Chesapeake v. Bradford. The Chesapeake

• Decision Date: 24 February 1873
• Citation: 6 W.Va. 220
• Parties: Chesapeake and Ohio R. R. Co., v. Bradford. The Chesapeake and Ohio Railroad Company Plaintiff, in the action and Plaintiff in error, against Cora P. Bradford, Lelian C. Bradford and William A. Beiadford, Jr., Defenddants in the action and defendants in Error.
• Court: West Virginia Supreme Court

6 W.Va. 220

Chesapeake and Ohio R. R. Co.,

v. Bradford.The Chesapeake and Ohio Railroad CompanyPlaintiff, in the action and Plaintiff inerror, against Cora P. Bradford, Lelian C.Bradford and William A. Beiadford, Jr., Defenddants in the action and defendants inError.

Supreme Court of Appeals of West Virginia.

Decided February 24th, 1873,

Syllabus.

1. In a proceeding by a Kailroad Companj-to take lands for the use of its road, against the owner of the land, it is error for the Court on confirming the report of the Commissioners, and ordering the same to he recorded to render judgment against the applicant for the amount of damages ascertained by the report.

2. At any time within twelve months after the report of the Commissioners has been confirmed, and ordered to be recorded, the sum so ascertained, with legal interest thoreon, from the date of the report until payment, may be paid by the applicant to th'e persons entitled thereto, or into Court.

3. W. made his will and, the 2nd clause thereof is in these words; to wit: "2nd I give and bequeath unto ray daughter, Amelia during her natural life, and after death to such children, or child, as she may leave, my interest in the land conveyed to me by Jas. Hewett, by deed bearing date on the 16th day September, 1838, and of Record in the Clerks office, lying above Lens Creek; also, the interest conveyed to me by James Armstrong, in said lands, by deed of record in Clerks office, together with the appurtenances thereunto belonging, excepting therefrom a burial ground in the field, of fifty feet square enclosure. Also so much of my interest in the estate of Leonard Morris, deceased, conveyed to me by James Hewett, and of record in the clerks office. All of that part of my interest, that is, in the old field or River survey, and all my interest that is on the back land above Lens Creek, and the left hand fork on the same. * * * If my daughter Amelia shall depart this life without children or child, then in that event she shall have the right lo dispose of the aforesaid property by will, as she may deem fit or best." W. died after making his will, and his daughter has three children, who are infants, and she is still living. In a proceeding to take part of the land devised by the will for the use of an incorporated railroad company, the commissioners appointed to ascertain a just compensation to the owners of the estate, proposed to be taken, in ascertaining the damages, do so, upon the supposition and principle, that the three infant children are the absolute owners in reversion of the estate', without limitation or contingency, after the expiration of the estate of Amelia, and assess the damage to the interest of the three-infants, (by name, as being theirs, without limitation or contingency) in the real estate proposed to be taken at $1600, and the court confirmed, said report and ordered it to be recorded; and rendered an absolute judgment against applicant for the whole amount of the damages and costs.

Held, this was error,

4. The applicant to take the property in preparing its petition (or rather attorney) filed in the proceedings, misstates under a misconception, the estate of the three infants in the reversion of the land) and after the Commissioners were appointed, and had adopted such misconception in ascertaining the damages, and who were entitled thereto, and acted upon it and signed their report, and and before it was formerly filed in Court the applicant asked leave of the Court to discontinue the proceeding.

Held, That the Court should have dismissed the proceedings under the circumstances and at the costs of the applicant.

The case Is stated in the opinion of the Court. Miller & Quarrier, and Laidley & Uogeman, for Plaintiff.

The appeal in this case is taken from the order of July 8th, 1872, allowing the Defendants to file the commissioner's report, and refusing to discontinue the case on Plaintiff's motion, at its cost; and, from the order of July 15th, 1872, overruling the exceptions to the commissioner's report, and rendering judgment against the Plaintiff in favor of the infant Defendants, Cora P., Lillian C, and William A. Bradford, by name. The matters arising upon the first of the above orders appear more particularly in the three bills of exceptions set out in the record, and which bills also bring up for review the action of the circuit court in permitting the introduction of testimony on motion to discontinue.

We humbly submit that there is error in all the above action of the court below, and for the following reasons:

First. The court should have passed upon Plaintiff's motion to discontinue before permitting Defendants to file the commissioner's report. It was a proper motion to make at any stage of the cause, and when made, should have been decided upon the case as it then stood.

