St. Joseph Terminal R. Co. v. Hannibal & St. Joseph R. Co.

Decision Date06 February 1888
Citation6 S.W. 691,94 Mo. 535
PartiesThe St. Joseph Terminal Railroad Company v. The Hannibal & St. Joseph Railroad Company et al., Appellants
CourtMissouri Supreme Court

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Special Judge.

Appeal dismissed.

Strong & Mosman and Huston & Parrish for appellants.

(1) It must be borne in mind that the courts apply the strictest rules of construction in ascertaining the rights of parties in proceeding under a statute delegating the power of eminent domain. Corporations take nothing as against the king, the state, or the public, by implication. City v Railroad, 13 Mo.App. 530; Railroad v. Marion Co., 36 Mo. 303. Everything is essential which the law has said should be done, before this high prerogative right can be carried out and enforced. Leslie case, 47 Mo. 477; Anderson v. City, 47 Mo. 484-5; Shaffner v City, 31 Mo. 272; Cunningham v. Railroad, 61 Mo. 35-6. (2) A statute purporting to confer the power of condemning lands upon corporations incorporated under the laws of the state, is clearly not intended to apply to self-constituted corporations having no legal right to exist. Morawetz on Corp., sec. 768; Hopkins v. Railroad, 79 Mo. 100; In re Railroad, 72 N.Y. 245. (3) A corporation attempting to exercise the power of eminent domain is bound to show affirmatively, that it is invested with the right to exercise the power. (4) Not only must it show that it is invested with the power of eminent domain but, also, that it is authorized to make use of this power to condemn lands for the particular use which it proposes to make of the lands it is seeking to obtain. Rensalaer v Davis, 43 N.Y. 146-7. (5) A corporation exercising this power, must show whether it does so in virtue of an express grant authorizing it to appropriate the particular land described, or only by force of a grant in general terms, clothing it and all similar corporations with the same power. (6) The property of a railroad corporation is, doubtless, subject, generally speaking, to the power of eminent domain. But the law has thrown around the property of a railroad corporation that is devoted to a public use, a protection, as against the exercise of this power, which does not exist in favor of property not devoted to such uses. In re City of Buffalo, 68 N.Y. 167; Bridgeport v. Railroad, 36 Conn. 265; In re Railroad, 53 N.Y. 574; Railroad v. Trustees, 43 Ill. 303; State v. Mont Clair, 35 N. J. L. 328; Railroad v. Railroad, 11 West. Rep. 133; Railroad's Appeal, 93 Pa. St. 150; Railroad v. Railroad, 124 Mass. 368. (7) A statute which, in general terms, vests in all corporations that may be formed under the general laws of the state the power to exercise the right of eminent domain, will not authorize such corporations to exercise this power in order to appropriate lands already devoted to a prior public use. Commonwealth v. Railroad, 14 Gray, 95; Railroad v. Railroad, 124 Mass. 372. (8) An exception to this rule is recognized where there is a necessity for such an appropriation, and the appropriation is only partial, and only results in mere inconvenience to the public enjoying the prior use, and the person or corporation operating and owning the same, without substantial damages flowing therefrom, but the necessity which justifies this appropriation must be a necessity so absolute, that, without it, the grant itself would be defeated. Railroad's Appeal, 93 Pa. St. 150; Railroad v. Railroad, 124 Mass. 370; Railroad v. Trustees, 43 Ill. 307; Leslie v. City, 47 Mo. 477; Anderson v. City, 47 Mo. 484. (9) A corporation takes all of its powers upon the implied condition that it will make use of the same in a reasonable manner, and with due regard to the property rights and interests of others. St. Louis v. Weber, 44 Mo. 530; Railroad v. Church, 108 U.S. 331; Tinsman v. Railroad, 26 N. J. L. 148. (10) Under our statute, lands which belong to "any corporation," cannot be appropriated to public use by a railroad company when such appropriation, if effected, would materially interfere with the uses to which the corporation holding the property is authorized to put such property. R. S., 1879, sec. 899. (11) The doctrines announced in the preceding paragraphs give rise to the questions which must necessarily be presented to, and determined by, the court to which the petitioner presents the application for the appointment of commissioners. No good reason can be assigned why that court should not decide all questions arising upon such application. Boutelle v. Warne, 62 Mo. 350; Lake Shore case, 96 Ill. 125; Railroad v. Railroad, 11 West. 133; Matter of Buffalo, 68 N.Y. 167; Railroad v. Railroad, 10 Am. & Eng. Ry. Cas. 444; Rensalaer v. Railroad, 43 N.Y. 146-7; Railroad v. Cornell, 10 Am. & Eng. Ry. Cas. 110; Railroad v. State, 34 Minn. 227; Railroad v. Hemphill, 35 Miss. 17. (12) The judgment rendered is a final judgment of condemnation as to the property of these defendants, appropriating the same to respondent's use, and fully and finally determining, as against these defendants, the right of the respondent to take the same. This right could not again be called in question in the course of any subsequent proceedings. McCrary v. McCrary, 58 Mo. 447. (13) In all the states having similar statutes, it is uniformly held that the order condemning or appropriating property taken for a public use, is a final judgment from which an appeal will lie. Rensalaer v. Davis, 45 N.Y. 146-7; Matter of Railroad, 70 N.Y. 191; Railroad v. Kipp, 46 N.Y. 546; In re Railroad, 63 N.Y. 335; Railroad v. Hemphill, 35 Miss. 17; Railroad v. State, 34 Minn. 227; Railroad v. Cornell, 10 Am. and Eng. Ry. Cas. 110; S. C., 149 Wis. 162; Railroad v. Railroad, 10 Am. and Eng. Ry. Cas. 466; Evans v. Hoffner, 29 Mo. 151. (14) The fact that the court ignored the issue, refused to hear evidence, and gave judgment on the averments of the petition, alone, does not render said judgment void. Ferguson v. Sewall, 1 Mo. 256; Ervin v. Brady, 48 Mo. 561; Caskelman v. Relfe, 50 Mo. 587; Dilworth v. Rice, 48 Mo. 124; Maxwell v. Stewart, 22 Wallace, 79; Pickering v. Templeton, 2 Mo.App. 431. (15) As the court had jurisdiction of the subject-matter, and of the person of the defendants, no matter how erroneous or irregular the decision of the court may be, such judgment must be regarded as valid and binding until reversed or annulled by suitable proceedings, and the remedy by injunction is not available to defendants. Johnston v. Beasley, 65 Mo. 264-5; Hotel Ass'n v. Parker, 58 Mo. 329; Railroad v. Railroad, 96 Ill. 125; Kelley v. Hurt, 74 Mo. 571; Evans v. Hoffner, 29 Mo. 148; Secombe v. Railroad, 23 Wall. 118.

