Florida Southern R. Co. v. Hill

• Decision Date: 18 January 1898
• Citation: 23 So. 566,40 Fla. 1
• Parties: FLORIDA SOUTHERN R. CO. v. HILL et al.
• Court: Florida Supreme Court

23 So. 566

40 Fla. 1

FLORIDA SOUTHERN R. CO. v. HILL et al.

Florida Supreme Court

January 18, 1898

Appeal from circuit court, Polk county; Barron Phillips, Judge.

Suit by S. Clinton Hill and another against the Florida Southern Railroad Company for compensation for use of land or an injunction. The former was granted, and defendant appeals. Reversed.

Taylor C.J., dissenting.

Syllabus by the Court

SYLLABUS

1. Where the pleader is in doubt as to whether he is entitled to one kind of relief or another upon the facts alleged in a bill in equity, he may frame the prayer in the alternative so that, if he is not entitled to the one, he may obtain the other. If, in such case, upon the allegations of the bill the complainant is entitled to either kind of relief prayed the defendant cannon demur because he is not entitled to the other; the remedy being to insist at the hearing that complainant be confined to such relief only as he is entitled to under all the circumstances of the case as then presented.

2. Where a railroad company possessing the power of eminent domain enters upon the land of another without his consent, and without condemnation, builds thereon its railroad tracks, and appropriates to its use a right of way over such land, the owner may waive the tortious taking, elect to regard the act of the company as done under the right of eminent domain, and demand and recover just compensation, in which case he assumes to the company the relation of a vendor who sells real estate on a credit; and while he holds the title equity will enforce his claim against the land as it would a vendor's lien. Taylor, C.J., dissenting.

3. Where a landowner waives the tortious taking of his property for the purpose of a right of way by a railroad company possessing the power of eminent domain, and elects to regard the act of the company as done under the right of eminent domain, he may resort to equity in the first instance to establish the amount due him for compensation, and to enforce same by charging the company's interest in the land and the improvements thereon for its payment. Taylor, C.J., dissenting.

4. Where a landowner has acquiesced in the taking of his property for a right of way by a railroad company, so that he is estopped from dispossessing the company, an injunction should not be granted to coerce the payment of compensation due for such land, but a court of equity may declare the amount due for compensation to be a lien upon the land and improvements, and decree foreclosure of such lien and sale of the property to satisfy same.

COUNSEL

R. W. & W. M. Davis, for appellant.

J. W Brady, for appellees. On November 23, 1893, appellees filed their bill of complaint against appellant in the circuit court of Polk county, alleging that appellees, complainants therein, were the owners in fee simple of 40 acres of land therein described as being within the corporate limits of the town of Bartow, in said county; that the land was of great value to complainants for various purposes; that about eight years prior to the filing of the bill the Florida Southern Railway Company, a corporation then doing business in Polk county, unlawfully and wrongfully entered upon said land, which was then owned by, and in possession of, complainants, and did grievous wrongs and trespasses commit by wrongfully building, constructing, and erecting its rights of way and railway tracks upon and across said land; that for a long time thereafter said railway company continued to use, without authority of complainants in any way given, and without complainants' consent or assent thereto, its said rights of way and railway tracks which it had unlawfully and without complainants' permission erected upon said lands; that said railway company had never compensated complainants for taking said land, though it remained in the continuous use thereof for a long time thereafter; that the construction of said right of way and railway tracks had greatly depreciated the market value of said land; that the tracks and rights of way took up a good portion thereof, and cut up and divided the same so as to make it less salable and less profitable for other purposes. Upon information and belief it was alleged that the defendant was a railroad corporation doing business in Polk county, and was the successor of, and distinct from, the Florida Southern Railway Company, which latter company then had no existence; that complainants knew not the time when defendant company became the successor of said railway company, but from general information alleged that it had not been long prior to the filing of the bill, complainants' first knowledge thereof dating from September 4, 1893. It was further alleged that defendant was pretending to be rightfully possessed of complainants' land as used for rights of way and railway tracks unlawfully and wrongfully placed thereon by the Florida Southern Railway Company as aforesaid; that defendant had never paid complainants any compensation for said land, or for the use thereof, in any way, and refused to vacate and surrender same to complainants, and was then in the use thereof without complainants' authority or permission in any way given; that defendant's use of the land was unlawful and wrongful, and a deprivation of complainants' constitutional rights, in that their property was taken by defendant without due process of law, and without compensation therefor; that complainants were entitled to compensation for their land, and the amount thereof was a lien upon same, together with the improvements thereon.

