Evans v. Missouri

• Decision Date: 30 April 1877
• Citation: 64 Mo. 453
• Parties: JOHN W. EVANS, Respondent, v. THE MISSOURI, IOWA AND NEBRASKA RAILWAY Co., Appellant.
• Court: Missouri Supreme Court

64 Mo. 453

JOHN W. EVANS, Respondent,

v.THE MISSOURI, IOWA AND NEBRASKA RAILWAY Co., Appellant.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Schuyler County Circuit Court.

F. B. Hughes & A. J. Baker, for Appellant, cited: Provolt vs. C., R. I. & P. R. R., 57 Mo. 256; McAulay vs. W. & R. R. 33 Vt. 311; State vs. Rodman, 43 Mo. 260; Torrey vs. Camden & Atlantic R. R. Co., 3 C. E. Greene 293; Greenlaugh vs. Manchester & Birmingham R'y Co., 3 Myl. etc, 785; Hentz vs. Long Island & C. R. R., 13 Barb. 648; Erie etc. vs. Delaware etc., 6 C. E. Greene, 283; Goodwin vs. Cincinnati etc., 18 Ohio St. 168; High Inj. §§ 387, 397; Commissioners of Highways vs. Dunham, 43 Ills. 86; Harness vs. Chesapeake & Ohio Canal Co. 1 Md., 248; Ross vs. Elizabethtown & Somerville R. R. Co., 1 Green. 422; Browning vs. Camden & Woodbury R. R. 3 Green. 4; and commented on Richards vs. Des Moines Valley R. R., 18 Iowa 259; Stewart vs. Raymond R. R., 5 S. & M. 568; Bowers vs. Bears, 12 Wis. 213.

Higbee, McGoldrick, & Caywood, for Respondent, cited: Walther vs. Warner, 25 Mo. 277; 1 Redf. Railw. 238, § 3 and notes 4, 5; Id. 238, § 6, and note 8; High Inj. §§ 392, 393 and note 1; §§ 396, 399-401; Williams vs. N. Y. Cent. R. R., 16 N. Y. 111 (referred to in Till. & Sherm. N. Y. Pr. Vol. 1, 695,) Henry vs. Dubuque & P. R. R. 10 Iowa, 540; Horton vs. Hoyt, 11 Iowa, 496; High Inj. note 1, § 392; and commented on Anderson vs. City of St. Louis. 47 Mo. 479; Provolt vs. C., R. I. & P. R. R., 57 Mo. 256.

SHERWOOD, C. J., delivered the opinion of the court.

On the hearing of this cause, the court below made an order whereby it was adjudged and decreed that defendant pay to plaintiff, on or before the 11th day of January, 1875, the amount of damages adjudged to him at the April term, 1873, on account of certain condemnation proceedings, instituted by defendant, for a right of way over plaintiff's land. And it was also adjudged that defendant pay interest on the sum thus assessed, together with costs, as well of that proceeding as of the present, and that in the event that such payment was not made at the time designated, that a writ of injunction issue restraining defendant from operating its road and train of cars thereon, over plaintiff's premises, until such sum be paid, etc., etc.

This action of the lower court has caused this appeal by defendant. It is assumed by counsel that plaintiff must be presumed to have waived or postponed his right to insist upon immediate payment for his land. On what a slender foundation this assumption rests will be readily seen by reference to the defendant's charter and the agreed facts of this case.

That charter (Acts 1857, § 10, and Acts 1851, 483, §§ 7, 9, 10,) gave “full power to survey, mark, locate and construct a railroad,” and “provides, in order that the progress of the work may not be impeded, that after said viewers have filed their report and plat in the office as aforesaid, the company, after having made a tender of the amount of damages to the person or persons, or made a deposit of the same with the clerk of the county court in which the case may be pending, shall be authorized to proceed in the construction of the work as fully as though no disagreement had arisen.”

