"July
19, 1868, the aforesaid railroad company filed an application
in the county court of said county for the appointment of
commissioners for the condemnation of a right of way across
said quarter sections of land 100 feet on each side of the
center line of its tracks. Commissioners were accordingly
appointed, and they reported to said court that
the plaintiff was damaged in the sum of $ 150 for the right
of way, as prayed for, through his homestead quarter. From
this award he appealed to the district court; but he
subsequently settled with the company for $ 500, dismissed
his appeal, and delivered to the company a deed which
conveyed to it an easement of 200 feet wide across said
homestead. Plaintiff now alleges that defendants obtained no
right of way by virtue of said proceedings because they were
in many respects irregular and void. But, if said
condemnation proceedings were irregular or even void
plaintiff estopped himself from making such a plea when he
dismissed his appeal and accepted the $ 500 from the railroad
company. Kile v. Town of Yellowhead, 80 Ill. 208;
Hartshorn v. Potroff, 89 Ill. 509; Burns v.
Milwaukee & M. R. Co., 9 Wis. 450; Hitchcock v.
Danbury & N. R. Co., 25 Conn. 516; Trester v.
Missouri P. R. Co., 33 Neb. 171, 49 N.W. 1110. At all
events, plaintiff's right of way deed closes his mouth as
to the existence of a 200-feet right of way across his
homestead. It is true, however, that he alleges that said
deed was altered subsequently to delivery thereof by a change
of the word 50 to 100, thereby making the right of way 200
feet instead of 100 feet wide. But we are compelled, by a
preponderance of the evidence, to find that he was mistaken.
The recital in the deed that said alteration was made before
the execution of the deed; the appearance of the ink, the
similarity of the penmanship of said alleged alterations with
the handwriting of the body of the instrument, and J. A.
Unthank's testimony, all convince the court that
plaintiff has forgotten the circumstances attending the
execution of the deed and about the alteration, and that he
must have known at the time that he was making a conveyance
of 200-feet easement to the company. Moreover, the
condemnation proceedings, of which he certainly had
knowledge, related to a 200-feet right of way, and so did the
release which he gave to the company for damages. The
conclusion is irresistible that the plaintiff knew that the
railroad company was attempting to procure a 200-feet right
of way, not only through his homestead, but also
through the other two quarter sections of land; indeed, he so
testified; and, that as to said homestead he is now estopped
by his deed to claim otherwise.
"That
the company obtained a 200-feet right of way through the
other two quarter sections of land is not so clear. In
Trester v. Missouri P. R. Co., 33 Neb. 171, 49 N.W.
1110, it was held that a petition for the appointment of
freeholders to assess damages should state, among other
things, the names of the landowners, if known, a description
of the land over which the railroad is located, the width
required for right of way purposes, and that the landowner
refuses to grant a right of way through his premises. The
petition filed in the condemnation proceedings in question
did not state the names of the owners of the lands over which
the railroad had been located, or recite that the owners were
unknown, or allege that they had refused to grant a right of
way over their premises. Plaintiff contends that these
omissions render the petition jurisdictionally defective, and
that therefore all of the proceedings based thereon are void.
While the petition does not allege that the owners of said
two quarter sections of land were unknown, the proceeding was
evidently begun by the company and heard by the court on that
assumption. The published notice described them as unknown
owners, and that is sufficient proof of the fact, which has
passed unchallenged for 34 years. If the names of the owners
were unknown, it is manifest that they could not have been
inserted in the petition, and that the rule laid down by the
case of Trester v. Missouri P. R. Co.,
supra, was not intended to be applicable to
such a case as this. An allegation that the names of the
owners of the lands were unknown was a proper one, and it
ought to have been
put into the petition, but its omission was not fatal to the
jurisdiction of the county court. So, too, the omission of an
allegation that the owners had refused to grant a right of
way over their premises is immaterial; for, after a studious
consideration of the statutes, and for what
seems to be the better reasoning, and in the absence, too, of
authorities to the contrary, we are of the opinion that in
cases of nonresidents it is not essential to the jurisdiction
of the county court that a railroad company should allege in
its application for the appointment of commissioners that it
had first tried to obtain a right of way by agreement with
the owners of the lands over which its railroad was located.
Under this view of the law the application aforesaid was
sufficient to give the county court jurisdiction as to the
other two quarter sections of land, whose owners the evidence
shows were then nonresidents.
"The
notice served on nonresidents by publication was published in
a newspaper in Douglas county, and it was a legal notice, if
there were no newspaper then being published in Washington
county. Plaintiff claims that the burden of showing that
there was no newspaper published in Washington county at that
time rests upon the defendants, because they must prove a
valid condemnation proceeding. The fact that the notice was
published in another county, that the county court acted on
said notice, and that said notice has passed unchallenged for
nearly 35 years makes a prima facie case in
defendant's favor as to this issue, and in the absence of
testimony to the contrary warrants the court in holding that
said notice was properly published, and is valid.
"Plaintiff
also alleges that said condemnation proceedings were invalid
because of want of proof of payment of the damages awarded.
He admits that he received $ 500 for a right of way through
his homestead. J. A. Unthank testifies that he received from
the county court, for his nephew, the damages which were
awarded for a right of way over the northwest quarter of
section 18; and even if there be no evidence of his authority
to receive said damages, his testimony nevertheless proves
that they were paid into the county court. The county court
record has the word 'paid' written on the margin of
the page opposite the descriptions, northwest quarter of
section 17, and northwest quarter of section 18. This word
standing before the description, northwest
quarter of section 17, is verified by Mr. Unthank's
testimony; and if it is properly before the...
