Jacksonville, T. & K.w. Ry. Co. v. Adams

• Decision Date: 21 December 1891
• Citation: 10 So. 465,28 Fla. 631
• Parties: JACKSONVILLE, T. & K. W. RY. CO. v. ADAMS.
• Court: Florida Supreme Court

10 So. 465

28 Fla. 631

JACKSONVILLE, T. & K. W. RY. CO. v. ADAMS.

Florida Supreme Court

December 21, 1891

Syllabus by the Court

Appeal from circuit court, Volusia county; JOHN D. BROOME, Judge.

Ejectment by Charles S. Adams, administrator of John S. Adams deceased, against the Jacksonville, Tampa & Key West Railway Company. Judgment for plaintiff. Motion for new trial denied and defendant appeals. Affirmed. Motion by defendant to withhold the mandate of possession until condemnation proceedings could be prosecuted. Motion allowed. And, pending a consideration of the subject, plaintiff moved that the mandate for possession be sent down. Motion denied.

COUNSEL

A. W. Cockrell & Son, for plaintiff.

J. R Parrott, T. M. Day, Jr., and Fletcher & Wurts, for defendant.

OPINION

RANEY C.J.

In the main opinion in this cause (27 Fla. ----, 9 South. Rep. 2) a judgment in ejectment in favor of the appellee, who was plaintiff, was affirmed. Having discovered in our investigations that it was the practice in some appellate courts to withhold the mandate of possession until condemnation proceedings could be prosecuted, we suggested that any motion for such withholding must be made within 30 days. A motion of the character indicated was made by appellant and resisted by appellee, and the mandate for possession was withheld for full consideration of the point.

Pending our consideration of the subject the appellee moved that the mandate for possession should be sent down, the grounds of this motion being (1) that sufficient time had elapsed to enable the appellant to institute and consummate the proceedings contemplated in the order of the court withholding the mandate; (2) that proceedings had in fact been instituted and pursued to a final judgment of the circuit court of Volusia county, rendered August 10, 1891, refusing to confirm the condemnation of the lands now occupied by the appellant, and sought to be condemned,--such refusal being on the ground (urged by the appellee) that, since the adoption of the present constitution of this state, there has been no valid, constitutional legislation authorizing such condemnation.

As stated in the main opinion, the original condemnation proceedings were instituted in August, 1885, not by the appellant company, but by the Atlantic Coast, St. Johns & Indian River Railroad Company, of which the appellant company leased the road in December of the same year for the period of 99 years. It is now shown that on the 1st day of April of the present year, and within less than 30 days of the filing of the former opinion,--it having been filed March 4th,--the appellant company filed a petition in the circuit court of Volusia county, signed and sworn to by an attorney of the company, stating that the company exists under the laws of the state; that the railroad of the company is now constructed on and across the lands in question, (describing them,) and that such lands are essential for the use of the corporation, and that the corporation has made its survey and maps thereof, by which its road or line is designated, and that it has located its road according to such survey, and has filed certificate of such location, signed by the engineer of the corporation, in the office of the clerk of the circuit court of Volusia county; that the use of such lands is necessary for the purpose of operating the railroad, and that petitioner has not acquired the right to use the same; that petitioner is in possession of the portion of the land actually occupied by the railroad track; and that the appellee, administrator, etc., is in possession of the balance, and that he and Helen Maria Adams, in their own right, own or claim to own the land. The prayer of the petition is for an order for summoning a jury to appraise and value the land, and fix the amount of compensation to be paid to the owners, and for such proceedings as are requisite for the petitioner to acquire the right to hold and use the premises for its corporate purposes.

On the day last named the circuit judge made an order directing the sheriff to summon 12 disinterested freeholders, registered voters of Volusia county, as a jury to meet at the court-house on the 7th day of the same month, at an hour stated, to proceed under their oaths, duly administered so to do, to take steps to appraise and value the land described in said petition and order, and to fix the amount of the compensation to be made to the owners of the land by the petitioning corporation. On the 8th of April the jury, who appear to have been sworn, met on the premises,--Charles S. Adams appearing for himself in person, and Helen M. Adams appearing by him as her attorney; and the jury then proceeded to view the land, and 'heard the allegations of the parties.' and 'appraised, ascertained, and determined' the value of the tract of land proposed to be taken, and the damage that would be sustained by the owner by reason of the taking thereof, at $50, and they fixed the amount of compensation to be made to Charles S. Adams, as administrator, at the same amount, and found that he, as such administrator, had the sole estate therein; and they state in their report that such 'report and verdict are concurred in by ten of the jurors.' It is, however, signed by the entire 12.

