Marianna & B.R. Co. v. Maund

• Decision Date: 21 November 1911
• Citation: Marianna & B.R. Co. v. Maund, 56 So. 670, 62 Fla. 538 (Fla. 1911)
• Court: Florida Supreme Court
• Parties: MARIANNA & B. R. CO. v. MAUND.

56 So. 670

62 Fla. 538

MARIANNA & B. R. CO. v. MAUND.

Florida Supreme Court, Division B.

November 21, 1911

Appeal from Circuit Court, Jackson County; J. E. Wolfe, Judge.

Bill in equity by H. V. Maund against the Marianna & Blountstown Railroad Company.From a decree for complainant, defendant appeals.Reversed, with directions to dismiss bill without prejudice.

Syllabus by the Court

SYLLABUS

Where a bill is filed to recover damages of a permanent nature from a railroad company for trespasses committed in constructing its railway through land without authority, the owner of the land, or reversioner, or the party having the right of action for such damages, is the proper party to sue for such.

A complainant cannot supply the want of a valid claim at the commencement of the action by the acquisition or accrual of one during the pendency of the action.

If a party who has contracted to purchase land is in possession of it under such contract at the time that unauthorized trespasses are committed upon it, and a deed of the land is subsequently made to him in pursuance of such contract, such deed is evidence of his right to recover damages for the trespasses.

Where a bill is filed to recover damages or compensation for the unauthorized appropriation by a railway company of a right of way through the lands of complainant, the width of the right of way should be described in the bill seeking compensation therefor, and in the decree awarding it.

COUNSELC. L. Wilson and Paul Carter, for appellant.

Smith &amp Davis, for appellee.

OPINION

HOCKER, J.

On the 24th of March, 1910, appellee filed his bill against appellant in the circuit court of Jackson county, alleging in substance, that he was then the owner in fee simple of certain lands situate in Jackson county, which lands were of great value to complainant for various purposes, especially for farming and stock raising; that about the --- day of -----, 1909, the defendant company, a corporation, unlawfully and wrongfully entered upon said land 'then owned and in possession of complainant,' wrongfully building and constructing its right of way and railway tracks upon and across said lands, and has continued to use its right of way and railroad tracks without complainant's consent; that defendant corporation has never compensated complainant for taking said land, although it has remained in the continued use thereof, and has greatly depreciated the value of said lands by cutting off a part of said lands between the right of way and the Chipola river; that complainant is entitled to compensation to the amount of $3,000, and claims a lien thereon, together with the improvements upon the same, for said amount.The bill prays that a full answer may be required; that the court will adjudge and decree the amount of compensation for the taking of the property as alleged and that such amount may be decreed to be a lien upon the land so taken with the improvements thereon that defendant be directed to pay the same by a short day and in default of payment that defendant and all persons claiming by or through or under it be forever foreclosed and barred of all right and equity of redemption of, in, and to the said lands; that a master be appointed, etc.The bill contains also a prayer for general relief.

A demurrer was filed to this bill and overruled.The defendant answered, in substance, neither admitting nor denying the ownership of the lands by the complainant, and demanding proof of this fact, denying that its railway has depreciated the value of complainant's lands, that its right of way and track takes up a good portion of his lands, and that it cuts up and divides the land so as to make it less salable, and alleging that the land crossed by its line of railway along the bank of the Chipola river is of small value, and useless for agricultural purposes.The answer admits it has not paid complainant any compensation for said land, and that he is entitled to some compensation for the right of way, if he owns the land, but denies it is worth $3,000, and alleges that $250 would be reasonable compensation.

It seems that this cause was brought to issue on this original bill and the answer thereto; that quite a large amount of testimony was taken; and that, because it appeared the complainant did not have the legal title to the land in controversy at the time he filed his original bill on the 13th of February, 1911, he moved the court to be allowed to file an amended bill which would meet the facts.In this amended bill, he alleged substantially that on the --- day of -----, 1908, he took a lease in writing of the lands in question with an option of buying them; that subsequently he made valuable improvements on the lands with the view of buying them; that on November 1, 1909, he did buy said lands, receiving a bond for title from the owner, the Milton Land & Investment Company; that thereafter, on October 10, 1910, in accordance with said bond for title, the Milton Land & Investment Company made a deed to complainant, conveying said lands; and that he thus is the owner in fee simple of said lands, but was indebted to said Milton Land & Investment Company for the balance due said company, to secure which he agreed and promised to execute a mortgage on said lands, which mortgage he had executed, though his wife had not signed it.

The bill then alleges that on the --- day of -----, 1909, the defendant railroad company wrongfully entered upon said lands then owned by complainant's grantor, but in complainant's possession, under the written contract for the purchase thereof, and wrongfully built its tracks and erected its right of way across said lands, which said defendant company has since continued to use, without making any compensation to complainant.

The bill alleges that the acts of defendant company had depreciated the market value of said lands, taking up a good portion thereof, and cutting up and dividing it so as to make it unsalable, especially the part between the Chipola river and the railroad tracks and right of way.The bill then alleges that on January 5, 1911, the Milton Land & Investment Company, by an instrument in writing, released, transferred, and assigned to complainant any cause of action or right of action it may have had, or then had, against defendant company for the use of the right of way aforesaid through said lands, and for any damages it may have suffered by reason of such use.The bill alleges that defendant has never paid complainant for the use of said lands, and is in possession without complainant's authority, or that of his grantor.It alleges that complainant is entitled to compensation in the sum of $3,000, and claims a lien therefor on said lands and improvements.The prayer of the bill is substantially the same as in the original bill.

The defendant demurred to this amended bill, because it was indefinite and vague, not stating a cause of action; that the...