Rothan v. St. Louis, O. H. & C. Ry. Co.

• Decision Date: 28 November 1892
• Court: Missouri Supreme Court
• Parties: ROTHAN et al. v. ST. LOUIS, O. H. & C. RY. CO. et al.

20 S.W. 892

113 Mo. 132

ROTHAN et al. v. ST. LOUIS, O. H. & C. RY. CO. et al.

Supreme Court of Missouri, Division No. 1.

November 28, 1892.

EMINENT DOMAIN — CONSTITUTIONAL LAW — PAYMENT OF COMPENSATION — TRIAL BY JURY.

1. Rev. St. 1879, §§ 894, 896, which authorize the appointment of commissioners to assess damages for land condemned, allow the landowner to have such damages reassessed by a jury, and provide that the petitioner, on paying into court the damages as assessed by the commissioners, may take possession of the land, the subsequent proceedings only affecting the amount of compensation to be paid, do not conflict with Const. 1875, art. 2, § 21, which declares that private property shall not be taken or damaged for public use without just compensation, to be ascertained by a jury or by commissioners in such manner as may be prescribed by law, and that, until the same shall

be paid, the property shall not be disturbed. St. Louis, etc., R. Co. v. Evans & Howard, etc., Co., 85 Mo. 307, followed.

2. Nor does said statute conflict with Const. 1875, art. 12, § 4, which declares that "the right of trial by jury shall be held inviolate in all trials for compensation where, in the exercise of said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right.

Appeal from St. Louis circuit court.

Action by Isaac L. Rothan and others, against the St. Louis, Oak Hill & Carondelet Railway Company and another. Defendants obtained judgment on demurrer to the amended petition. Plaintiffs appeal. Affirmed.

David Goldsmith, for appellants.

The constitution prohibits disturbance of the possession of private property by virtue of the exercise of the right of eminent domain until the compensation therefor has been ascertained by a jury, and paid to the owner, or into court. Railway Co. v. Story, 96 Mo. 619, 620, 10 S. W. Rep. 203; Railway Co. v. Cudmore, 103 Mo. 638, 15 S. W. Rep. 535; Chicago, M. & St. P. Ry. Co. v. Randolph Town Site Co., 103 Mo. 469, 470, 15 S. W. Rep. 437; Railway Co. v. Shambaugh, (Mo.Sup.) 17 S. W. Rep. 581; Railway Co. v. Miller, Id. 499; Ring v. Bridge Co., 57 Mo. 498; Bradley v. Railroad Co., 91 Mo. 501, 4 S. W. Rep. 427; Wagner v. Railway Co., 38 Ohio St. 36; People v. McRoberts, 62 Ill. 38; Kine v. Defenbaugh, 64 Ill. 293; Mitchell v. Railroad, etc., Co., 68 Ill. 289; Chambers v. Railroad Co., 69 Ga. 320.

H. S. Priest and H. G. Herbel, for respondents.

BLACK, J.

This was a suit to restrain the defendants from entering upon and constructing a railroad over a tract of land owned by the plaintiffs. The circuit court sustained a demurrer to the amended petition, and the plaintiffs appealed from a judgment entered thereon.

There are many things stated in the amended petition which are irrelevant to any question of law raised on this appeal, and which need not be mentioned. This suit was commenced on the 11th of March, 1887. According to the amended petition, which was filed in October, 1888, the Oak Hill & Carondelet Railway Company is a corporation organized under the general laws of this state, with power to construct a railroad between designated points in the city of St. Louis. The other defendant, the Fruin-Bambrick Construction Company, had a contract with the railroad company for the construction of the road. On the 8th October, 1886, the railroad company commenced proceedings to condemn a right of way over various parcels of land, and, among others, over a tract of 24 acres owned by the plaintiffs. Commissioners to assess damages were appointed under the statute, and they made report to the circuit court on the 22d November, 1886. It does not appear what amount they allowed the plaintiffs, but it is alleged that the railroad company, on the same day, paid the amount awarded to the plaintiffs into court. On the 2d December, 1886, after the report had been filed and notice thereof had been given to the plaintiffs, they filed exceptions thereto, one of the exceptions being that the damages had not been assessed by a jury. The exceptions were sustained, and the report of the commissioners set aside, and a new appraisement awarded on the 27th of the last-named month. At the time of filing the amended petition in this case there had been no other or further assessment of damages. The amended petition states further that the defendants entered upon said land and built a fence over and across the same, and were threatening and about to construct the railroad thereon, at the time this suit was commenced, the 11th March, 1887; that, after the institution of this suit, the defendants entered and constructed the railroad on and over the land. The amended petition prays for a mandatory injunction.

From this statement of the facts it will be seen that it does not appear whether the railroad company entered upon the land before or after the court set aside the commissioners' report and awarded a new appraisement. But it does appear that the company paid into court for the plaintiffs the amount of the award on the very day that the report was filed. Having done this, the company insists that it had a right to enter upon the land and proceed with its work, and that the subsequent setting aside of the award made by the commissioners did not affect this right. On the other hand, the plaintiffs insist that the company had no right to enter until the compensation to be paid for the land was fixed by the verdict of a jury, and until the compensation thus fixed was paid to plaintiffs, or into court for them. Section 894, Rev. St. 1879, gives the circuit court, or the judge thereof in vacation, power to appoint commissioners to assess damages, the property owners being first served with summons; and makes it the duty of the commissioners to view the property, assess the damages, and make report thereof to the court; "and thereupon the said company shall pay to the said clerk the amount thus assessed for the party in whose favor such damages have been assessed, and on making such payment it shall be lawful for such company to hold the interest in the property so appropriated for the uses aforesaid." Section 896 provides that this report may be reviewed upon exceptions filed within 10 days after notice of the filing of the same, and then goes on to say: "And the court shall make such order thereon as right and justice may require, and may order a new appraisement, upon good cause shown. Such new appraisement shall, at the request of either party, be made by a jury, under the supervision of the court, as in ordinary cases of inquiry of damages; but, notwithstanding such exceptions, such company may proceed to * * * construct said road or railroad, and any subsequent proceedings shall only affect the amount of compensation to be allowed." The statute itself is free from difficulty or doubt. By its plain terms the condemning company may pay the amount awarded by the commissioners into court, and, upon making such payment, the company may enter into possession and proceed to construct the road. The amount awarded by the commissioners being paid into court for the landowner, the fact that exceptions are filed by either party and allowed, or even a jury trial awarded, can only affect the amount of the compensation, and does not deprive the company of the right still to proceed with the work.

The first question which we have to determine is, therefore, whether the statute violates the constitution in so far as it allows the condemning company to take possession before the amount of compensation is finally fixed and settled; and the first inquiry is whether it is, in this respect, in conflict with section 21 of article 2 of the constitution of 1875, which declares "that private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner therein divested." It is to be observed, in the first place, that this provision is emphatic in two respects: First, the compensation must be ascertained, either by a jury or a board of commissioners of not less than three freeholders; and, second, the compensation thus ascertained must be paid to the owner, or into court for him, before the condemning company can take possession. But this section does not guaranty to either party the right to a jury trial. The legislature is left free to prescribe either method of fixing the compensation, and it is left free to prescribe the mode of procedure. There being no other constitutional limitations, the legislature would have the power to make the commissioners' report final, or to give a jury trial in the first instance, and make the verdict final. It has, however, seen fit to allow either party to file...