Madden v. Louisville, New Orleans And Texas Railway Co

• Decision Date: 22 April 1889
• Citation: 6 So. 181,66 Miss. 258
• Court: Mississippi Supreme Court
• Parties: JULIA MADDEN v. LOUISVILLE, NEW ORLEANS AND TEXAS RAILWAY CO

6 So. 181

66 Miss. 258

JULIA MADDEN v. LOUISVILLE, NEW ORLEANS AND TEXAS RAILWAY CO

Supreme Court of Mississippi

April 22, 1889

April 1889

APPEAL from the circuit court of Warren county, HON. RALPH NORTH Judge.

Ejectment by appellant, Julia Madden, against the appellee, The Louisville, New Orleans and Texas Railway Co. The defendant's title to the land in controversy depends upon the validity of certain proceedings by which it was condemned, and under which condemnation proceedings defendant took possession and claims title. The statute authorizing and regulating the condemnation is found in the charter of the "New Orleans, Baton Rouge, Vicksburg and Memphis Railroad Co.," approved March, 1882. See Acts 1882, 20. By authority of a subsequent act of the legislature (Acts 1884, 36) this company was consolidated with the "Memphis and Vicksburg Railroad Company" and the "Mississippi Valley and Ship Island Railroad Company," and the consolidated roads took the name of "The Louisville, New Orleans and Texas Railway Company," and this company possessed the rights and franchises given in the above-mentioned charter. The provision of said charter in reference to condemning right of way, etc., is as follows:

"That the company be, and is hereby authorized and empowered, to enter upon, take and hold any land or premises whatever whether by purchase, grant, donation, devise, or otherwise that may be necessary and proper for the construction and working of said road, not exceeding fifty feet in width on each side of the line of its railroad, unless a greater width be required for excavation or embankment; and also any lands or premises that may be necessary for turnouts, side tracks standing places for cars, depots, station houses, works, and machine shops, and any other structures required in the construction and security and working of said railroad; and said company shall have the right to cut and remove trees, * * * etc.; and in case the owners of such lands and premises cannot agree with said company as to the value of the land taken or to be taken for the use of the said road, the value thereof shall be determined by the appraisal of three disinterested commissioners, who may be appointed upon the application of either party to the chancery court of the county in which the lands or premises to be taken lie; and the said commissioners shall appraise in their assessment of damages such premises at what would have been the value thereof had not the road been built; and upon the return into court of such appraisement, and upon the payment into the same of the estimated value of the premises taken, for the use and benefit of the owners thereof, said premises shall be deemed to be taken by said company, which shall acquire full title to the same for the purposes aforesaid. Either party feeling aggrieved at such appraisement may, within thirty days after the same has been returned into court, file an appeal therefrom, and demand a jury of twelve men to estimate the damages sustained; but such appeal shall not interfere with the right of the said company to enter upon the premises taken, or to do any act necessary and proper in the construction of its road; and the party appealing shall give bond, with sufficient security for the payment of costs that may arise from such appeal; and in case the party appealing does not obtain a verdict increasing or diminishing, as the case may be, the award of the commissioners, such party shall pay the whole cost incurred by the appellee as well as his own, and payment into court for the use of the owner of the premises taken of a sum equal to that finally awarded shall be held to vest in said company the title of said land and the right to use the same; * * * and in case any of the lands to be taken as aforesaid shall be held by an infant, femme covert, non compos, or insane person, or persons residing without the state, or subject to legal disability, the court may appoint a guardian for such party, to appear in proper person, who shall give bond, etc., and who may represent in court the person disqualified or residing without the state when the proceedings shall be had in reference to the appraisement of the premises, etc."

By an act of the legislature, approved March 15, 1884, which does not appear in the published laws, the above section was amended so as to confer upon the chancery cleric the power to perform all the duties and acts required of, or permitted to be done by, the chancery courts, whenever the proceedings for condemnation should be commenced or done in vacation. It was also provided that five days notice of the condemnation should be given to the landholder when the petition was filed by the railroad company; and the appeal provided for should be made out and filed in the office of the chancery clerk within ten days after the return of the award. Such appeal was to be tried by a jury of freeholders to be summoned into the chancery court at its next regular session.

