Corey v. Chicago, Burlington and Kansas City Railway Co.

• Decision Date: 10 March 1890
• Parties: Cory, Plaintiff in Error, v. The Chicago, Burlington and Kansas City Railway Company
• Court: Missouri Supreme Court

13 S.W. 346

100 Mo. 282

Cory, Plaintiff in Error, v. The Chicago, Burlington and Kansas City Railway Company

Supreme Court of Missouri

March 10, 1890

Error to Linn Circuit Court. -- Hon. G. D. Burgess, Judge.

Affirmed.

A. W Mullins with B. J. Northcott for plaintiff in error.

(1) The alleged condemnation proceedings did not follow the law with the strictness required by the following authorities Ells v. Railroad, 51 Mo. 200; Strang v Railroad, 16 Wis. 666; Nelson v. Brodhack, 44 Mo. 596; R. S. 1879, sec. 892; Railroad v. Campbell, 62 Mo. 585; Cunningham v. Railroad, 61 Mo. 33. Every requisite of the statute having a semblance of benefit to the owner must be complied with. Mills on Em. Domain, sec. 84, and authorities cited. (2) The condemnation proceeding was not prosecuted in the name of the real party in interest. The St. Joseph and Iowa Railroad Company instituted the condemnation proceeding twenty days after it had sold all its right, privileges, franchises, etc. R. S. 1879, sec. 3462. (3) There is no sufficient description of the real estate sought to be acquired in the petition in the condemnation proceeding. Railroad v. Taylor, 43 Mo. 35; Mills on Em. Domain, sec. 115, and authorities cited. (4) The commissioners should have taken the oath, as required by special charter, before entering upon the duties of their appointment, and the owner should have notice before damages were assessed. Newell v. Wheeler, 48 N.Y. 486; Stockett v. Nicholson, Walk. (Miss.) 75; Mayor v. Delachaise, 22 La. Ann. 26; New Orleans v. Sohr, 16 La. Ann. 393; Pierce on Railroads, p. 178, and note. (5) No attempt was ever made to agree with plaintiff as to the amount of his damages before beginning the condemnation proceeding. This was a necessary requisite. R. S. 1879, sec. 892. The damages were not tendered or paid before taking possession of the strip on which the railroad was built. Loup v. Chamberlain, 20 Wis. 135; Crittenden v. Wilson, 5 Cowen, 165; Ash v. Cummings, 50 N.H. 591; Daniels v. Railroad, 35 Iowa 129. A judgment that is not paid does not operate as a compensation. Provolt v. Railroad, 57 Mo. 256; Powers v. Armstrong, 19 Ga. 427; Thompson v. Railroad, 3 How. (Miss.) 240; Mills on Em. Domain, secs. 90, 131. There can be no innocent purchaser from him who never had a title, and the title had never been divested out of Cory. Mills on Em. Domain, sec. 144, and authorities cited. (6) The circuit court erred in giving defendant's third declaration of law. Nothing short of a delay of ten years (the statutory limitation against real, not civil, actions) will amount to bar plaintiff's claim for damages or raise a presumption of a waiver. "Such sales (as that to defendant in this case) are ordinarily made by insolvent corporations, and it would be a hardship to raise a presumption of waiver against an owner short of the limitation for real actions." Mills' Eminent Domain, sec. 144; Gilman v. Railroad, 37 Wis. 319; Chicago v. Wright, 69 Ill. 318; Railroad v. Darat, 61 Ill. 231 (qualifying Curry v. Mount Sterling, 15 Ill. 320).

Karnes & Krauthoff with L., T. Hatfield for defendant in error.