Second. The plaintiff had a right to discontinue the case case at its costs at any time before the report was confirmed.

10 Howard U. S. Supreme Court 395; 7 Johnson's Chy, 49. 1 Wendell, 318; 3 Sandford, 689; 11 Wendell, 154; 10 Maryland 544; 20 Wendell, 618; 20 Vermont; 31 New Jersey, (2 Voom,) 72; 18 Johnson, 506.

Indeed, the plaintiff in condemnation cases is at liberty to abandon its effort to acquire the legal title to any tract of land, even after the entry of the order confirming the report and directing the payment of the money, and the defendant could not compel the plaintiff to take it. Under the ordinary and usual order confirming reports it would not be necessory to appeal to accomplish that purpose, but tne peculiar order in this case makes the appeal necessary.

The right to abandon and discontinue is clearly indi-cated in the eighteenth section of chapter forty-two of the Code of 1869, in relation to these proceedings. Under that provision the plaintiff has twelve months in which to pay to the owner of the land or into court the amount of the award, if the plaintiff fails to do so it acquires no title to the land which it set out to acquire, nor can it, thereafter, be compelled to pay the amount ascertained to be the compensation therefor. If after that time the plaintiff desires to acquire the title, it is clearly contemplated a new proceeding must be institututed for that purpose.

The fact that plaintiffs attorney carried the report to the clerk's office with other papers in similar cases could not effect the motion to discontinue. The report was not filed by being placed with the papers but could only be filed in court. Moreover, when the report was taken to the clerk's office as well as when finally filed, it bore an endorsement to the effect that plaintiff discontinued the proceedings at its cost.

Third. It was improper to permit any testimony to be introduced on the hearing of the motion to discontinue, especially touching Plaintiffs action in entering upon the land described in the report. Notwitstanding all such action, the Plaintiff had the undoubted right to discontinue.

Fourth. Notwithstanding the matters proved the court should have granted Plaintiff's application to discontinue. The fact that Plaintiff had entered upon the land and built embankments and made excavations was no ground for refusing it, even if the infant Defendants were the absolute owners of the fee in the land. Their remedy, if injured, was not by forcing upon Plaintiff in this proceeding the legal title of the land, but by their actions of trespass, case or ejectment for the unlawful entering.

3 Mass., 406; 7 Mass., 163; 3 Green, (N. J., Chy.,) 47; 15 Maryland, 199: 7 Smed & Marshall, (Miss.,) 568; 23 Indiana, 623; 34 Maine, 247.

Fifth. The Defendants' object in introducing testimony was evidently to show that some rights to compensation had vested in them, by Plaintiff's action in entering upon the land, and thus prevent a discontinuance. The authorities, however, show that no rights vest in either party until the report is confirmed, in fact not until the payment of money.

3 Sanford, 689; 20 Wendell, 618; 31 New Jersey, 72; 10 Maryland, 544; 27 Vermont, 39; 10 Iowa, 543.

But admitting, for argument's sake, that an entry by plaintiff vested in defendants a right to compensation, where the whole title is in the defendants, can that doctrine be applied to this case? It is evident Plaintiff had entered upon the land long before the institution of this proceeding, under a deed from Amelia W. Bradford who was the owner of a life estate in posssession, as well as the owner of a contingent estate in remainder. The record shows she was in life at the time the motion was was made. This deed conveyed the estate of Amelia W. Bradford in the land, and authorized an entry thereon,., and the actual use thereof by the plaintiff. By the entry under this deed no rights had become vested in the Defendants against the Plaintiff to compensation or anything else. The rights of the Plaintiff in the land were, indeed, greater than those of the Defendants. The Plaintiff occupied the place of Amelia W. Bradford, and if she survived the defendants, the Plaintiff would, under the deed, acquire the absolute estate in fee.

Sixth. It was certainly error to overrule the first exception endorsed on the report. Admitting for the present that the commissioners could properly assess the value of the contingent remainder in theland taken, and the damages to that interest in the residue of the tracts without, at the same time, ascertaining the value of the particular estate on which it is founded, it was manifestly error in the commissioners to report that the infant Defendants were entitled to that value. Their interest in the remainder is at best a contingent interest, which may be defeated, and in that event the assessment in their favor would be an illegal and unjust act to the party who would actually become entitled to it. In this case that party would be the Plaintiff, who, by purchase, has already acqured an estate that may turn out to be superior to that of Defendants.

Seventh. It was...