St. Joseph & I. R. Co. v. Cudmore

• Decision Date: 23 February 1891
• Citation: St. Joseph & I. R. Co. v. Cudmore, 15 S.W. 535, 103 Mo. 634 (Mo. 1891)
• Writing for the Court: Barclay
• Parties: ST. JOSEPH & I. R. CO. v. CUDMORE et al.
• Court: Missouri Supreme Court

15 S.W. 535

103 Mo. 634

ST. JOSEPH & I. R. CO. v. CUDMORE et al.

Supreme Court of Missouri, Division No. 1.

February 23, 1891.

EMINENT DOMAIN — CONSTITUTIONAL LAW — VESTED RIGHTS.

1. Plaintiff railroad company was organized under Laws Mo. 1857 and 1866, which provides that, in proceedings to condemn land for railroad purposes, the amount of compensation to the landowner shall be ascertained by viewers appointed for that purpose. Const. Mo. 1875, art. 12, § 4, provides that "the exercise of the power and right of eminent domain shall never be so construed or abridged as to prevent the taking by the general assembly of the property and franchises of incorporated companies already organized, or that may be hereafter organized, and subjecting them to the public use, the same as that of individuals. The right of trial by jury shall be held inviolate in all trials of claims for compensation, when, in the exercise of said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right." Section 1 of the schedule of said constitution declares that "the provisions of all laws which are inconsistent with this constitution shall cease upon its adoption, except that all laws which are inconsistent with such provisions of this constitution as require legislation to enforce them, shall remain in force until the first day of July, 1877, unless sooner amended or repealed." Held, in proceedings begun by plaintiff in 1885 to condemn a right of way through defendants' land, that defendants were entitled to have the amount of their compensation ascertained by a jury.

2. Such constitutional provision does not, by the change of procedure, impair any vested charter right of plaintiff.

Appeal from circuit court, Buchanan county; JOSEPH P. GRUBB, Special Judge.

L. S. Brown, for appellant. Vories & Vories, for respondent.

BARCLAY, J.

This is a proceeding begun in 1885 to condemn a right of way for railroad purposes over land of defendants. The trial court ruled that the latter were entitled to an assessment by a jury of their damages for the land taken. To this plaintiff excepted, claiming that under its charter the damages need not be assessed by jury. Conceding, for the purpose of this hearing, the claim of plaintiff that, by the special acts incorporating it in 1857 and 1866, it was authorized to appropriate the use of land, necessary for its railway, by means of condemnation proceedings in which no jury was demandable for the assessment of damages, the question then arises of the effect upon such legislation of the adoption in 1875 of the present state constitution, containing this provision: "The exercise of the power and right of eminent domain shall never be so construed or abridged as to prevent the taking, by the general assembly, of the property and franchises of incorporated companies already organized, or that may be hereafter organized, and subjecting them to the public use, the same as that of individuals. The right of trial by jury shall be held inviolate in all trials of claims for compensation when, in the exercise of said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right." Section 4, art. 12, Const. 1875. In another part of that instrument, "and to carry the same into complete effect," it is declared that "the provisions of all laws which are inconsistent with this constitution shall cease upon its adoption, except that all laws which are inconsistent with such provisions of this constitution, as require legislation to enforce them, shall remain in force until the first day of July, one thousand eight hundred and seventy-seven, unless sooner amended or repealed by the general assembly." Schedule, § 1, Const. 1875...