secure to the latter the cash or specie value of the property.
3. This interpretation does not involve the constitutionality of the " legal tender" act of Congress, which has no application to this charter or to any assessment under it.
4. The tender or deposit of depreciated paper, even it be a legal tender for an antecedent debt, was not a performance of the conditions created by the charter, and gave the company no right to the possession of the property.
5. As the owners were entitled to the ground until the assessment and payment of its value, the value at the time of the trial of the appeal was the true measure of assessment.
6. Where the property sought to be condemned had been conveyed to the separate use of a married woman, and was subject to a lien of the vendor, the judgment should have been for payment to her separate use, whenever the vendor should waive his lien.
7. Where a conveyance of land had been signed by a father to his son, and deposited with a third person as an escrow, to be delivered on conditions which had not been fulfilled judgment should have been for payment of the value to the father.
APPEAL FROM KENTON CIRCUIT COURT.
R RICHARDSON, for appellant, cited 7 Dana, 29; 1 J. J. M., 586; Const. of Ky., art. 13, sec. 14; 7 B. M., 167, 534; 7 Dana 81; 13 B. M., 1; 5 Dana, 25.
M. M. BENTON, for appellee, cited 6 Mon., 498; 1 Dana, 232; 4 Met., 207; 13 B. M., 31; U. S. Stat. at Large, pp. 532, 711; Am. L. Reg., Aug., 1864, p. 591; Same, April, 1864.
OPINION
The charter of the Covington and Cincinnati Bridge Company provides that it " shall have power and authority to proceed and condemn any and all real property that may be necessary for the location and erection or convenience of its bridge, toll-house, abutments, piers, anchor pits or approaches to said bridge, or to be in any way for the convenience of the same," by a prescribed proceeding under a writ of ad quod damnum, wherein a jury, on its own view and on extraneous testimony, " if necessary," shall assess " the cash value in damages which the proprietor or proprietors will sustain by an appropriation of the same in the manner proposed." It also provides that
On the 25th of April, 1863, the company proceeded, in the mode prescribed, to condemn to its use and assess the value of three lots of ground in Covington near the bridge--one as the property of Mrs. Willis, and the other two as the property of Thomas N. Arnold, children of James G. Arnold, who, as admitted owner of all these lots, had conveyed one to his said daughter's separate use, free from the control of her husband, retaining a lien for an unpaid balance of the price, and had signed a conveyance of the other two to his said son, and deposited it with a stranger as an escrow to be delivered on prescribed conditions which do not appear to have been fulfilled, and, consequently, there is neither evidence nor presumption of a delivery of the deed.
The jury on the ground having assessed the value of one lot as the property of Mrs. Willis, and of the other two as the property of Thomas N. Arnold, they and their father, James G. Arnold, appealed to the circuit court of Kenton. And thereupon the bridge company deposited in a non-specie-paying bank, in paper currency, the aggregate amount of the assessment, which the appellants refused to accept.
On the trial in the circuit court, nearly a year after the appeal, the appellants offered to prove the value of the lots at that time of the trial; but the court restricted the assessment of value to the time of the first inquisition, and instructed the jury, at the instance of the appellee, that if they should find that the lots are " necessary for the purposes of the bridge they must assess the value thereof in cash as of the 25th of April, 1863." On that instruction, and without viewing the ground, the jury reduced the aggregate of the first assessments $1,200, and the company having tendered the amount in court in U. S. Treasury notes, the court confirmed the verdict, and ordered the payment of the paper as tendered to Mrs. Willis and to Thomas N. Arnold in their respective portions as assessed. This appeal by James G. Arnold, Thomas N. Arnold and Mrs. Willis seeks the reversal of that judgment.
In limine the counsel for the appellants insists that as the company is a private corporation, the Legislature had no constitutional power to authorize it to take and apply to its own use private property, even on payment of its value, without the owner's consent. In this conclusion we cannot concur. Admitting the premise, the conclusion is neither legal nor logical; for although the company may use the bridge for its own profit, yet it must permit its use by the people for the public convenience as a common highway. As a viaduct it is an integral and useful part of a continuous line of national travel, and for that purpose is as much dedicated to public use as it could have been had it been in all respects public property and erected at public expense.
It is this object of public use and right to enjoy it that makes it a public highway, and legalizes the contested authority conferred by the charter. In the same way railroads and turnpikes are made by private capital directly for the profit of the contributing stockholders, but incidentally for public use and benefit. And because such highways thus owned and constructed by private persons are dedicated to public use and subserve the purposes of social and commercial intercourse, and thus promote the public welfare, the judiciary has uniformly maintained the constitutionality of legislative authority to all such corporations to take private property, as far as may be essentially useful, by paying the owner the assessed value of it. But the constitution constructively requires an impartial assessment, by a judicial process, of the actual value in money, and full payment, before private property shall be appropriated to public use. Any other interpretation might frustrate the conservative aim of the great guaranty of private property against a capricious and unjust assertion of the inherent right of eminent domain. And, for affectuating this chartered security, the Legislature, knowing that any other than the metallic currency is frequently and extremely fluctuating, and that the latter is the only safe and stable representative of value, wisely required, in this company's charter, a judicial assessment of the value " in cash, " and either a payment in cash or a deposit of the money in a " specie-paying bank." For these stringent requisitions we can see no other object than to secure to the owner the cash or specie value. It seems to us that, had not this been the provident purpose, the unusual requisition peculiar to this charter, to assess in cash, and deposit the amount so fixed in a " specie-paying bank," from which it could be drawn either in specie or its equivalent in paper, would never have been prescribed.
This literal, and, as we think, obvious interpretation, does not involve the constitutionality of the tender act passed by Congress in February, 1862....
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