Hull v. Chi., B. & Q. R. Co.

• Citation: 21 Neb. 371,32 N.W. 162
• Parties: HULL v. CHICAGO, B. & Q. R. CO. AND OTHERS.
• Decision Date: 09 March 1887
• Court: Supreme Court of Nebraska

21 Neb. 371

32 N.W. 162

HULL

v.CHICAGO, B. & Q. R. CO. AND OTHERS.

Supreme Court of Nebraska.

March 9, 1887.

Syllabus by the Court.

The remedy given by statute to land-owners for injuries sustained by taking land for railways is exclusive of all other remedies. But this rule does not preclude the land-owner from bringing ejectment for the possession of real estate illegally occupied by a railroad. Where a company, without consent of the owner, takes and occupies real estate as a part of its right of way, without pursuing the statutory method of appraisement and condemnation, and thus making its possession rightful, it is, as all others under like circumstances would be, a trespasser, and cannot justify its possession. In such cases the usual common-law remedies are available to the owner.

Where proceedings to condemn real estate, instituted and carried through by a railroad company, are so defective as to be void for want of jurisdiction, such proceedings will afford no defense to an action of ejectment instituted by the land-owner to recover the possession of the land taken and occupied by the railroad for right of way purposes.

The constitutional guaranty that “the property of no person shall be taken or damaged for public use without just compensation therefor,” makes it incumbent upon a railroad company or other governmental agency exercising the right of eminent domain, to render such compensation before the right to appropriate the property will exist; and, in case of failure to agree upon the damages accruing from the taking, the railroad company must proceed to condemn under the forms of law, (unless such proceedings are instituted by the land-owner;) and in case of failure so to do, the possession of the real estate by the company for railroad or other purposes will be illegal, and ejectment may be maintained by the land-owner.

Where a railroad company condemns private property to public use, and deposits the condemnation money with the county judge of the proper county, in accordance with law, and takes possession of the condemned land, the subsequent withdrawal of the deposit from the county judge, for the reason that the proceedings were illegal, will be an abandonment of all rights to claim the possession of the real estate under such proceedings. COBB, J., dissents.

Where, in a proceeding to condemn the right of way through or over the real estate of a non-resident, notice is given by publication in a newspaper that, if the owner fails to apply for an assessment of damages by a date named, then the railroad company will apply therefor, and that the appraisement will be made at the premises on a day and hour named in the notice, such publication will give no authority for the assessment of damages nine months after the time fixed therefor in the notice.

Where it is sought to exercise the right of eminent domain in the condemnation of the real estate of a non-resident, and notice of such intention is given by publication, the publication must be made in one newspaper four successive weeks. The publication of such notice in a daily newspaper a part of the time, and the remainder of the time in a weekly, (the paper being sent to different sets of subscribers in different localities,) will not confer jurisdiction, and all proceedings thereunder will be void.

A party, in order to acquire title to land by the statute of limitations, must not only have a possession adverse to the true owner, but must occupy the same as the owner during the entire statutory period.

In action in ejectment against a railroad company for real estate occupied by it as a part of its right of way, the company claimed title to the property by reason of the statute of limitations. Within the 10 years last preceding the commencement of the action the railroad company sought to condemn the property to its use under the provisions of the statute for the condemnation of real estate. These proceedings were instituted against the real owner by name, and the condemnation money deposited with the county judge for him. It was held that these proceedings amounted to a recognition of the ownership of the person against whom they were instituted, and would arrest the running of the statute, even though the proceedings were void for want of jurisdiction, by reason of a failure to comply with the law in the publication of the notice.

Error from Lancaster county.

Lamb, Ricketts & Wilson, for plaintiff.

Marquett & Deweese and O. P. Mason, for defendant.

REESE, J.

This was an action in ejectment, instituted in the district court of Lancaster county, for the possession of lots 14, 15, 16, and 17 of block No. 70 of the city of Lincoln. Upon a trial in that court, judgment was rendered in favor of plaintiff for the possession of lots 14 and 17, and in favor of defendant for lots 15 and 16. Plaintiff in error being dissatisfied with the finding of the trial court as to the latter described lots, seeks a review thereon by proceedings in error. The defendant has filed a cross-petition in error, and seeks a reversal of the judgment in so far as its right to the possession of the former is affected.