The parties failing to agree, commissioners were, in July, 1872, at the instance of the defendant, appointed, who assessed the plaintiff's damages at $1.00, which sum, defendant, having already located its road, deposited with the clerk, and proceeded to construct its road. The plaintiff filed exceptions to the report of the viewers, and at the January term, 1873, the court set aside the report and appointed other commissioners, who, at the April term, 1873, assessed plaintiff's damages at $48, and their report was confirmed and judgment rendered accordingly. Meanwhile, however, the defendant's road had been completed and in operation twenty miles west from plaintiff's land, prior to the setting aside of the report of the first commissioners, and the defendant's insolvency is admitted, an execution having been issued and returned nulla bona. It is manifest that there was no acquiescence by the plaintiff in the condemnation proceedings, unless that can be thus termed, which consists only in aclive resistance. What more than he has done could be required at his hands? For it seems he could not have enjoined the company from entering on his land for the purpose of doing that which the law gave express authority, viz: marking, surveying and locating its road. And the same remarks are equally applicable to the subsequent proceedings to condemn the right of way and the construction of the road. And this because the company was only exercising its statutory powers; powers explicitly granted, as the act in terms shows, in order to prevent the work from being impeded. (1 Redf. on Rly., § 97, 371; Walther vs. Warner, 25 Mo. 277.) And even if it were doubtful as to whether equity would interpose by injunction, notwithstanding the grant to the company of legislative authority, still this doubt should certainly not work the plaintiff an injury, nor should laches or acquiescence be imputed to him because he did not in addition to, and in conjunction with, his statutory methods of resistance, appeal also to chancery for aid, when it was at least doubtful whether any assistance from that quarter could, under the circumstances, be secured. It will not be directly claimed, though this is frequently done in an indirect and roundabout manner, that the rules of either law or native justice should change because a corporation happens to be plaintiff or defendant. If, in the present instance, the plaintiff had, of his own head, sold the strip of ground in controversy to an individual defendant, no one would doubt that unless waived by some affirmative or unambiguous act, the vendor's lien, still existing in all its original preference and priority, would be capable of enforcement, notwithstanding the insolvency of the purchaser. Would not this doctrine, a fortiori, apply where the property is seized in invitum--seized by a corporation in derogation of common law and common right? If the vendor's lien has its origin in the idea that it would be unconscionable to allow the vendee to retain property voluntarily sold to him, and not pay its price, would not such retention be equally against good conscience, where the sale is compulsory, and the property transferred by mere operation of law? It would seem clear, beyond question, that the usual equity of a vendor in this regard would be so greatly strengthened by that imperious constitutional mandate, which prohibits property from being taken without just compensation, as to require, if anything, more cogent evidences of waiver than under ordinary circumstances; for surely a constitutional right should not be lightly inferred away, nor should courts be ingenious in drawing remote and strained inferences in support of an assumed waiver, where a corporation is to be benefited thereby; inferences which they would speedily scout, were natural persons, under similar circumstances, invoking remedial justice.

If the law favors uniformity, if, indeed, it is no respecter of persons, there can be no difference in point of abstract principle, nor yet in its application, whether applied to the adjustment of rights between a natural person and a corporation, or where a like adjustment is sought between individuals alone. These remarks are induced by the position of defendant's counsel, before referred to, and by the authorities cited in support of that position.

In the case of Provolt vs. C., R. I. & P. R. R. Co. (57 Mo. 256), a case which goes far beyond any other to be found in the books, it was held that ejectment could not be maintained against a railroad company, although failing to pay the owner for his land, and this upon the ground of his having waived his right to insist on immediate payment. But though the remedy by ejectment was denied, because of the supposed waiver, it was still held that the plaintiff was entitled to equitable relief, ex. gr. by having a receiver for the road appointed. That case is claimed as the counterpart of this, and so it would seem to be, and it is insisted that a waiver which should preclude a recovery in ejectment, should likewise preclude an injunction. And there would appear to be no little force in the observation, because either method of redress, if enforced, would effectually interfere with the interests of “ the public,” by preventing the operation of the road, which appears to be regarded by defendant's counsel as a very strong point.

In Walker vs. C., R. I. & P. R. R. Co., (same volume), it was held that mere silence and inaction for the time being, on the part of the land owner, while a railroad was being built over his property, would not be construed into acquiescence nor estop him from his action of ejectment. And in Walther vs. Warner (25 Mo. 277), cited with approval in the Provolt case, it is said in conclusion, that “all the cases in all the books seem to assume that an individual cannot be absolutely deprived of his property without the actual payment of the assessed price, even though a proper provision is made in the act authorizing the taking of it; and perhaps it would be better to hold that, even in cases where proper provision is made for the payment of the price, so that the property is allowed to pass, it passes subject to the condition that the price is subsequently paid, so that if for any cause it be not paid, the party may re-possess himself of it on account of the condition broken.”

It is altogether unnecessary to say whether the facts in the Provolt case were of a character to establish the inference of a waiver. It is sufficient to observe that, applying the rule before announced, the same rule which should govern between ordinary vendor and vendee, we have after careful consideration of the facts before us, been unable to discover anything on...