Canton, Aberdeen & Nashville Railroad Co. v. French

• Decision Date: 19 January 1891
• Citation: 68 Miss. 22,8 So. 512
• Parties: CANTON, ABERDEEN & NASHVILLE RAILROAD CO., v. MATTIE FRENCH
• Court: Mississippi Supreme Court

8 So. 512

68 Miss. 22

CANTON, ABERDEEN & NASHVILLE RAILROAD CO., v. MATTIE FRENCH

Supreme Court of Mississippi

January 19, 1891

FROM the circuit court of Monroe county, HON. LOCK E. HOUSTON Judge.

Action of trespass instituted by appellee against appellant in April, 1889, for entering upon and cutting down trees and digging ditches on plaintiff's land, and in building and operating a railroad thereon. The defendant interposed a plea of general issue, and a special plea setting up condemnation proceedings in 1883, prior to the entry, and tender of the amount awarded plaintiff. To this plea a demurrer was sustained. Thereupon the defendant filed another plea averring that in October, 1889, after suit brought, and about five years after the road was built, other condemnation proceedings were bad, and that $ 150, the compensation therein awarded plaintiff as the owner of the land, had been accepted by her. To this plea a demurrer was also sustained and the cause was tried on the general issue, resulting in a verdict and judgment against the defendant for $ 450 damages. It was shown that the road was constructed in 1884, and plaintiff's evidence was directed to the point of showing all damages sustained by her up to the time of the condemnation in October, 1889. The testimony was conflicting as to the amount of damages, but there was evidence in support of the finding of the jury. On the trial, the court at the instance of plaintiff, gave the following instructions, which were objected to:--

"1. The court charges the jury that this is a suit by Mrs. French against the Canton, Aberdeen & Nashville Railroad Company for damages for trespass committed by the R. R. Company in building its track upon the land of Mrs. French, without her consent, throwing up embankments and digging ditches thereon, and all the jury have to do is to determine the amount of such damage. Now if the jury believe from the testimony in the case that the plantation of Mrs. French was damaged by the building of said railroad or by the digging of said ditches or throwing up of said embankments, they will find for the plaintiff the amount of damages so sustained by plaintiff as they may think the testimony warrants."

"2. The court charges the jury that the only thing they have to consider in this case is whether Mrs. French was damaged by the building of the railroad, and if so damaged what amount of damages she has sustained. And if the jury believe that Mrs. French, or her plantation, was damaged by the building of said railroad, independent of any accessibility to the outside world which the running of trains thereon caused, they will find for plaintiff the amount of the damages sustained by her as they may believe the testimony in the case shows."

"3. The court charges the jury that the condemnation proceedings of Oct. 1889, and the payment of $ 150.00 thereunder, can have no effect whatever on the damages sustained by plaintiff by the railroad trespass on her land from 1884 to Oct. 1889. And if the jury believe from the evidence that plaintiff suffered $ 500.00, or any other amount of damage, by reason of said trespass of said railroad company at any time before Oct. 1889, then the jury will find their verdict for plaintiff for the amount so found."

Motion for new trial overruled. Defendant appeals. The opinion contains a further statement of the case.

Affirmed.

W. P. & J. B. Harris, for appellant, filed a lengthy brief making the following points:--

1. It was error to sustain the demurrer to defendant's second plea, and in excluding from the jury the facts therein set up going to show that the land of plaintiff was properly condemned in 1883, before the road was built, and that the amount of compensation awarded was tendered to plaintiff. It was a mere clerical error that the, lands were described as being in sec. 17, instead of 20. The true line was surveyed and located, and the land was sufficiently described regardless of this clerical error. The true owner was named and notified, and the land was well identified. It was a straitened and over- strict view to hold that the condemnation was a nullity because of a mistake in the number of the section.

2. If mistaken in the first proposition, we submit that it was error to reject from the consideration of the jury the second condemnation and the receipt of the award therein by plaintiff before the trial. That would have affected the amount of the recovery. In condemnation proceedings the compensation to be awarded has been held to include not only the value of the land taken, but the direct effect of making the road by excavation, embankments and the proper use of the adjacent land. Brown v. Beatty, 34 Miss. 227; Isom v. Railway Co., 36 Ib. 300; Railway Co. v. Moye, 39 Ib. 374; 6 Am. & Eng. Enc. Law, p. 618.

The condemnation gives all the action of trespass covers, and a little more. Here the plaintiff complained of the embankments, excavations and track, and the damage to adjacent lands. The action contemplated recovery for a permanent injury to the property that would impair its use and value.

We admit the doctrine of the following cases decided by this court: Railroad Co. v. Dickson, 63 Miss. 380; Beck v. Railroad Co., 65 Ib. 172; Railway Co. v. Day, 67 Ib. 227. In the first case mentioned the court meant that trespass was an injury to possession, but that it might not include in its scope permanent injuries to the soil. Having brought the action for permanent injury to the fee, the plaintiff should have been limited to the temporary disturbance from these injuries for the time anterior to the condemnation; but this was not done. There was no effort to show the damages caused by a disturbance of the use during the five years, nor what amount of timber was cut or its value. Plaintiff lumped the injuries as affecting the use of the land with the loss or destruction of the land. This was exacting payment for the same thing twice.

E. H. Bristow, for appellee.

1. The demurrer was properly sustained to the second plea, which set up the attempted condemnation proceedings in 1883. These proceedings were void because: 1. The land was described as being in section 17 when it was in 20; 2. There was no proper service of process on the owner, and no appearance by her.

2. The plaintiff was not estopped because she "stood by," knowing of the construction of the railroad. Thornton v. Railroad Co., 84 Ala. 109; Blodgett v. Perry, 97 Mo. 263. She only waited five years to bring the suit, whereas the law allowed her to stand by for six years. Code 1880, § 2669.

3. The plea puis darrein continuance, attempting to set up three separate defenses, was demurrable for duplicity, if nothing else. State v. Bank, 33 Miss. 499. But this court has emphatically settled the question on the merits attempted to be set up by this plea. Trespass committed is not involved in the determination of the due compensation for the right of way. Railroad Co. v. Dickson, 63 Miss. 380; Beck v. Railroad Co., 65 Ib. 172.

The condemnation in 1889 could not adjust the damages for the trespass of 1884.

4. There was no error in the instructions, and the verdict of the jury is amply sustained by the testimony. Plaintiff only claimed actual damages arising prior to the condemnation in 1889. The verdict is for an amount really less than plaintiff was entitled to recover, and of this the defendant cannot complain. Railroad Co. v. Doggett, 67 Miss. 250.

It was proper for the court to refuse to allow the defendant to bring before the jury in mitigation of damages the misleading circumstance that there was a subsequent, condemnation of the land.

In Railroad Co. v. Fite, 67 Miss. 373, there was but a technical violation of duty and no wilful wrong; still the intimation was plain that had there...