To this report Charles S. Adams, as administrator and individually, and Helen M. Adams, filed objections, of which the fifteenth and subsequent are as follows: That, since the constitution of 1885 became operative, there are no constitutional legislative proceedings authorizing the condemnation proceedings herein sought to be instituted; (16) that chapter 3595, Acts 1885, as amended by chapter 3712, Acts 1887, does not preserve to the land-owner whose land is sought to be condemned 'the right of trial by jury' secured by section 29 of article 16 of the constitution, and is void; (17) that such legislation, so far as it involves jury trials, is offensive to section 20 of article 3 of the constitution, which constitutional provision forbids the legislature from passing special or local laws in regard to summoning and impaneling grand and petit juries; (18) such legislation is offensive to section 3 of the declaration of rights,--' the right of trial by jury shall be secured to all, and remain inviolate forever;' (19) the sum of $50 is wholly inadequate as damages; (20) such legislation is offensive to section 11 of article 5 of the constitution, which ordains a separation of the jurisdiction of the circuit court in cases at law and in equity; and for other and further grounds apparent upon the face of the proceedings.

On the 10th day of August the circuit judge made an order sustaining the exceptions and protests, and refusing a confirmation of the report, and also refusing 'to order further proceedings in this matter, on the ground of the unconstitutionality of the law authorizing the same,' and dismissing the 'case;' to all of which the petitioner excepted.

Upon the entry of this order the railroad company entered its appeal to the ensuing term of this court, the judge fixing the penalty of the appeal-bond at $300, which bond has been approved; and the transcript of appeal has been filed in this court, and citation issued, and service thereof acknowledged.

It is urged as a reason why the mandate should be issued, or should not be withheld, that the appellee will be entitled to damages on the basis of the value of the land, including the cross-ties and rails and road-bed or works put and constructed on the land by the company. This, in our judgment, is not the law. It is true that if persons or corporations vested with the power of eminent domain enter upon and appropriate private property to their use, without the consent of the owner, before taking the steps required by law to condemn the same, the owner may resort to trespass for damages, ejectment for possession, or to equity for an injunction against the use of the land. Still, where such an illegal entry has been made by a body possessing the power of eminent domain, it may condemn the property entered upon, and thus secure a right to the possession and enjoyment thereof. If an entry has been made by the express or implied consent of the landowner, it is clear that he should not have the value of what has been put upon the land; and the better authority is that the same rule also applies in the absence of any consent by the owner. Lewis, Em. Dom. § 507; Baker v. Railroad Co., 57 Mo. 265.

Though as a general rule, things affixed to the freehold so as to be a part thereof become, as against a trespasser or person entering tortiously and affixing them, the property of the owner of the soil, this rule is not applicable as against a body having the power of eminent domain, and entering without leave and making improvements for the public purpose for which it was created and given such power. The principle controlling the land-owner's right to damages in such cases is that he shall have compensation for the damage actually sustained by him, and no more, and that the trespasser's liability shall be likewise limited. This principle is affirmed in Mississippi, Michigan, Iowa, Illinois, Minnesota, Wisconsin, Oregon, Pennsylvania, and Alabama. Railroad Co. v. Dickson, 63 Miss. 380; Morgan's Appeal, 39 Mich. 675; Railroad Co. v. Dunlap, 47 Mich. 456, 11 N.W. 271; Daniels v. Railroad Co., 41 Iowa, 52; Railroad Co. v. Goodwin, 111 Ill. 273; Greve v. Railway Co., 26 Minn. 66, 1 N.W. 816; Lyon v. Railroad Co., 42 Wis. 538; Navigation Co. v. Mosier, 14 Or. 519, 13 P. 300; Justice v. Railroad Co., 87 Pa. St. 28; Jones v. Railroad Co., 70 Ala. 227. See, also, Railroad Co. v. Booraem, 28 N. J. Eq. 450; Burgess v. Clark, 13 Ired. 109; Railroad Co. v. Deal, 90 N.C. 110; ...