Dietrich v. Murdock

Decision Date31 March 1868
Citation42 Mo. 279
PartiesMAX DIETRICH, Defendant in Error, v. JOHN J. MURDOCK, CHARLES K. DICKSON, and NATHAN KOWNS, Plaintiffs in Error.
CourtMissouri Supreme Court
Error to St. Louis Circuit Court

This was an action for the claim and delivery of a lot of railroad iron which had been laid down by the Callaway Mining and Manufacturing Company on land in Callaway county, belonging to Kowns, plaintiff in error. The iron was solidly spiked to sleepers, securely fastened to the land. The Callaway Mining and Manufacturing Company was a corporation created by act of the General Assembly of the State of Missouri, passed February 16, 1847 (Sess. Acts 1846-7, pp. 151-3), with power to acquire right of way and construct a railroad from Cote Sans Dessein, on the Missouri river, to its coal mines in Callaway county.

The company constructed its road and opened it, and, becoming indebted, made its two deeds of trust to Westlake & Filley, trustees, to secure creditors therein named; one dated November 3, 1857, the other November 17, 1857, conveying its road-bed, cars, engines, rails, iron, etc., etc.

The trustees afterward advertised and sold the property, defendant in error being the purchaser of the rails, iron, etc., in controversy. Soon thereafter Kowns removed the iron rails sued for, and shipped them to St. Louis, to Murdock & Dickson, who received them and held them for him at the time they were replevied.

At the trial, which took place at the February term, 1865, the charter of the Callaway Mining and Manufacturing Company was read by defendant in error; also a paper purporting to be the proceedings of a jury summoned to inquire into and assess the damages that might accrue by reason of the building of the railroad and depots contemplated, etc., which need not be set out here.

To the giving of this paper in evidence, the plaintiffs in error objected, for the following reasons:

1. It did not appear that any attempt had been made, previous to impaneling the jury, to agree with the owners of the land over which the track was to pass for compensation for the land taken for said track, and plaintiff (defendant in error) did not declare that he would or offer to give any evidence touching such attempt to make such agreement with said landowners.

2. The report of the jury did not ascertain the land taken from any landowner by metes and bounds, or otherwise.

3. It did not appear from said report what land was taken, or to whom the same belonged, or who was interested in the same.

4. No notice was given to any landholder of the proceedings of the said jury.

5. It appears from the report that the jury only viewed a part of the land condemned.

6. It does not appear from the report that the jury viewed the land of Kowns (plaintiff in error), or took any evidence respecting the manner in which the making of said railroad would affect the same.

7. The jury did not ascertain by metes and bounds, or otherwise, what part of defendant's (plaintiff in error) land was taken by said railroad, nor its value.

8. It nowhere appears by said report that the company applied for any part of defendant's (plaintiff in error) land, nor whether the jury condemned the part so applied for, or a different part.

9. The jury did not certify the amount of damages which the defendant (plaintiff in error) sustained by reason of the running of the railroad through or over the land, nor did it find the same.

All which objections the court overruled and admitted the paper. The court afterward, sitting as a jury, found a verdict for defendant in error. Other facts necessary to an understanding of the case appear in the opinion of the court.

T. T. Gantt, for plaintiffs in error.

I. It appears from the charter of the Callaway Mining and Manufacturing Company that it was no public corporation existing or created for the accommodation of the community, but only a private affair for the benefit of a few persons, and not in any way subserving the public interest. Therefore it was not a corporation in whose aid the right of eminent domain can be exercised or delegated. (2 Kent's Com. 340; Beckman v. Saratoga & Schenectady R.R. Co., 3 Paige, 73; Varick v. Smith, 3 Paige, 159; Smith's Com. on Stat. and Const. Law, § 335.)

II. The act does not provide any judicial proceedings, or any proceedings which can be judicially the subject of review, for divesting the title of the owner of the land needed for a railroad track, under the exercise of the right of eminent domain. (North Missouri R.R. Co. v. Lackland, 25 Mo. 526-8; Backus et al. v. Lebanon et al., 11 N. H. 19-26.)

III. The proceedings to divest the title of the landholder and appropriate his property to the use of the corporation were not conformed to the provisions of the charter.

IV. The proceedings of the jury were not of such a nature that any review of them, or any examination of them by certiorari or otherwise, was practicable, and no notice whatever of the pendency of the proceedings appears to have been given to any landholder, either actually or constructively. The want of such notice is fatal. (City of Boonville v. Ormrod, 26 Mo. 193.)

Sharp & Broadhead, for defendant in error.

I. The Callaway Mining and Manufacturing Company, by the act of the Legislature of this State, had the right to procure the condemnation of the right of way, construct its road, place its engine, cars, iron rails, switches, and other appurtenances, on the road and operate them. (Sess. Acts 1847, pp. 151-3.)

II. The sheriff and jury had a survey by metes and bounds. They investigated the question of damages--advantages and disadvantages considered--as the law required. The sheriff and jury made the condemnation according to the provisions of the charter, and made a full finding and certificate, which was filed and recorded in the proper office, to which no objection was taken; and after the notice imparted by the filing and recording of the public acts of the sheriff and jury, they were acquiesced in and assented to, and never questioned by any one.

III. Plaintiffs in error cannot now, in this collateral proceeding, call in question the validity of the condemnation or of the proceedings to effect it. (Redf. on Rail. 129...

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