The bill prayed for a decree that the defendant had no right to use complainants' land in manner aforesaid; that the court fix a reasonable time in which defendant, if it saw fit, might take condemnation proceedings for the purpose of condemning complainants' lands for its use, and to pay complainants therefor; that, in default of such proceedings and payment, the defendant be enjoined and restrained from using complainants' said land for its tracks and rights of way, and from interfering with complainants in restoring their lands to the condition in which they were previous to the tracks being built thereon; or, if it was not meet and proper for the court to grant the foregoing prayer, that then the court should, by proper direction, ascertain what amount of compensation the complainants were entitled to for the taking of their said property as aforesaid; that the amount thereof be decreed to be a lien upon the property so taken, together with the improvements placed thereon, and, in default of payment of said amount within a time to be fixed by the court, that the land so taken and the improvements thereon be sold to satisfy said lien decree. The bill also prayed for general relief and subpoena.

The defendant demurred to this bill upon the following grounds (1) That it was vague and insufficient. (2) The bill failed to allege when the Florida Southern Railway Company first occupied the lands or converted same to its own use. (3) That complainants had an adequate remedy at law. (4) That the bill shows such acquiescence by complainants in the alleged occupancy by defendant and its predecessor as that they would not now be entitled to the remedy of injunction. (5) That the bill failed to show what damage, if any, has been done to complainants. (6) That the prayer in the bill was inconsistent with the allegations. This demurrer was overruled February 2, 1894, with leave to the defendant to answer by March rules, 1894. Defendant having failed to file any plea or answer, a decree pro confesso was entered against it at March rules, 1894, and the cause was subsequently referred to a master to take testimony in behalf of complainants, March 29, 1894. On April 11, 1894, the court, upon consideration of the pleadings and the testimony taken by the master, decreed: (1) That the property taken by defendant from complainants was of the value of $1,000; that complainants were entitled to said sum from defendant as compensation for the land so taken by it, and upon which its tracks were then laid and placed, describing same; that defendant pay to complainants said sum within 30 days, and in default thereof, and for noncompliance with the succeeding paragraph of the decree, that the complainants have the relief granted by the third paragraph. (2) That if defendant should, within 60 days from the date of the decree, take the necessary condemnation proceedings to condemn complainants' land upon which the defendant's tracks and rights of way were situated, and pay to complainants the amount of compensation ascertained under such condemnation proceedings promptly, and in accordance with law, and without any unnecessary delay, then the first paragraph of the decree should be suspended, and of no effect. (3) That in case the defendant failed or refused to pay complainants the sum of money as mentioned in paragraph 1 within the time specified, or failed or refused to take necessary condemnation proceedings as mentioned in paragraph 2 within the time specified therein, that then the defendant should be restrained and enjoined from the possession of said land so occupied by it, and the use thereof, for the purpose of running its trains, cars, engines, etc., over the tracks thereon for any purpose whatever, and restrained and enjoined from interfering with the complainants in restoring their land to the condition, as they saw proper, in which it was before the tracks and rights of way were placed on said land by the Florida Southern Railway Company; that the defendant, its agent, servants, and employés of any kind, should be enjoined from entering upon said land for the purpose of disturbing or interfering with the complainants' use of same. (4)...