Kanne v. Minneapolis & St. Louis Ry. Co.
| Decision Date | 05 June 1885 |
| Citation | 33 Minn. 419 |
| Parties | GOTTLIEB KANNE <I>vs.</I> MINNEAPOLIS & ST. LOUIS RAILWAY COMPANY. |
| Court | Minnesota Supreme Court |
Plaintiff brought this action in the district court for Waseca county, to recover possession of certain real estate together with damages for withholding the same. The defendant denied plaintiff's title, and set up the condemnation proceedings which were considered by this court in Minn. & St. L. Ry. Co. v. Kanne, 32 Minn. 174, together with certain proceedings had in that case and certain acts of plaintiff (which are stated in the opinion) claimed by defendant to constitute a waiver of defects in the condemnation proceedings. The action was tried before Buckham, J., who directed a verdict for plaintiff. Judgment was entered accordingly, from which the defendant appeals.
J. D. Springer, for appellant.
Lewis & Leslie, for respondent.
It must be taken as the law of this case that the award of the commissioners was void for want of notice to plaintiff of the time and place of their meeting to assess his damages. Minn. & St. Louis Ry. Co. v. Kanne, 32 Minn. 174. Of course, tender of the amount would be unavailing, because the plaintiff would not be bound to receive it. If the award was void, it also follows that the plaintiff was not required to move to set it aside, but might attack it collaterally in any action in which rights were claimed under it. Therefore, really the only question in the case is whether the plaintiff has, by his subsequent acts, waived the objections to the validity of the award, or has estopped himself from now raising them.
All that the evidence tends to show is that, when the defendant entered upon the land and built its road, he made no remonstrance or objection, and did not until the commencement of this action. Mere silence in the presence of a trespass waives nothing and consents to nothing. Leber v. Minn. & N. W. Ry. Co., 29 Minn. 256. But even if the conduct of plaintiff might be construed as giving a license to enter the land, this would constitute no waiver of objections to the validity of the award. Such license might be granted with the expectation that defendant would settle with him for his compensation, or take steps to have it ascertained according to statute. The fact of plaintiff's demanding payment of the award, (which, in legal effect, was refused by defendant, Kanne v. Minn. & St. L. Ry. Co., 30 Minn. 423,) constituted no such waiver. This act merely indicated his willingness to waive any objections to the award if he could then receive payment of the amount.
Subsequently to the commencement of this action, plaintiff made a motion to set aside the award upon the grounds, among others, that no notice of the meeting of the commissioners was ever given him; that the commissioners were guilty of irregularities and misconduct; and also that the award had not been paid within six months. This motion the court denied, and at the same time denied a counter-motion by defendant for judgment on the award. From the order denying plaintiff's motion no appeal was taken.
Defendant now contends that by thus uniting, as grounds of his motion, other matters with those that were jurisdictional, he appeared generally, and thereby waived all objections to jurisdiction, within the doctrine of Curtis v. Jackson, 23 Minn. 268. While there is no doubt of the correctness of the proposition laid down in the case cited, that if a party does not limit his appearance to jurisdictional questions, but also calls into action...
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