Evans v. Haefner

• Decision Date: 31 October 1859
• Citation: 29 Mo. 141
• Parties: EVANS, Appellant, v. HAEFNER et al., Respondents.
• Court: Missouri Supreme Court

29 Mo. 141

EVANS, Appellant,

v.HAEFNER et al., Respondents.

Supreme Court of Missouri.

October Term, 1859.

1. Where land is condemned in behalf of a railroad company, the validity of such condemnation cannot be called in question in a collateral proceeding.

2. In proceedings instituted by a railroad company to obtain the condemnation of private property, the court, on confirming the report of the commissioners, ordered the plaintiff to deposit the compensation assessed forthwith with the clerk of the court to the credit and on account of the defendant. The clerk tendered the money to the attorney of the defendant and he refused to receive it. Held, that the company was justified in entering upon and taking possession of the land condemned.

3. Where land is condemned in behalf of a railroad company, the decree of condemnation, it seems, vests in the company the title to the earth and minerals found above the grade of the road, and whose excavation is necessary for the construction of the road; minerals lying below the level of the road, and whose excavation is not necessary in the construction of the road, belong to the owner of the land condemned.

Appeal from Washington Circuit Court.

This was an action to recover possession of certain lands and damages for entering the same and cutting down and destroying timber, and for digging up and carrying away rock, stone, mineral and gravel, &c. The defendants based their defence upon a condemnation of the land in controversy in certain proceedings instituted in the Washington circuit court in the name and in behalf of the St. Louis and Iron Mountain Railroad Company against the plaintiff and his wife. In these proceedings the land sued for was condemned, and the court, in its order confirming the report of the commissioners, made the following order: “It is further ordered that the plaintiff deposit in the hands of the clerk of this court, William A. Matthews, forthwith, to the credit and on the account of the defendants, the said sum of nine hundred and twenty-five dollars, to be paid over to the defendants as their compensation; and upon the plaintiff depositing said sum as aforesaid, it shall be entitled to enter upon, take possession of and use the said land, for the purposes aforesaid, during the continuance of its corporate existence.” These proceedings were instituted in April, 1858.

The defendants also adduced in evidence the following instrument: “January 15, 1858. Whereas George B. Cole, Israel McCready, John Deane, J. H. McIlvaine, Andrew Casey, Samuel Singer, J. H. Morse and Thomas C. Johnson, a committee appointed by the citizens of Potosi, in the county of Washington, acting for themselves and such others as shall co-operate with them, parties of the first part, have proposed to the St. Louis and Iron Mountain Railroad Company, party of the second part, to establish a branch road from the main line of the St. Louis and Iron Mountain Railroad to Potosi, by the nearest and most practicable route; and whereas the said railroad company is willing to establish and locate said branch upon the considerations hereinafter named: Now, therefore, these presents witness: 1. That the said parties of the first part, for themselves, said citizens, hereby agree to and with the said railroad company to do the graduation, masonry, bridging, ballasting, clearing and grubbing, and all other work necessary to prepare said branch road for the laying of the track thereon. 2. The said parties of the first part further agree at their own expense to procure the right of way, and the necessary depot grounds, and to cause the same to be conveyed to said company. 3. The said branch road shall be located upon the shortest, most practicable and cheapest route to be designated by the engineer of the St. Louis and Iron Mountain Railroad Company acting in concert with an engineer appointed by the said parties of the first part. 4. The cost of making the preliminary surveys on said route shall be paid by said railroad company except the wages of the engineer appointed by the parties of the first part. 5. When the graduation, masonry, &c., and all other work necessary to prepare said road-track for the laying of the rails shall be completed, delivered and accepted by said company, then the said party of the second part binds itself to furnish the iron rails, ties, spikes, &c., and to proceed without delay to lay down and complete said track, to erect the necessary buildings, provide rolling stock, and proceed to operate said road. 6. It is further agreed that said railroad company shall have the entire control and management of said road, and the regulation of the rates for passengers and freight thereon. 7. The said branch when completed shall, together with the appurtenances thereto, become the absolute property of the St. Louis and Iron Mountain Railroad Company. 8. The grade of such branch road shall not exceed seventy feet per mile. 9. When said road-bed, masonry, &c., are completed, delivered and accepted by said railroad company, the cost thereof shall be estimated by the engineers of both parties, not to exceed the cost of similar work on the main line; and, in case they can not agree, a third engineer shall be selected by them as umpire, and the decision of the majority shall be final. For the amount so fixed the said railroad company shall issue its stock to such persons and in such amounts as shall be directed by a committee of the citizens of Potosi. 10. The graduation, masonry, &c., on said branch road shall be commenced by the citizens of Potosi within three months and completed within twelve months from the date hereof. 11. If, at any time within which the work is to be commenced as above, it shall be found impossible to raise the necessary subscription among said citizens to complete said work, then the parties of the first part shall have the right to terminate this contract by notice in writing to said railroad company within said period. In testimony whereof,” &c.

The St. Louis and Iron Mountain Railroad Company gave to Wm. Carter the following authority to procure the condemnation of the right of way for the Potosi branch railroad: “The undersigned, president of the St. Louis and Iron Mountain Railroad Company, hereby authorizes William Carter, Esq., the attorney at law employed by divers citizens of the town of Potosi, to use the name of said company in all necessary legal proceedings to procure the condemnation of the right of way for the Potosi branch of the S. L. & I. M. R. R. It is expressly understood, however, that the said company shall in no event be held responsible for the professional fees of the said attorney, nor for any costs or expenses attending the procurement of said right of way, but the same are to be wholly borne by the said citizens of Potosi. [Signed] Madison Miller, president. St. Louis, March 29, 1858.”

The trespasses complained of were committed by the defendants in entering upon the land of plaintiff under the authority of the above contract for the purpose of constructing said branch railroad track. It appeared that some gravel was dug up for embankment purposes outside the line of the road as condemned.

The court, at its own instance, gave the following instructions to the jury: “The judgment of the court rendered at the May term, 1858, in the proceedings of the St. Louis and Iron Mountain Railroad Company to condemn the roadway of the branch road through the land and town lots of the plaintiff, and the deposit of the amount of money required by said judgment with the clerk, was a complete investiture of the company of the title to the land condemned from the date of said deposit, and is a full justification to the company, her agents and contractors, to enter on the land thus condemned, and construct their road, doing no damage to the adjoining land of the plaintiff; and such judgment precludes all inquiry by the jury into the value of the land taken or the damages done to the adjoining land in consequence of the location of said road, the same having been adjudicated and settled by the judgment aforesaid. The damages sustained by the plaintiff for taking and using the gravel on adjoining land, and any injury done to the adjoining lands, by throwing down and keeping open the fences, if proven to have been done by the contractors or their hands, the defendants are liable therefor; and the jury will find for the plaintiff such amount therefor as, under all the circumstances, they may think right. The contract of the defendants with the St. Louis and Iron Mountain Railroad Company read in evidence is a full authority from the company to them to enter upon the said roadway and construct their said branch road. Although the defendants were entitled to pull down the fences along the line of said road for the purpose of constructing their road, yet they could not by law do so in such manner as to expose his enclosed lands adjoining, but must keep up the fences so as to prevent such exposure, or they will be liable for any damages resulting from such exposure. The title vested in the company by the judgment aforesaid conferred on the company the right to all mineral, &c., found within the line of said roadway.”

The plaintiff asked the court to instruct the jury as follows: “1. The St. Louis and Iron...