Southern Ry. Co v. Gregg

• Decision Date: 12 March 1903
• Parties: SOUTHERN RY. CO. v. GREGG.
• Court: Virginia Supreme Court

43 S.E. 570

101 Va. 308

SOUTHERN RY. CO.

v.GREGG.

Supreme Court of Appeals of Virginia.

March 12. 1903.

EMINENT DOMAIN — RAILROADS — RIGHTS OP WAY—TITLE—ACQUISITION — AWARD — PAYMENT—PRESUMPTION—LAPSE OF TIME—CONDITION PRECEDENT—LIEN—ENFORCEMENT-WAIVER — LACHES — SALE OF RAILROAD PROPERTY—LIABILITY OF PURCHASER—EVIDENCE—RECORDS.

1. Under Code, § 1079, providing that in condemnation proceedings the sum due for land taken may be paid to the person entitled thereto or into court, and that on such payment the title to the land taken shall be absolutely vested in the petitioner in fee, the payment of the award is a condition precedent to the devesting of the owner's title. *

2. Where the award for land taken in condemnation proceedings was not paid by the petitioner, who entered and subjected the land to the use intended, the owner had a lien on the property condemned for the amount of the award, enforceable in equity.

3. In a suit to enforce a landowner's equitable lien for the award for land taken for a railroad right of way, evidence held to repel a presumption of payment from lapse of time.

4. Where it was alleged that a landowner had waived his equitable lien on land taken for a railroad right of way by permitting the company to construct its line on the land before payment of the award, such waiver was complete when the line was constructed, and was not affected by mere lapse of time.

5. Where an owner of land was awarded judgment in condemnation proceedings for a railroad right of way. at a time when he was in the employ of the railroad and in easy circumstances, but when the railroad company was under financial embarrassment, and several times thereafter the owner requested payment of the award from the railroad company and its successor, the fact that he permitted the initial company to construct its line on the land without payment of the award did not constitute a waiver of his equitable lien on the land for the payment of the award.

6. Where, in a suit to enforce an award for land taken for a railroad right of way, the question of payment was not put in issue, and plaintiff's evidence that the claim had never been paid was not denied, and plaintiff's demand had been continuously asserted and acknowledged both by defendant and its predecessor, the defense of laches was not applicable thereto.

7. Where a landowner whose land had been taken for a railroad right of way in condemnation proceedings was not a party to a lien creditors' suit against the railroad company in which the company's assets were sold, and such owner had no notice as to where the suit was pending or of the taking of the account, and only casually heard or read that the company's property was to be sold, he was not bound thereby, and evidence of the record in such suit was inadmissible in an action against the purchaser to enforce the award for the land taken.

Appeal from circuit court, Loudoun county.

Suit by one Gregg against the Southern Railway Company to declare and enforce a lien for the value of land condemned for a railroad right of way. Prom a judgment in favor of plaintiff, defendant appeals. Affirmed.

Wm. H. Payne, C. P. Janney, and John Janney, for appellant.

Edward Nicols and E E. Garrett, for appellee.

WHITTLE, J. There is practically no controversy in respect to the facts involved in this appeal. It appears that in the year 1869 the Alexandria, Loudoun & Hampshire Railroad Company instituted proceedings in the county court of Loudoun county to condemn certain lands situated therein upon which its proposed road was to be located. In September, 1870, the commissioners appointed for that purpose reported that the lands of appellee, Gregg, proposed to be taken by the company for its purposes contained 3 acres, 3 roods, and 7 poles, and ascertained that $296.09 would be a just compensation therefor. The report was confirmed February 14, 1871, on motion of the Washington & Ohio Railroad Company, the successor of the Alexandria, Loudoun & Hampshire Railroad Company, but was not recorded in the clerk's office until February 11, 1895. The new company succeeded to all the rights of the original company, and in the year 1874, without having paid the compensation allowed by the commissioners either to appellee or into court, entered upon the land in controversy and proceeded to construct its road thereon. The company took possession of the land without asking or obtaining the permission of appellee, but he interposed no objection to the entry.

