Lusby v. Kansas City, Memphis & Birmingham Railroad Co.

• Decision Date: 27 January 1896
• Citation: 73 Miss. 360,19 So. 239
• Parties: WALKER LUSBY v. KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD CO
• Court: Mississippi Supreme Court

19 So. 239

73 Miss. 360

WALKER LUSBY v. KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD CO

Supreme Court of Mississippi

January 27, 1896

October 1895

FROM the circuit court of Monroe county HON. NEWNAN CAYCE, Judge.

Affirmed.

Robt. E. Houston, for the appellant.

No express authority to relocate its line appears either in appellee's charter or any other statutory enactment, and it does not arise by inference or implication. 6 Am. & Eng Enc. L., p. 522; So. Pac. Railroad Co. v. Wilson, 49 Cal. 396; Morehead v. Little Miami Railroad Co., 17 Ohio 350.

The statutory authority for an additional exercise of the right of eminent domain must be explicitly shown. 6 Am. & Eng. Enc. L., p. 541 (b), and authorities cited; Randolph's Law of Em. Dom., p. 182.

Even under the proper and authorized exercise of this right, compensation must precede the taking, or be tendered prior thereto, to relieve the taking of its character as a trespass. Before the taking, or entry for the purpose of taking, can be done without the consent of the owner, there must be a condemnation and assessment according to the provisions of the charter, and a payment, or tender thereof, of the damages assessed, and any entry prior thereto is a trespass. Railroad Co. v. Payne, 37 Miss. 700; Railroad Co. v. French, 68 Ib., 22; 6 Am. & Eng. Enc. L., pp. 94, 595; Leading Cases Am. Law Real Property, pp. 423, 465; § 17, Const. Miss. 1890. The difference between § 17, const. 1890, and § 10, art. 1, const. 1869, shows the progress of legislation in the protection of private property from the trespasses of both corporations and individuals.

W. B. Walker, on the same side.

The case of Railroad Co. v. Devaney, 42 Miss. 555, relied on by appellee, is distinguishable from the unbroken line of authorities opposed to appellee's contention. It simply allowed the railroad company to meet an extreme and unusual exigency by changing the site of one of the incidental works of its general undertaking. No effort was made in that case to change or relocate the road itself, as appellee desires to do. But it seems, in that case, even the railroad company was not satisfied with the construction by the court of its charter rights, and went to the legislature and obtained a specific grant of power to make the change.

The grant of the right of eminent domain to a private corporation is a statutory grant, must be strictly construed and cannot be liberally or impliedly extended. 6 Am. & Eng. Enc. L., 522; So. Pac. Railroad Co. v. Wilson, 49 Cal. 396; Morehead v. Little Miami Railroad Co., 17 Ohio, 350.

Appellee claims that the survey in which the trees sued for were cut was made for the purpose of relocating its roadway, if found necessary and expedient, to ascertain if its road was properly located and constructed. We contend that no such authority was expressly given by its charter, nor can be implied. Randolph's Law of Eminent Domain, 522; Morehead v. Wilson, supra; 6 Am. & Eng. Enc. L., 522, §§ 8, 9 and notes.

Wallace Pratt and Buchanan & Minor, for the appellee.

1. We maintain that under the powers granted in its charter the defendant company had a right to relocate, and, if necessary, reconstruct its road whenever the best interest of itself and of the public demanded it. Its right of eminent domain was not exhausted by one taking. If events subsequent to the building of the road as first located proved such location or construction to be wrong, and necessarily injurious to the owners of adjacent lands (which was a fact this very plaintiff was then asserting in another action against this defendant for causing an inundation of his lands), the company had a clear right to relocate or reconstruct its line; indeed, there was a duty incumbent on it to do so. All this is plainly settled by the case of Mississippi, etc., Railroad Co. v. Devaney, 42 Miss. 555; Union Pacific Railroad Co. v. Atchison, etc., Railroad Co., 5 Am. & Eng. R. R. Cas., 394; 19 Am. & Eng. Enc. L., 830.

The company having constructed its road, and having been sued for an improper location and construction, was not obliged to wait until long experience had demonstrated the impropriety of the location and construction of its road, and large liabilities for damages to adjacent owners of land had accrued, but, on the reasonable suggestion that the road was not properly constructed, had a right to proceed at once to make investigation by surveys to determine whether it must relocate or reconstruct its road.

