Dunlap v. Toledo, A.A. & G.T.R. Co.
| Decision Date | 25 April 1883 |
| Parties | DUNLAP v. TOLEDO & A.A.R. CO. |
| Court | Michigan Supreme Court |
An action of trespass for entering upon land, tearing down fences, cutting down fruit trees, and doing other injury to the reversion, will not lie by the owner thereof against a railroad company that committed the alleged trespass after the institution of proceedings to condemn such land for its right of way, that were by the supreme court declared void for want of proper service of the notice required by law when such proceedings were, as provided by the statute immediately renewed and their validity finally sustained by the supreme court, and in such subsequent proceedings an award of damages in which the injuries complained of were taken into account was made to the owner of such land for the condemnation and appropriation thereof by such railroad.
Error to Oakland.
E.J. Bissell and F.A. Baker, for plaintiff.
Baldwin & Draper, for defendants and appellants.
Trespass on the case. The declaration contains a single count, and a copy is given in the margin. [*] The defense was that the acts constituting the supposed grievance were done by the railroad company and its servants in the condemnation and appropriation of the land for its corporate purposes. On the trial of the case the following facts were developed: The railroad company instituted proceedings in November, 1880, to condemn the premises in question for railroad purposes under the general railroad law of the state. Commissioners were appointed by the circuit court, who proceeded to view the land and take testimony, and thereupon made their report to the court, awarding the plaintiff $300 damages. The report was confirmed by the court and the company deposited the sum awarded in a bank at Pontiac subject to the plaintiff's order, and notified him thereof. The company also paid the costs of the proceedings and immediately took possession of the land, cut down trees removed fences, graded their road-bed, and laid their track. Plaintiff removed the proceedings into the supreme court by certiorari, and they were there quashed for the reason that the service of notice whereby they were begun was unwarranted and void. See 46 Mich. 190; [S.C. 9 N.W. 249.] The judgment was entered June 15, 1881. The present suit was instituted while the proceedings upon certiorari were pending in the supreme court.
When decision was rendered upon the certiorari, the railroad company immediately instituted new proceedings in condemnation, the petition for that purpose being filed July 14, 1881. The petition was filed under section 26 of the general railroad act of 1873, which provides that "at any time after an attempt to acquire title by any railroad company by an appraisal of damages or otherwise, if it should be found that the title thereby attempted to be acquired is defective, the company may proceed anew to acquire or perfect the same in the same manner as if no appraisal had been made; and at any stage of such new proceedings the court may authorize the corporation, if in possession, to continue in possession, and if not in possession to take possession of and use such real estate or other property during the pendency of and until the final conclusion of such new proceedings, and may stay all actions or proceedings against any company, or any officer or workman of such company, on account thereof, on such company paying into court a sufficient sum, or giving security as the court may direct, to pay the compensation therefor when finally ascertained; and in every such cause the party interested in such real estate or other property may conduct the proceedings to a conclusion if the company delays or omits to prosecute the same: provided, any railroad company which have heretofore entered upon, taken, occupied, and used any lands within this state for the purpose of their road, shall have the same right to acquire title to or right of way over said lands so taken by them as if they had proceeded to acquire said title or right of way before having entered upon the same." 1 Laws 1873, p. 519. The proceedings upon this petition went on to a completion, and resulted in an award to the plaintiff of the sum of $350, with interest from the time the railroad company took possession.
The proceedings were confirmed by the circuit court, and the money deposited to the plaintiff's order as the court directed. The plaintiff removed the order of confirmation into this court, where it was affirmed. See 47 Mich. 456; [S.C. 11 N.W. 271.] During all the time from the first attempted appropriation the railroad company has been and still is in possession of the land. After the second proceedings in condemnation had been affirmed in this court the plaintiff brought the present suit to trial, and recovered a larger sum as damages than the amount which had been awarded to him in the condemnation proceedings. The theory of the recovery, and upon which the circuit judge submitted the case to the jury, was that the plaintiff, by the original wrong in taking possession of his land under the pretense of...
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