Provolt v. Chicago, Rock Island & Pacific R.R. Co.

• Decision Date: 31 August 1874
• Parties: ZACHARY PROVOLT, Respondent, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO., Appellant.
• Court: Missouri Supreme Court

57 Mo. 256

ZACHARY PROVOLT, Respondent,

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO., Appellant.

Supreme Court of Missouri.

August Term, 1874.

Appeal from Clinton Circuit Court.

J. H. Shanklin & M. A. Low, for Appellant.

I. The Chicago & Southwestern Railway Company entered on the land in controversy, and made costly, valuable and permanent improvements thereon with the full knowledge of respondent who made no complaint until the commencement of this suit. The respondent, cannot now, after he has permitted said company to expend large sum sof money thereon, and the public to acquire important interests in the road as a line of commerce and an established mail route, assert his right by ejectment or in any mode which will interrupt the continued operation of the road. (McAuley vs. W. Vt. Railw., 33 Vt., 311; Knapp vs. McAuley, 39 Vt., 275; B. & O. R. R. Co. vs. Strauss, 37 Md., 237; Illingworth vs. Manchester, &c. R. R. Co., 2 Eng. Railw. cas. 136, [*187]; Cairncross vs. Lorimer, 7 Jur., N. S., 150; Greenhalgh vs. The Manchester, &c. R. R. Co., 3 Myl.& Cr., [Eng.Ch.] 784; Kerr on Fraud & Mist., 126 to 135; Holmes vs. Jersey, &c., 1 Beas., 299; Duke of Devonshire vs. Elgin, 14 Beav., 530; White vs. Wakely, 26 Beav., 20; High Inj., 231, § 417; Elmslie vs. Delaware, &c., 4 Whart., 425; Delaware, &c. vs. Raritan, &c., 1 McCart., 445; Torrey vs. Camden, &c., 3 C. E. Green, 293; Goodin vs. Cin., & c. R. R. Co., 18 Ohio [St.], 169; Lindell vs. McLaughlin, 30 Mo., 28; Blair vs. Smith., 16 Mo., 273.)

II. When he stood by and saw the work going on and made no objection, the railroad company might well have supposed that he did not insist on pre-payment of his damages. And the shortest period of clear acquiescence, so as fairly to lead the company to infer that the party intends to waive his right to present payment, will conclude his right to assert the claim in any such form as to stop the running of the road after it has been put in operation, whereby the public acquire important interest in its continuance. (McAuley vs. Western Vt. Rw., supra.)

S. H. Corn, for Appellant.

I. Sections 8 and 9 of appellant's amended charter of Feb. 24th, 1853, is inconsistent with Art. 5 of the amendments to the Constitution of the United States, and § 16 of Art. I, of the Constitution of the State of Missouri, because,

1st. It directs the taking of private property for public use without providing the owner thereof with a proper and adequate means of obtaining compensation. The only remedy provided is a judgment against the company, which is not sufficient. (See Walther vs. Warner, 25 Mo., 287, and cases there cited.)

2nd. Upon the tender or deposit with the clerk of the amount of the first assessment of damages, it permits the company to take possession of the land and appropriate it to its own use, without providing any means whatever of meeting the contingency of a subsequent commission reporting damages in excess of what was reported by the first; thus compelling the land owner either to take the amount of the first report, however inadequate, or to submit to a forced sale of his land to the company, on credit. (See authorities cited above.)

The history of this case demonstrates the truth and force of the foregoing propositions. Viewers were appointed who reported the damages at seventy-five dollars; that sum is said to have been paid to the clerk of the court for respondent's use; the report was set aside; other commissioners appointed, reported the damages at one hundred and seventy-five dollars. Meanwhile the company had taken possession of the land, and long before judgment for the damages was obtained, had leased and delivered possession of the land, including respondent's land to the appellant; and the judgment became simply worthless for want of adequate means of enforcing it.

This statute and the proceedings had under it can therefore be no defense to this action.

