Chicago S. F. & C. Ry. Co. v. Eubanks

• Decision Date: 29 October 1888
• Parties: CHICAGO, SANTA FE AND CALIFORNIA RAILWAY COMPANY, Appellant, v. REUBEN EUBANKS, Respondent.
• Court: Kansas Court of Appeals

32 Mo.App. 184

CHICAGO, SANTA FE AND CALIFORNIA RAILWAY COMPANY, Appellant, v. REUBEN EUBANKS, Respondent.

Court of Appeals of Missouri, Kansas City.

October 29, 1888

Appeal from Chariton Circuit Court. --HON. G. D BURGESS, Judge.

REVERSED AND REMANDED.

The case is stated in the opinion.

Gardiner Lathrop and Kinley & Wallace, for the appellant.

(1) The requirement of the statute that exceptions must be filed within ten days after the service of notice upon the defendant of the filing of the commissioners' report fixes the limit of time beyond which exceptions cannot be filed, and nothing more. It was really intended to compel prompt action on the part of the defendant, while giving him a reasonable time within which to file exceptions. It cannot within any degree of fairness, be construed to mean that the railway company is obliged to wait until after the defendant is notified of the filing of the report before filing its exceptions thereto. Such a construction is strained and unreasonable. If excessive damages have been awarded, the wrong is done the railway company the moment the report of the commissioners is filed. Its right to except to that report accrues at that moment. It can file its exceptions at once, or it may wait, if it so desires, until just before the expiration of the ten days after the service of notice upon the defendant of the filing of the report. Longer than that it cannot wait. The statute is one of limitation, beyond the time provided by which exceptions cannot be filed by either party. Either party, however, may file exceptions at any time after the report of the commissioners is lodged with the clerk officially. (2) The exceptions once filed, the law would hold to be re-filed, if necessary, after notice served upon the defendant, without a new endorsement by the clerk. They were lodged with him officially on the fourteenth day of June, 1887, and continued to be in his official custody during the entire period of ten days after defendant was served with notice of the filing of the commissioners' report. It would be a meaningless ceremony to require him to mark upon the exceptions a re-filing after such date. The law does not compel any such course by the clerk, nor does it impose upon the railway company the duty of withdrawing its exceptions from the office of the clerk, and tendering the same to him to be filed anew, after such service of notice, under penalty of having its exceptions disregarded. (3) The affidavit of the clerk shows that defendant had due notice of the filing of the exceptions, and that this notice was given within ten days after defendant was served with notice of the award. This act of the clerk in notifying defendant that exceptions had been filed had the effect of re-filing the exceptions. (4) The following authorities amply sustain the positions which are here taken. Atherton, Adm'r, v. Corliss, Ex'r, 101 Mass. 40; Young v. The Orpheus, 119 Mass. 179; Levert, Ex'r, v. Read, Ex'r, 54 Ala. 52). In an argument of counsel in another case, approved and adopted by the court in its opinion in the Levert case, the following passage occurs: " Mr. Webster's first definition of this word (within) is: ‘ In the inner part’ ; his second definition is: ‘ In the limit or compass of, not beyond, used of place and time; ’ his fifth definition is ‘ not later than.’ The first or primitive meaning would not make any sense in this statute. But ‘ not beyond,’ ‘ not later than,’ clearly defines the intent of the law-makers, which was to fix a time after which claims could not be filed." The judgment ought to be reversed and the cause remanded in order that a hearing may be had upon the merits of the exceptions. " When time is spoken of, any act is within the time named that does not extend beyond it." Sanborn v. Ins. Co., 16 Gray 448, 455.

Thos. Shackleford and Syd. B. Burks, for the respondent.

(1) In the condemnation of land for right of way of a railroad, the powers possessed by a judge or court in appointing commissioners, reviewing and setting aside the report, etc are purely statutory, and the powers must be exercised at the time and in the manner provided by the legislature. Gray v. Railroad, 81 Mo. 125; Railroad v. Campbell, 62 Mo. 585; St. Louis v. Gleason, 93 Mo. 33. (2) Statutes giving the right of eminent domain are not to be extended, but must be strictly construed. 1 Wood's Railway Law, 643. Statutes giving the right of eminent domain must be by unequivocal words and in pursuing it all prescribed requirements must be strictly observed. 1 Wood's Railway Law, 643, and note; Matter of the City of Buffalo, 78 N.Y. 362; Matter of Commissioners of Washington Park, 52 N.Y. 131; Van Wickle v. Railroad, 3 N.J.Eq. 162; Mills on Eminent Domain, sec. 87. The condemning party must strictly follow the statute. Commissioners v. Humphrey, 47 Ga. 565. (3) It seems to be universally admitted that when the organic law of the state does not prescribe the mode of procedure in estimating land damages for the use of a railway company, it is competent for the legislature to prescribe the mode, and that mode so prescribed, must be strictly followed. 1 Redf. on Law of Railways, 285; Bloodgood v. Railroad, 14 Wend. 51; 1 Redfield Am. Railway Cases, 209. (4) The law requiring the notice of the filing of the report as required by section 896, Laws 1879, p. 162, must be strictly pursued, and no review can be had on written exceptions unless said exceptions are filed within ten days after service of the notice. There is no jurisdiction in the circuit court to entertain exceptions to the report until after notice served. Therefore, the filing of the written exceptions before notice served may be likened to the filing of answer before a suit is commenced. Cruger v. Railroad, 12 N.Y. 190. (5) It is a general rule in regard to all summary and inferior jurisdictions that the basis of this jurisdiction must appear upon the face of the proceedings. Hence it is essential, in order to give jurisdiction to review, that this notice of report of commissioners be given, and certainly an enquiry made by the attorney of defendant as to whether a report had been made is no waiver of the notice required by law. 1 Redfield on Railways, 377; Ellis v. Railroad, 51 Mo. 203; Lind v. Clements, 44 Mo. 540. These grants being in derogation of common-law right are to receive a reasonably strict and guarded construction, and nothing passes by implication. 1 Redfield Railways, 250; Bridge v. Bridge, 11 Peters 420; United States v. Aeredole, 6 Peters 691, 738; Commonwealth v. Railroad, 27 Pa.St. 339; Bradley v. Railroad, 21 Conn. 294. See, also, as to strictness of the law in regard to notice: 1 Redfield 255; Rutenberg v. Railroad, 21 Pa.St. 100; Williams v. Railroad, 13 Conn. 110. (6) The appellant, in its brief, cites no case in which land is attempted to be taken, in invitum, and cannot have any application to the case at bar. (7) The appellant cannot contend that defendant, either by himself or his attorney, waived any right he may have have had, by writing to know whether the award had been made, or exceptions filed. The act of the clerk in writing that exceptions were filed, could not have the effect of re-filing...