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

• Decision Date: 30 April 1879
• Citation: 69 Mo. 633
• Parties: PROVOLT v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

69 Mo. 633

PROVOLT

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

Supreme Court of Missouri.

April Term, 1879.

Appeal from Clinton Circuit Court.--HON. GEORGE W. DUNN Judge.

Shanklin, Low & McDougal for appellant

1. The petition does not state facts sufficient to entitle the plaintiff to equitable relief. If the facts stated in the petition are true, the entry of the railroad company upon plaintiff's land was a naked trespass, and ejectment would be the proper remedy. Walther v. Warner, 25 Mo. 277; Evans v. M., I. & N. R. R. Co., 64 Mo. 453; Walker v. C., R. I. & P. R. R. Co., 57 Mo. 275. Again, there is no allegation that the corporation was not solvent on the 8th day of March, 1873, the day when this suit was instituted; nor does the petition show that executions issued on said judgment had been returned nulla bona, before that date. As a matter of fact none had then been so returned. The petition, therefore, does not bring the case within the decision in Evans v. M., I. & N. R. R. Co.

2. The court erred in admitting in evidence the execution issued on the 12th day of February, 1873, and returned on the 29th day of April, 1873, after the suit was brought. Evans v. M., I. & N. R. R. Co., 64 Mo. 463; Nicholas v. Salem, 14 Gray 490; High Inj., § 394; New Albany v. Connelly, 7 Ind. 32; Parham v. Justices, &c., 9 Ga. 841; Keene v. Bristol, 26 Pa. St. 46. This execution was not issued by order of the court. The right to issue it at all was purely statutory, and the mode prescribed by the statute must be followed. Not having been ordered by the court, this execution was a nullity so far as the defendant was concerned. Wag. Stat., § 3, 327.

3. Even though the execution was properly issued, the plaintiff should have waited until the return day before appealing to equity for concurrent aid. It is true that this suit was instituted in ejectment, but the plaintiff cannot obtain relief now that he would not have been entitled to then.

4. The second execution was issued long after this suit was brought, and surely cannot affect the rights of the parties so far as the suit is concerned. It is also open to all the objections urged against the first.

5. The judgment is erroneous. It requires the defendant to pay the plaintiff $175, when a part of the amount had already been paid.

S. H. Corn for respondent.

1. Plaintiff has a remedy in equity, (57 Mo. 256,) and as equity jurisdiction is founded on the statement of facts and not upon the specific relief sought, it follows that when the jurisdiction attaches the court will grant such relief as the plaintiff shows himself entitled to, irrespective of the prayer of the petition. Keeting v. Spradling, 13 Mo. 321; Corby v. Bean, 44 Mo. 379. (a) It has power in a proper case to pass the title to real estate and to decree that possession be delivered up, and it may enforce such decree by proper process. Wag. Stat., §§ 27, 28, 1056; Henderson v. Dickey, 50 Mo. 165; Ames v. Gilmore, 59 Mo. 537; Bibb v. Means, 61 Mo. 284. (b) It will enforce the payment of land-damages against a railway company that enters into possession without having paid the same, by an order for such payment within a time named, and, in default of payment, restrain the company from the use of the land until the damages are paid. Redfield on Railways, 238, § 3; Id. 239, § 6; Walther v. Warner, 25 Mo. 277; Evans v. Mo., Iowa & Neb. Ry. Co., 64 Mo. 453; Shute v. Chicago & Mil. R.R. Co., 26 Ill. 436. (c) And if it will restrain the use, why not restore the property? The facts that justify the one will sustain the other. Plaintiff was denied his remedy by ejectment on the ground that he had waived his right to pre-payment of damages. 57 Mo. 256. Having so waived his right to pre-payment, he asked the court to limit defendant's right to occupy without making subsequent payment. He had exhausted his remedy at law. The Chicago & Southwestern Company had transferred its possession to the Chicago & Rock Island Company before judgment for damages was rendered; when rendered, it was worthless; defendant was insolvent; executions were unavailing; ejectment against the defendant in possession was equally so; the taking of plaintiff's property for public use without compensation, was accomplished. An injunction to restrain the further use might well issue upon these facts, but when being compelled by this court to admit waiver of the right to pre-payment, the court below put a reasonable limit upon the right to make subsequent payment, and defendant persisted in their refusal to make compensation beyond the time fixed by the court, a restoration of the property was the only adequate remedy. And this is clearly within the power of the court. When the law fails equity will furnish remedy. Compensation or restoration is the central idea of the remedy furnished by the general statute to which defendants appeal. 1 Wag. Stat., § 3, p. 328.