It is insisted by defendant in error that ejectment is not the proper remedy; that the remedy given by the statute to land-owners for injuries sustained by taking land for railways is exclusive of all other remedies, and not cumulative. This rule seems to be well settled by adjudications. Mills, Em. Dom. § 87, and cases there cited. See, also, Railroad Co. v. Fink, 18 Neb. 88, 24 N. W. Rep. 439. But if the theory of plaintiff in error is the correct one, that all the proceedings to condemn the real estate in question were void, and defendant acquired no right thereunder, then it seems to us that the rule as to the statutory remedy being exclusive would not be applicable here; for the action is not one for injuries sustained by taking the land, but for the land itself. Stated differently, the contention on the part of plaintiff in error is that the whole proceeding to condemn the property is a nullity, and that defendant in error is a trespasser from the beginning. If this is true, the action in ejectment is the proper remedy. In Railroad Co. v. Fink, supra, the present chief justice, (MAXWELL,) in writing the opinion of the court, says: “The law does not require the citizen to institute proceedings to protect his rights, but merely permits him to do so. Constitutional guaranties of the rights of property would be of little value if the corporation could seize the property of an individual, and say to the owner: ‘If you want compensation for this property, institute proceedings to condemn it, and, after we think the proper amount is awarded, we will pay you.’ ” While the manner of ascertaining the damages is exclusive, yet if a railroad company takes and occupies real estate without taking the necessary legal steps to condemn the land, and thus making its possession rightful, it is, as all others under like circumstances, a trespasser, and cannot justify its possession. Therefore the usual common-law remedies are available to the owner. Railroad Co. v. Menk, 4 Neb. 24; Blaisdell v. Winthrop, 118 Mass. 138;Ewing v. St. Louis, 5 Wall. 413. The owner may enjoin the entry, ( Railroad Co. v. Menk, supra; Ray v. Railroad Co., 4 Neb. 439; Cameron v. Supervisors of Washington Co., 47 Miss. 264;Paris v. Mason, 37 Tex. 447;Floyd v. Turner, 23 Tex. 292;Pierpoint v. Harrisville, 9 W. Va. 215;) or he may bring ejectment, ( Railroad Co. v. Smith, 78 Ill. 96;Smith v. Railroad Co., 67 Ill. 191;Railroad Co. v. President of Knox College, 34 Ill. 195.) Where ejectment is brought, the pendency of proceedings to condemn will be no defense to the action, (Coburn v. Lumber Co., 46 Cal. 31;) and for strong reasons it would follow that if the proceeding to condemn had been completed, and was so defective as to be void for want of jurisdiction, or for other cause, the same rule would apply, and such void proceeding would furnish no defense.

This question being presented by the record, and being, as we think, of vital importance to the case, we will consider it as next in order.

The answer of defendant in error consists of four separate defenses, which may be stated as follows: First. A general denial. Second. That on the twelfth day of December, 1879, and long prior thereto, the Burlington & Missouri River Railroad Company in Nebraska was a corporation under the laws of the state, and had built and operated a railroad in said name from Plattsmouth, through the counties of Cass, Saunders, and Lancaster, through the city of Lincoln, and thence westward to Kearney; that at said date the business of said company required said lots 14, 15, 16, and 17, in block 70, for the use and operation of its railroad; that said company, in pursuance of the statutes, made application, on the twelfth day of December, 1879, by filing an application and petition for the condemnation of said lots to the use of said company. A transcript of all the proceedings of condemnation, showing the deposit of the condemnation money with the county judge, is attached to the answer. It is alleged that the money, amounting to $1,000, being deposited, the said railroad company being in possession of the property, the same was occupied by it, and its successor, the Chicago, Burlington & Quincy Railroad Company, to the present time; that no appeal or writ of error to reverse or modify the proceedings had ever been had, and they were wholly unreversed, unmodified, and in full force, and by which defendant had the right to use and occupy the lots, and could not be ejected therefrom. Third. That plaintiff's cause of action did not accrue within 10 years next immediately preceding the commencement of this action, and is barred by the statute of limitations. Fourth. That in July, 1874, the Nebraska Railway Company, a corporation under the laws of Nebraska, and operating a road from Nebraska City, through...