Manion v. Louisville, St. Louis & Texas R. Co.

• Decision Date: 04 October 1890
• Citation: 90 Ky. 491
• Court: Kentucky Court of Appeals
• Parties: Manion v. Louisville, St. Louis & Texas R. Co.

Page 491

90 Ky. 491

Manion v. Louisville, St. Louis & Texas R. Co.

Court of Appeals of Kentucky.

October 4, 1890.

APPEAL FROM HENDERSON CIRCUIT COURT.

JOHN YOUNG BROWN FOR APPELLANT.

HELM & BRUCE, YEAMAN & LOCKETT FOR APPELLEE.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

The General Statutes, chapter 18, b, sec. 7, provides: "Upon confirmation of the report of commissioners by the county court, or the assessment of damages by said court as herein provided, and the payment or tender to the owners of the amount due as shown by the report of the commissioners when confirmed, or as shown by the judgment of the county court when the damages are assessed by said court, and all costs adjudged to the owner, the railroad company shall be entitled to take possession of said land or material, and to use and control the same for the purpose for which it was condemned, as fully as if the title had been conveyed to it."

The Louisville, St. Louis and Texas Railway Company sought to condemn the land of the appellants for the use of the corporation, and having applied to the Henderson County Court for the appointment of commissioners to go upon the land to ascertain its value and the damages that would be sustained by the appellants by reason of the taking and use of the property, subsequently abandoned the condemnation proceedings, and refused to pay the damages assessed against it.

The commissioners appointed fixed the value of the property, including the incidental damages sustained, at seven hundred and fifty dollars. The report was filed in the county court, and the appellants summoned to show cause why the report should not be confirmed, and on the hearing in that court both the appellants and the railway company filed exceptions to the report of the commissioners, and a jury was impaneled, and assessed the entire damages at eight hundred dollars. A judgment was then awarded in favor of the railway company, by which, upon the payment or tender of the money, the title to the land described should vest in it for the uses for which it was condemned, and a commissioner was appointed to execute a deed in pursuance of the judgment after the payment or tender of the money.

The proceedings under the statute are, first, the appointment of commissioners upon the application of the company to assess the damages; then report in writing, fixing the amount or sum to be paid, and describing the land condemned; a summons upon the filing of the report against the owner to show cause why the report should not be confirmed, and if no exceptions are filed by either party the report is confirmed. When exceptions are filed (and they seem to have been filed in this case) a jury is impaneled to try the issues of fact, if any, made by the exceptions. This issue of fact generally arises as to the quantum of damages, and the verdict of the jury is conclusive, subject to the right of an appeal to a higher tribunal. After verdict, if not set aside, the county court is required to enter a judgment in the nature of the finding, and to make an order for the conveyance of the title on the payment of the money. From the judgment either party may appeal within thirty days to the circuit court, where the case is tried de novo. All this proceeding was gone through with, and a judgment entered, but no appeal prayed by either party, and after the expiration of thirty days, the time for the appeal, the railway company notified the appellants that they would abandon the right to enter. This action was then instituted to recover the damages assessed, the appellant alleging, in substance, the proceedings had with reference to the condemnation and the failure of the appellee to notify the appellant of its intention not to enter or use the property until after the time had expired for taking the appeal. A demurrer was sustained to the petition, and this appeal prayed. The question presented in this case is, has the owner of the land condemned a cause of action against the corporation for the damages awarded before its entry on the premises for the use contemplated, or before its acceptance in some manner by which the owner is divested of the title or the enjoyment of his estate?

It is conceded that the owner may become, and is, in fact, made the involuntary vendor of his land under the exercise of this sovereign power, and while there may be no contract...