Ramey & Brown for respondent.

(1) The order appointing commissioners did not constitute a final judgment or decision of the court, but left the cause still pending. From such an order an appeal will not lie. R. S., sec. 3710; Davis v. Perry, 46 Mo. 449; Anderson v. Moberly, 46 Mo. 191; Jones v. Snodgrass, 54 Mo. 597; Ferguson v. Ferguson, 36 Mo. 197; How v. State, 9 Mo. 690; Tanner v. Irwin, 1 Mo. 65; Harrison v. Rush, 15 Mo. 175; Railroad v. Fire Brick Co., 85 Mo. 307; Railroad v. Railroad, 28 Kas. 453; Richard v. Railroad, 18 Iowa 260. (2) The appellants have ample remedy to prevent the appropriation of their property in violation of law, in a direct proceeding for that purpose. Burns v. Railroad, 9 Wis. 420, 425; Stringham v. Railroad, 33 Wis. 471; 1 Rorer on Railroads, 293, 304, 434.

Black J. Sherwood, J., absent.

OPINION

Black, J.

The plaintiff, a railroad corporation organized under the laws of this state, commenced these proceedings in the circuit court of Buchanan county to condemn property of divers persons and corporations for a right of way. The defendants, The Hannibal & St. Joseph Railroad Company and The Kansas City, St. Joseph & Council Bluffs Railroad Company, appeared pursuant to notice, and made numerous objections. They first insisted that Mr. Woodson, who was presiding and holding the court as special judge, had no warrant or authority in law to hold the court; that his election as a special judge by the members of the bar was illegal for various reasons. These objections being overruled, these defendants then filed their plea, stating that there were other persons interested in the property owned by them, who should be made defendants, and asking that they be brought in; and also setting up various reasons why their property should not be condemned or subjected to plaintiff's use. The defendants offered, but were denied the right, to make proof of the matters set up in this plea. Without any hearing of the matters thus presented, and upon the showing made by the petition alone, the court appointed commissioners to assess damages; and thereupon these defendants filed a motion for a rehearing, which was overruled. They then filed their bill of exceptions, and prayed an appeal; the appeal was denied by the circuit court, but allowed by one of the judges of this court.

The case is now before us on the motion of the plaintiff to dismiss the appeal, because there was no final order or judgment in the case from which an appeal could be taken. These proceedings are prosecuted under article 6, of chapter 21, Revised Statutes of 1879. The procedure there pointed out is, in substance, as follows: The plaintiff must present a petition to the circuit court, or to the judge thereof in vacation. Summons is then issued, giving the owner at least ten days notice "of the time when said petition will be heard." The court, or judge in vacation, being satisfied that notice has been given, "shall appoint three commissioners" to assess the damages. They are to view the property, and return, under oath, their assessment of damages to the clerk of the court. The...

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    • Missouri Supreme Court
    • 11 Noviembre 1896
    ...that the case had not been finally disposed of by the trial court when the appeal was taken. R. S. 1889, secs. 2246, 4542, 5500; Railroad v. Railroad, 94 Mo. 535; on Judgments, sec. 24; Freeman on Judgments [4 Ed.], secs. 29, 34; Runnels v. Wash. Univ., 96 Mo. 230; Railroad v. Berger, 32 Mo......

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