Blackwell, E. & S.W. Ry. Co. v. Bebout
| Citation | 91 P. 877,19 Okla. 63,1907 OK 72 |
| Parties | BLACKWELL, E. & S.W. RY. CO. et al. v. BEBOUT. |
| Decision Date | 04 September 1907 |
| Court | Supreme Court of Oklahoma |
Syllabus by the Court.
The statute of Oklahoma authorizing railroad corporations to exercise the right of eminent domain, and providing the procedure by which the damages to the landowner may be ascertained, and giving to the owner of the property as well as the corporation the right to institute such proceedings does not provide an exclusive remedy; but the common-law remedy afforded the owner in such cases may be pursued, at the election of the landowner, where his property is entered upon and appropriated for railway purposes.
Where condemnation proceedings have been instituted for the purpose of ascertaining the rights of the parties for the appropriation of right of way by a railroad company and of fixing the compensation of the landowner, such landowner cannot maintain an action at law to recover damages for the injury done to his property, and if such suit is brought it should be dismissed at the plaintiff's costs.
[Ed Note.-For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, § 35.]
After a railroad company has entered upon private lands and appropriated its right of way, either with or without the consent of the owner, either party may institute condemnation proceedings to determine the relative rights of the parties and ascertain the damages sustained by the owner of the property, or the landowner may sue for damages.
[Ed Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 694, 698.]
Where the person in whose favor a verdict is rendered is entitled to interest, and there is nothing in the record from which it can be determined whether or not the jury took into consideration the matter of interest in fixing the amount of their award, it will be presumed that they included interest.
[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3760.]
The judgment of the court must follow the verdict, and where the verdict is general and for a sum in gross, and the question of interest was not reserved by the court, and there is nothing in the record to indicate that the jury omitted interest, it will be presumed that it is embraced in the amount of their finding, and the court cannot add interest to the amount found by the verdict of the jury.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3760.]
Where there is no error in the amount fixed by the verdict of the jury, and the judgment is erroneous as to amount and as to the taxation of costs, this court wil not grant a new trial, but will vacate the erroneous judgment and enter in this court the judgment which the trial court should have rendered.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4507.]
Error from District Court, Woods County; before Justice J. L. Pancoast.
Condemnation proceedings by the Blackwell, Enid & Southwestern Railway Company and the St. Louis & San Francisco Railroad Company against J. J. Bebout. Judgment for defendant, and plaintiffs bring error. Modified.
Flynn & Ames, Jesse J. Dunn, and Dale & Bierer, for plaintiffs in error.
A. C. Towne, for defendant in error.
The defendant in error was the owner of the southeast quarter of section 28, township 20 north, range 10 west, in Woods county, Okl. The Blackwell, Enid & Southwestern Railway Company, without his consent, and before commencing any proceedings to acquire a right of way, constructed its railroad across said tract and appropriated a portion of it for its right of way, and subsequently leased or transferred its property to the St. Louis & San Francisco Railroad Company. After the strip of land for right of way had been taken and was being used for railway purposes, the Blackwell, Enid & Southwestern Railway Company instituted proceedings for condemnation of said strip for its right of way and for the assessment of damages. Commissioners were appointed and made the assessment and filed a report, fixing the damages at $275. In these proceedings the land was described in the notice, the application for appointment of commissioners, and the report of the commissioners assessing the damages, as the southwest quarter, when it should have been the southeast quarter, the land in controversy. The appraisers were sworn by a United States commissioner, an officer not authorized to administer oaths in such matters. These proceedings were all corrected by amendments by leave of the court, and a new report properly sworn to filed by the commissioners on September 21, 1903.
In order to acquire the right to bind the landowner in condemnation proceedings, the court must have jurisdiction of the property to be condemned, and also of the owner. In our judgment the proceedings in this case were so defective that the jurisdiction of the subject-matter was not acquired until the filing of the amended and completed report of the appraisers and the amendment of the notice and application to the court for the appointment of viewers, which was all done on the 21st day of September, 1903. Bebout, the landowner, had made his written demand for a jury trial prior to this date, and also refiled the original demand on said date. He had 30 days from the filing of the report of the appraisers in which to file his demand for a jury trial. In view of the failure to describe the land in either notice, the application or the report of the commissioners, and the failure of the commissioners to take any oath either before or after making the assessment and award of damages, we are satisfied that his time did not begin to run until the amendment and perfecting of the proceedings on September 21, 1903. Hence his demand for a jury trial was in time, and there was no error in allowing a jury trial upon the issue of the amount of compensation to be awarded the landowner.
The condemnation proceedings were initiated by the Blackwell, Enid & Southwestern Railway Company by service of the original defective notice upon Bebout upon the 20th day of December, 1902, and from that date to the time of trial various steps were taken in court looking to the completion and confirmation of the proceedings. On November 8, 1902, Bebout filed in the district court of Woods county his petition against the Blackwell, Enid & Southwestern Railway Company, and also the St. Louis & San Francisco Railroad Company, claiming damages for the right of way of said roads across his land. Four several summonses were issued, and an attempt made to serve the defendants; but the first three were successively set aside by the court upon special appearance and motion of the defendants. The fourth summons, which was finally served upon the defendants, was issued December 8, 1903, and served on the 10th day of December, 1903. The defendants appeared and pleaded to the petition, and, among other defenses, set up the pendency of the condemnation proceedings in the same court, to have the damages ascertained for the same causes. The reply was a general denial. On February 3, 1905, the Blackwell, Enid & Southwestern Railway Company served upon Bebout an offer to confess judgment for the sum of $550, and filed the same in court on the same day. On February 7, 1905, the court, by special order with consent of all parties, consolidated these two cases and ordered them tried together. The consolidated case was tried to a jury, and a verdict returned assessing damages in favor of Bebout for the sum of $480. Afterwards, on February 24, 1905, the court rendered judgment on the verdict for the sum of $589.20, which was the amount of the verdict, $480 plus $109.20, which the court allowed and added as interest from the date of the appropriation of the land by the railway company to the date of trial. The plaintiffs in error objected to the allowance of any interest by the court, and subsequently moved to modify the judgment and for a new trial; all of which were overruled by the court, and exceptions saved. It appears from the record in this case that the Blackwell, Enid & Southwestern Railway Company went upon the land in controversy and constructed its road across a portion of the tract, prior to the time that any proceedings were begun to have determined the compensation of the landowner. Subsequently, and before the landowner had begun any proceedings to recover compensation, the railway company instituted the condemnation proceedings which resulted in an award of $275 and the deposit of that sum in court for the use of Bebout. It was urgently contended by the company that Bebout had waived his right to a jury trial by having failed to file his demand for a jury trial within 30 days after the commissioners had filed their first report; but, as we have already said, the proceedings were so defective that jurisdiction by the court was not acquired of the subject-matter until the amendments were made inserting the correct description of the land, and the filing of the last report of award, which all appears to have been done on the same day. Bebout appeared to these amended proceedings and demanded a jury trial, which was allowed him. During the pendency of these proceedings he instituted his independent suit against both of the railway companies for damages, and issues were formed involving the identical questions in controversy in the condemnation case. It was contended in the court below, and also here, that the landowner was not entitled to maintain this independent suit for damages, but that his remedy was by the statutory proceedings for ascertaining the damages in such cases, and the determination of this question practically controls all other questions in the cause.
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