Baker v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1865
• Parties: LEVIN H. BAKER, ADM'R OF PETER LINDELL, Respondent, v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

36 Mo. 543

LEVIN H. BAKER, ADM'R OF PETER LINDELL, Respondent,

v.THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1865.

Appeal from Marion Circuit Court.

Carr, for appellant.

Lipscomb, for respondent.

HOLMES, Judge, delivered the opinion of the court.

This was an action of trespass under the “Act concerning trespasses.” (R. C. 1855, p. 1552,) for cutting down trees on the plaintiff's land. A first the defendant pleaded not guilty, and gave notice of a special de fence, founded on the “Act to incorporate the Hannibal and St. Josepl Railroad Company,” approved February 16, 1847, which gave the company power to take wood from lands adjoining the railroad for purposes of construction. Afterwards this answer was withdrawn, and judgment by default allowed to be taken against the defendant, upon an agreement for single damages only, and an inquiry was ordered. Upon the inquiry of damages, evidence was introduced by the plaintiff tending to show the number and value of the trees cut, and that they had been cut by authority of the defendant, and had been used for ties in the construction of the railroad, and the jury assessed the damages at $1,080.88. Previous to this assessment of damages. a motion had been made, supported by affidavit, to set aside the default, for the reason, among others, that the court had no jurisdiction of the subject matter of the action; and after the inquiry a motion for a new trial was filed, grounded in part upon the same objection. The evidence offered by the plaintiff, as well as by the affidavit, very clearly showed that the trees had been cut by authority of the defendant to be used in the construction of the railroad; and on the motion for a new trial, it was insisted on the part of the defendant that the same statute which gave the power to take trees for that purpose, also provided a mode of compensation, which was an exclusive remedy for the injury complained of.

The act of Feb. 23, 1853, amending “An act to incorporate the Hannibal and St. Joseph Railroad Company,” (R. R. Laws, p. 15.) gave the company “power by themselves or agents to enter and take from any land in the neighborhood of the line of their railroad, earth, gravel, stone, wood, or other materials, necessary for the construction and operation of said road;” and it provided a specific mode of proceeding by which the damages should be ascertained, at the instance of either party, by three impartial and disinterested householders, to be appointed by any justice of the peace, with an appeal to the county court. Under this act. the defendant had lawful power to do all that was proved to have been done, and an ample and convenient remedy was provided for making compensation for any injury that the plaintiff had sustained. It is well settled...