Plaintiff will not deny that the powers granted to defendant by its charter extend, by implication, to authorize the exercise of the powers specifically granted whenever necessary to the proper maintenance or repair of its road. In the Devaney case (42 Miss.) the court held that the grant of such a power "invested them with the implied power to take lands in invitum, after the location and completion of their road, if there was a necessity for the exercise of this power, for the preservation of some right they would lose without the exercise of it, or for the repair or maintenance of their road." Page 598.

Defendant's liability, then, for this entry on plaintiff's land in making these surveys is to be determined by the same principle as its liability for entry in making the ordinary preliminary surveys for the original location of the road. And this liability, it is conceded, is merely to compensate the landowner for the actual damages sustained by him. The defendant company was not a trespasser in making such surveys, but was on the land of complainant by due authority of law. The charter authority to enter on lands to make preliminary surveys (Acts 1886, p. 192, par. 2) will extend to protect it from liability as for trespass in making these subsequent surveys to determine whether a relocation or reconstruction was necessary. Cushman v. Smith, 34 Me. 247; Bloodgood v. Mohawk Railroad Co., 14 Wend., 51; 19 Am. & Eng. Enc. L., 838; 2 Wood on Railroads (Minor's ed.), 894, 948.

"For the mere entry to locate and survey its route, however, and to ascertain the feasibility of a location there, which is not followed by occupation of the land, trespass will not lie, and, unless the statute provides therefor, no damages are recoverable." 2 Wood on Railroads (2d ed.), 894. Where the legislature of a state authorizes an act which, in its natural consequences, may be injurious to the property of another, and prescribes the mode in which damages are to be ascertained, he who does the act is not liable as a trespasser. Woods v. Nashua Mfg. Co., 4 N.H. 527; Lebanon v. Alcott, 1 N.H. 339.

2. The plaintiff must show a wilful trespass in order to recover the penalty. Perkins v. Hackleman, 26 Miss. 41; Mhoon v. Greenfield, 52 Ib., 434; McCleary v. Anthony, 54 Ib., 708; Cushing v. Dill, 3 Ill. 460.

Argued orally by J. W. Buchanan, for the appellee.

OPINION

WOODS, J.

This action was instituted by the appellant in the circuit court of Monroe county for the recovery, in one of the counts of the declaration, of actual damages, and, in the other count, for the statutory penalty for trespass in cutting trees upon appellant's lands. The count for the actual damages was, by the appellant, dismissed in the court below, whereby the right to recover the statutory penalty for the cutting of trees was left as the sole issue to be determined.

Brushing aside all the mere forms of pleading adopted by the parties in reaching and raising this issue, we state at once the defense set up by the appellee, which was and is, in a word, that, because of certain other suits begun by the appellant and others against appellee to recover for injuries sustained by them in the flooding of their lands and destroying their crops, because, as alleged by them in their complaints, of the improper construction of appellee's line of railway, it became, in the judgment of appellee, necessary to make fresh surveys over appellant's lands, with a view to a change and relocation of the said line, if, after such surveys, it should appear to be necessary to reconstruct or relocate its line of railway, and this right to resurvey and change and relocate is asserted to be contained in the grant of its powers contained in its charter.

It thus appears that the great underlying question presented is, Was the original selection and location of the route, and the actual construction of the railroad in its entirety many years ago, final, and was the power to exercise the right of eminent domain exhausted by the one exercise of it in such original selection and location of the route and the actual construction of the road?

It will be necessary to examine the charter of appellee found in chapter 123, Acts of 1886, and ascertain precisely what powers were granted, and the extent of the grant. The second section of the charter declares the purposes for which the Kansas City, Memphis & Birmingham Railroad Company is formed, and is in these words, in so far as it is necessary for our present examination to quote:

"SEC. 2. The purposes for which said corporation is formed are the construction, maintenance and operation of a line of railroad, with one or more tracks, and a telegraph line in connection therewith, extending from some point in DeSoto county, on the boundary line between this state and the State of Tennessee; thence through and across the State of Mississippi in a southeasterly direction to a point in the boundary line between this state and the State of Alabama, and running in the general direction of the city of Birmingham, in the last named state; . . . and, for the purposes aforesaid, said corporation is hereby vested with power: . . .

"(2) To cause such examination and survey for its proposed railroad and telegraph line and branches to be made, as...