II. If, however, it is held that the entry upon the land is justified by the statute, it is then contended that the entry authorized by the statute is for the purpose of constructing the work only, and for no other purpose; and that the occupancy thereby permitted can continue no longer than the pendency of the suit to ascertain the damages, and upon the termination of which, if the damages so ascertained are not paid, this right of possession utterly ceases and determines. The payment of the damages assessed is a condition precedent to the right of the company to occupy the land. (1 Redf. Railw., [4th. Ed.] pp. 237-240; Walther vs. Warner, 25 Mo., 277.)

III. These statutory powers for taking land are in derogation of common right and extend no further than expressly stated in the act; and it must affirmatively appear that every pre-requisite of the statute has been fully complied with. (See Redf. Railws., vol. I, [4th Ed.,] 233, 234; Lind vs. Clemens, 44 Mo., 540; Ells vs. Pacific R. R. Co., 51 Mo., 200; Anderson vs. City of St. Louis, 47 Mo., 479.)

IV. The effect of these statutory powers is nothing other than that of compelling the individual to submit to a sale of his property at an assessed price; the price to be paid is of the essence of the sale, and the buyer does not become the owner of the thing, but by the payment of the price, unless the seller agrees to accept some other security in lieu of it; and there is no reason in ordinary cases, not calling for an exception to the general rule, why an individual should be compelled to part with his property to the public on credit (Per Scott, Justice, in Walther vs. Warner, 25 Mo., 287, cited above.)

And the appellant can stand in certainly no better relations to the respondent than that of a vendee in possession, under a contract of purchase. And to successfully resist an action of ejectment by the vendor, it must show a compliance on its part, with the terms and conditions of the contract. (See Glasscock vs. Robards, 14 Mo., 350; Tyler Eject., 565; Gibb vs. Sullen, 48 Mo., 237; Pierce vs. Suttle, 53 Barb., 155.)

V. Ejectment is the proper remedy. (Anderson vs. City of St. Louis, 47 Mo., 479.)

WAGNER, Judge, delivered the opinion of the court.

This was an action of ejectment to obtain possession of a part of a lot in the town of Cameron, upon which, the Chicago and Southwestern Railway had constructed its road.

The defendant in its answer alleged, that during the years 1870 and 1871, the company located and constructed its road over the land described in the petition, and on the 23rd day of February, 1871, commenced the necessary proceedings in the Circuit Court to obtain the right of way over said land; that commissioners were appointed to assess the damages sustained by the plaintiff by reason of the appropriation of the land to the use of the company; that on the 4th day of March, 1871, the commissioners reported the damages to be the sum of seventy-five dollars, which sum of money the company paid the clerk of the court for the use of the plaintiff; that exceptions to the report were duly filed by the plaintiff, and the report was set aside and other commissioners appointed to re-assess damages at the August term of the court; that upon the 15th day of March, 1871, the railway company entered upon the land and proceeded to construct its road thereon, and did construct its road and continued to occupy the same until October, 1871, when it leased its whole line to the defendants, who have had possession and been running regular trains thereon ever since.

The replication stated that the commissioners appointed to re-assess the damages, reported the same at one hundred and seventy-five dollars, and the court at its August term thereof, for 1872, confirmed the report in favor of the plaintiff and against the company for that sum, and made an order, conditioned, upon the payment of the judgment, that the right of way over the land, for the use of the road, should vest in the company. It was admitted that the amount assessed by the last commissioners had never been paid. The court then declared the law to be for the plaintiff and gave judgment accordingly.

The charter of the company under which the proceedings for condemnation were had, provides that persons appointed to view and value the lands, shall file their report in the office of the clerk of the Circuit Court of the county in which the land is situated, and if no valid objections are made to the report, the court shall enter judgment in favor of such owner, against such company, for the amount of the damages assessed, and shall make an order vesting in the company the title to the land; that objections to the report must be filed within ten days after filing the report, which objections the judge may examine and confirm, or set aside the report and appoint three other viewers,...