2. Plaintiff was not bound to give the Chicago & Southwestern Company notice of his intention to apply to court by motion for the enforcement of the payment of his damages by execution. The proceedings for condemnation were had under its charter. See §§ 8, 9, Acts of 1853, p. 357; Acts 1860, § 4, p. 441. This statute authorizes a general judgment for the damages assessed against the company. The power to enforce the same by execution is not restricted, and plaintiff was entitled to a general execution on this judgment. Wag. Stat., § 1, p. 601.

NORTON, J.

On the 23rd day of February, 1871, the Chicago & Southwestern Railway Company instituted proceedings to condemn the right of way over a lot in Cameron, belonging to plaintiff, Provolt. Commissioners were duly appointed to assess the damages which plaintiff would sustain by reason of such appropriation of his land, and on the 4th day of March, 1871, the commissioners made a report allowing damages in the sum of $75. On the 8th day of the same month plaintiff filed exceptions to this report. The railroad company entered upon the land on the 15th day of March, and commenced the construction of its railroad thereon. On the 15th day of April, 1871, the company deposited with the clerk of the proper court, for plaintiff's use, the sum of $75, so awarded by said commissioners. The plaintiff lived near the premises, and when the work was commenced, notified the workmen that the land-damages had not been paid, and forbade them going on with the work until he was paid. The work was continued, however, and he made no further objection. Afterwards such proceedings were had that the report of the commissioners was set aside, and other commissioners appointed, who, on the 22nd day of February, 1872, made a report assessing plaintiff's damages at $175. This report was confirmed on the 15th day of August, 1872. In October, 1871, the possession of the road was delivered to the Chicago, Rock Island & Pacific Railroad Company, and it has continued to operate it ever since.

On the 12th day of February, 1873, plaintiff caused an execution to be issued on the judgment awarding him land-damages, which execution was, on the 29th day of April following, returned not satisfied. Execution was again issued on said judgment on the 18th day of March, 1875, which was also returned nulla bona. Neither of these executions was issued by order of court, nor was any notice given of plaintiff's application to have them issued. One of them was issued a few days before this suit was commenced, but was not returnable, and was not returned until more than a month after the suit was brought. The other execution was not issued until after the judgment in this case had been reversed by the Supreme Court This suit was commenced on the 8th day of March, 1873, by filing a petition in ejectment against the Rock Island Company. On trial the plaintiff had judgment, which was reversed by this court on appeal. Provolt v. C., R. I. & P. R. R. Co., 57 Mo. 256. On the 15th day of December, 1875, plaintiff filed an amended petition, making the Chicago & Southwestern Railway Company a party defendant, and changing the form of the action from ejectment to an equitable action to enforce the payment of his judgment. On trial the plaintiff offered the executions above referred to, in evidence. The defendants objected that they were incompetent, irrelevant and immaterial, and that they were not issued by order of the court, or on motion, after notice to the railroad company. The court overruled the objections, and the defendants duly excepted. The court found for the plaintiff, and entered a decree requiring defendants to pay to the clerk of the court, for use of plaintiff, the sum of $175 on or before the first day of the next term of the court, and in default thereof, requiring defendants to deliver possession of premises to plaintiff and divesting them of all their right or claim thereto. At the next term of the court, the interlocutory decree was made final, and judgment rendered for plaintiff for possession of the land in question, from which judgment defendants have appealed to this court.

1. EMINENT DOMAIN: surrender of land by owner without pre-payment of damages.

It is insisted by defendants that the petition does not state facts sufficient to entitle plaintiff to equitable relief, and if the facts therein stated are true, ejectment is the remedy. We pass this objection with the remark that when this case was once before in this court, as reported in 57 Mo. 256, a judgment in ejectment in plaintiff's favor was reversed at defendant's instance on the ground that ejectment was not the remedy, but that redress must be sought on the equity side of the court, and the judgment was reversed and...