Covington S. R. T. Ry. Co. v. Piel

• Decision Date: 24 May 1888
• Citation: 8 S.W. 449,87 Ky. 267
• Parties: COVINGTON S. R. T. RY. CO. v. PIEL.
• Court: Kentucky Court of Appeals

8 S.W. 449

87 Ky. 267

COVINGTON S. R. T. RY. CO. v. PIEL.

Court of Appeals of Kentucky.

May 24, 1888

Appeal from circuit court, Kenton county.

Proceedings instituted by the Covington Short-Route Transfer Railway Company against Christian Piel to condemn certain property for a right of way. From the verdict of the jury assessing the damages, plaintiff appealed.

Hallam & Myers, for appellant.

William Goebel, for appellee.

PRYOR C.J.

This proceeding was had on the application of the appellant, the Covington Short-Route Transfer Railway Company, asking for the appointment of commissioners to assess the damages resulting from the condemnation of appellee's house and lot in the city of Covington for railway purposes. The commissioners appointed proceeded to value the property under the act approved April 11, 1882, and assessed the damages at $7,750, and, each party excepting to their award, a jury was impaneled in the county court, and a verdict rendered in favor of the appellee for $8,000. The case was then carried by an appeal to the circuit court, and a verdict rendered for $8,250, and is now in this court on an appeal from the circuit court. The appellant, the railway company, declining to pay or tender the amount of the judgment because it regarded the sum allowed as excessive, executed a bond, with security, to the appellee, in accordance with the seventh section of the act of April 11, 1882, for double the amount of the damages assessed, conditioned to perform the judgment of the circuit court, or that of any court to which the case might thereafter be appealed, and on motion was awarded a writ of possession. The seventh section of the act is as follows: "Upon the confirmation of the report of the commissioners by the county court, or the assessment of damages by said court as herein provided, and the payment or tender to the owners of the amount due as shown by the report of the commissioners when confirmed, or as shown by the judgment of the county court when the damages are assessed by said court, and all costs adjudged to the owner, the railroad company shall be entitled to take possession of said land or material, and to use and control the same for the purpose for which it was condemned, as fully as if the title had been conveyed to it. But, when an appeal shall be taken from the judgment of the county court by the railroad company, it shall not be entitled to take possession of the land or material condemned unless it shall execute to the owner a bond, with surety, to be approved by the county court, in double the amount of the damages assessed, conditioned to perform the judgment of said court, and of any court to which the case may thereafter be appealed, which bond shall be filed with the papers in the case." Gen. St. 1887, c 18. When the case reached this court, the appellee prayed a cross-appeal, and although a bond had been executed by the railway company, as provided by the seventh section of the act of 1882, was permitted by this court to execute a supersedeas bond, having the effect to stay the writ of possession until the case was disposed of on the appeal.

The right of the appellee to a supersedeas on his cross-appeal is one of the questions raised and to be disposed of on the final hearing. It is insisted by the appellee that so much of the seventh section of the act of April 11, 1882, as permits the railway company to take possession of his property, and apply it to the use of the company, upon the execution of a bond of indemnity only, is in violation of section 14, art. 13, of the constitution providing that "no man's property shall be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him." While the statute does not, in express terms, deny to the owner the right to supersede the judgment in a case like this, it provides that the corporation, when taking the appeal, may take possession of the property upon executing a bond to the owner in double the amount of the damages assessed, excluding necessarily his right to prevent the public use by superseding the judgment, and thereby delay the progress of the work until the end of the litigation. This seventh section gives the right of entry upon the payment or tender of the money to the owner when the company proposes to abide by the judgment, and to afford the company a remedy by an appeal when it may deem the award of damages excessive. It further provides the execution of a bond, with surety, that the owner is compelled to accept if approved by the court, with the right to the company, after its execution, to enter and apply the property to its use. This latter provision of that section, the appellee maintains, is unconstitutional; and, if so, there is no reason why the supersedeas should have been withheld by this court. It is essential, in taking private property for public use that compensation should first be made. It is, says Mr. Mills, "in the nature of a compulsory purchase of the property of a citizen for the purpose of applying it to a public use;" and whether the corporation desiring that use can have the property valued, and then take it from the possession of the owner by executing a bond that may have the effect to reduce the value, and at the same time compelling the owner to risk the solvency of the parties to the obligation, is the question presented here. In considering this question no reported case is to be found in this state where a private corporation has appropriated the property of the citizen to its use upon the execution of a bond containing a mere promise to pay the damages sustained, at the end of a litigation by which the value of the property is to be determined. This court has held in more than one case, where property was condemned for the benefit of a municipality, or for county purposes, that, if the owner was made secure by the execution of a bond with surety, it was such a compensation as was contemplated by the constitution. In the case of Gashweler's Heirs v. McIlvoy, 1 A. K. Marsh. 84, the damages were secured by a direction to pay the sum...