This cause was submitted along with another for trial before the court, both sides waiving a jury, and upon an agreed statement of facts, which is as follows:

1. It is agreed that the foregoing cases shall be submitted to the court for trial and adjudication in lieu of a jury upon the following agreed facts:

2. Luke Madden, a resident of the town of Delta, La., was on the 17th day of February, 1886, the owner in his own right and title of the lands described in the declarations in these cases.

3. On said 17th day of February, 1886, and while he was yet the owner, the defendant company, having failed to agree with him on a price for the same, instituted proceedings to condemn said property under its charter, and the amendments thereto, which proceedings were prosecuted to a finality; and defendant's title to the lot in controversy depends for its validity upon the legality of that proceeding and subsequent steps taken by the parties, as shown hereafter.

4. The only papers ever filed in the cause are: 1st. A petition to the clerk of the chancery court of Warren county for the appointment of commissioners to assess the damages, dated February 17, 1886. 2d. An order appointing commissioners, bearing date February 27, 1886. 3d. A report from such commissioners fixing the damages in favor of Luke Madden at seven hundred dollars, dated March 6, 1886.

5. On the day the petition was filed the attorneys for the railroad company wrote a letter to Luke Madden and sent same to him by mail at Delta, inclosing to him a notice that the railroad company would on the 27th day of February apply to condemn the lot in question, and that if he desired he could be present in person or by attorney, and that if he did not so appear they would have a guardian appointed to represent him. This notice was signed by the attorneys of the company, and was received by Madden in due course of mail. He did not respond or attend when the commissioners were appointed. The latter were appointed in his absence, and without his knowledge or consent. The attorneys for the company did not have a guardian appointed to look after his interest, as they wrote him they would do.

6. On March 1, 1886, Madden, in consideration of an alleged debt due by him to his wife, conveyed the lot to her by deed, duly signed and executed in all respects, and the same was acknowledged and duly recorded the same day in the chancery clerk's office of Warren county, in the deed records.

7. The commissioners met, by agreement among themselves, on the premises described in the declaration, on March 6, 1886, and assessed the damages as aforesaid on this lot and a large number of other lots in that neighborhood, they having been appointed as commissioners in those cases also.

8. The commissioners were not sworn before entering upon the discharge of their duties as such commissioners, and made the assessment without having taken any oath in regard thereto, of any kind.

9. No notice was given by the commissioners, by the attorneys for the railroad company, or any one else to either Luke Madden or Julia Madden, of the time and place when and where the commissioners would meet for the purpose of making the assessment, and Julia Madden was not there.

10. A few days prior to the time the commissioners met to make the assessment, Luke Madden saw in the local columns of a newspaper that the commissioners would meet on the sixth day of March to make the assessment in all the cases mentioned, and came over and was present when the commissioners were present, and walked over the ground. He was asked by one of them what his property was worth, and answered two thousand five hundred dollars; that he paid for it six hundred and fifty dollars about ten years before; that it was his wife's property and he did not think she wanted to dispose of it at all; that they had bought it for a home for themselves.

11. The commissioners took no evidence of the value of the lots except on the ground as they walked over it, and then only in the informal manner stated above of asking Luke Madden what his lot was worth, to which he replied as above. No sworn evidence of any kind was offered by Madden, or called for by the commissioners. But the commissioners asked him if the had anything further to say, and he said "no."

12. Shortly after the report of the commissioners was filed, the defendant company paid the amount of the award into court pursuant to the provisions of its charter, to the credit of Luke Madden, whereupon it was immediately attached and garnished by a creditor of Luke Madden, Messrs. Miller, Smith & Hirsch, the attorneys for the railroad company in this condemnation proceeding, acting as the attorneys for the attaching and garnishing creditor. A garnishment was also served on the...