It further appears that appellee has never received any compensation for the property taken by the company, and did not intend to waive his rights by tacitly permitting it to take possession of his land. On the contrary, he from time to time made demand upon the superintendents of the various companies for payment of the amount which had been allowed him. These officials admitted that the claim was justly due, and promised to settle it, but never did so. The last demand was made on the superintendent of the Southern Railway Company only a year or two before the commencement of this suit, but it does not appear that he acknowledged liability on the part of that company.

While the authority of these officers to bind their respective companies was not proved, they nevertheless promised to pay the damages, and that circumstance at least shows that appellee did not intend to waive his rights.

Appellee was in the employment of the Washington & Ohio Railroad Company and its successors, as depot agent, from the timethe company first commenced to do business until November, 1899. He had a small family dependent on him for support, and was in easy circumstances, while the company, on the contrary, was in great financial stress. About the year 1877 a lien creditors' suit was instituted against it, and the road was subsequently sold, and reorganized under the name of the "Washington & Western Railroad." The last-named company having made default in the payment of the purchase money, the property was again sold, and the company reorganized as the "Washington, Ohio & Western Railroad." That company mortgaged the road, and operated it until the year 1894, when the property was conveyed to appellant, the Southern Railway Company.

Appellee was not made a party to the lien creditors' suit, and was not called on to report his claim therein. He did not even know in what court the suit was pending, but heard or read in a newspaper that the road had been decreed to be sold.

In the year 1900 appellee filed a bill In equity in the circuit court of Loudoun county against appellant and others, to subject the land in controversy to sale for the satisfaction of the compensation allowed him by the commissioners in the condemnation proceedings, to wit, the sum of $296.09, with interest thereon from July 1, 1874.

There was a demurrer to the bill, and also two pleas of the statute of limitations, the one setting up a limitation of three years, and the other a limitation of five years, in bar of a recovery.

In its answer the Southern Railway Company avers that it is not advised whether the amount claimed by appellee was ever paid; but insists that at the date of its purchase it found those under whom it claims in possession of the land, and presumed, and had a right to presume, that the law had been complied with, and that possession had been transferred from appellee to them by virtue of payment of the compensation allowed; but that, if said damages have not been paid, appellee has waived his right to the same against appellant, a purchaser for value and without notice.

It further denies that appellee has a vendor's lien, or a lien in the nature of a vendor's lien, on the land for the amount of his demand. And it insists that, if all the allegations of the bill are true, appellee's claim amounts to a mere personal right of action against the Washington & Ohio Railroad Company.

The answer also relies on the presumption of payment from lapse of time, and laches. The deposition of appellee was taken, and at the hearing the circuit court overruled the demurrer and the two pleas of the statute of limitations, and established the demand of appellee as a Hen on the land in controversy. The last decree in the case provides for a sale of the land, unless the lien, with interest and costs, is paid within 60 days. To these decrees an appeal was allowed by one of the judges of this court.

It is conceded that the statute of limitations has no application to appellee's demand, and that there was no error in the action of the court in overruling the pleas which interposed that defense.

On the demurrer the contention is that appellee has no lien on the land in controversy, and for that reason a court of equity is without jurisdiction in the premises, and the demurrer ought to have been sustained. The soundness of that contention will be considered in connection with the merits of the case.

In the condemnation proceedings the appellee bore the relation of an enforced vendor to appellant's predecessor in title, the Washington & Ohio Railroad Company, and their respective rights in regard to the property must be determined in the light of the acknowledged principle of universal law that private property cannot be taken for public use without just compensation (2 Kent's Com. 339), and of the statutory enactment regulating such proceedings, found in section 1079 of the present Code, that "the sum so ascertained to be a just compensation may be paid to the person entitled thereto or in court.

"Upon such payment the title to the part of the land for which such compensation is allowed shall be absolutely vested in the company * * * in fee...