(1) It was competent for Cory to waive the right to compensation given him by the law; and this waiver could be by parol, and when it was acted on by the company became irrevocable. Baker v. Railroad, 57 Mo. 265; Clement v. Durgin, 5 Me. 9; Seymour v. Carter, 2 Met. 520; Marble v. Whitney, 28 N.Y. 297; Cottrill v. Myrick, 12 Me. 222; Fuller v. Commissioners, 15 Pick. 81; Railroad v. Brownsville, 45 Tex. 88; Dietrich v. Murdock, 42 Mo. 279. (2) Plaintiff having had full knowledge of the appropriation of his land and the expenditure of money in building the railroad over it, and having acquiesced in such action by failing to make timely objection, is now, after the lapse of nearly ten years, estopped from maintaining this suit. Provolt v. Railroad, 57 Mo. 256; Gray v. Railroad, 81 Mo. 126; Pryzbylowicz v. Railroad, 17 F. 492. (3) The alleged defects in the condemnation proceedings are not of that character which make them coram non judice and subject to this collateral attack. Evans v. Haefner, 29 Mo. 141, 148. (a) The description is sufficient if the land can be identified from what is made to appear. Kohlhepp v. Roxbury, 120 Mass. 596. Reference to an attached map or schedule is sufficient. Matter of Washington, 58 N.Y. 131. The description in the report of the commissioners is amply precise and complete and fully supplies any previous defect in this respect. Lower v. Railroad, 59 Iowa 563. In this case the railroad had been constructed and there was no room for doubt or surprise as to identity and quantity of the land. Railroad v. Kellogg, 63 Mo. 465. Jurisdiction over the subject-matter was conferred by the filing of the petition and over the person of defendant by service of notice, and want of a precise description could not impair this jurisdiction. Quayle v. Railroad, 63 Mo. 465. (b) As the St. Joseph and Iowa Railroad Company first took the land and actually constructed the railroad over it, it certainly was the proper party to justify this act by acquiring the title to the strip appropriated by proper proceedings. (c) The condemnation proceeding could be had under the general law. G. S. 1865, p. 351, sec. 1; Cape Girardeau, etc., Co. v. Dennis, 67 Mo. 438. It has been held that the general or special law could either be followed as the company might elect. Railroad v. Muder, 49 Mo. 165; Provolt v. Railroad, 69 Mo. 633; Cunningham v. Railroad, 61 Mo. 33. (d) The petition contained the averment in the language of the statute, that the company "cannot agree with the defendants as to the amount of compensation to be paid." G. S., p. 351, sec. 1. This was sufficient to fix the jurisdiction of the court, and such jurisdiction cannot be negatived by a collateral attack based on parol proof that there had been, in point of fact, no such failure to agree. Railroad v. Rosseau, 8 Iowa, 373, 377; Dyckman v. Mayor, 5 N.Y. 434, 440; Railroad v. Muder, 49 Mo. 165; United States v. Reed, 56 Mo. 565, 572; Railroad v. Carter, 85 Mo. 448, 451. (e) The constitution then in force did not in terms require the damages assessed to be paid before the land was appropriated. Const. 1865, art. 1, sec. 16. (f) The plaintiff is not in a position to complain of delay in others. And, as is shown by his own testimony, he waived any payment of the damages assessed to him, and accepted employment in lieu thereof. It was, therefore, entirely unnecessary to pay the money into court for him.

Sherwood, J. Ray, C. J., Black and Brace, JJ., concur.

OPINION

Sherwood, J.

-- This cause has been transferred to this court from the Kansas City court of appeals, on the ground that the title to real estate is involved. It is an action for one thousand dollars' damages for taking plaintiff's land in the construction of a railroad wrongfully and without legal authority.

Briefly told, the essential facts are substantially these: In the month of July, 1872, the St. Joseph and Iowa Railroad Company resolved to build a branch road, and on the thirteenth of that month proceeded to condemn the right of way through the grounds of various persons, and, among others, those of plaintiff; and the result of such proceedings was that the plaintiff was duly notified thereof and the commissioners made report of their action, which was duly recorded August 5, 1872. The report of the commissioners awarded to plaintiff the sum of one dollar; but he made no objection and saved no exceptions to the report.

The defendant, in its answer, set up title to the land in controversy under, and by virtue of, a purchase thereof, in 1880, from the trustee, who bought under a decree of foreclosure of the premises in 1876, and also claimed to be the purchaser without notice, and after due examination of the records aforesaid, and upon the ground of the plaintiff's acquiescence in the report aforesaid, and by reason of his residing continuously near the railroad ever since the work complained of was done, and without making any claim for damages or any complaint about the same to the receiver appointed by the federal court, who had the road in charge upwards of six years. The present action was not begun until May, 1882, almost, if not quite, ten years from the time the railroad company first entered on plaintiff's land and began its work.

The substantial portion of plaintiff's own testimony was as follows: "I bought the land in 1869; I could have sold it in 1872 for thirty dollars per acre. I was willing to give the right of way to the railroad company if they would go along the public highway on the east side of my farm. I don't recollect of any service of notice of the appointment of commissioners to assess damages by the building of this road through my farm. I consulted an attorney, about the time of the construction of the road, about my claim for damages; but I accepted a position as section foreman on the line, with the understanding that I was to have a permanent position, and drop the question of damages, but there was no contract to that effect. I held the position only about three or four months and never received any pay for my work. The road was sold on my judgment for wages, and I bought the part running through my farm, and also a handcar, and run the road myself while there were no trains, and until the Qualeys commenced operating it. I was waiting for the road to get out of the hands of the receiver. I have worked some for the road since it has belonged to the defendant. I have recently built a new barn on my farm. I think the strip of ground taken by the railroad company for right of way contained about seven acres. In waiting for the road to get out of the hands of the receiver, I acted under the...