State ex rel. Evens & Howard Fire Brick Co. v. Lubke

• Decision Date: 12 February 1884
• Court: Missouri Court of Appeals
• Parties: STATE OF MISSOURI EX REL. EVENS & HOWARD FIRE BRICK COMPANY v. GEORGE W. LUBKE ET AL., Respondents.

15 Mo.App. 152

STATE OF MISSOURI EX REL. EVENS & HOWARD FIRE BRICK COMPANY

v.GEORGE W. LUBKE ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Feb. 12, 1884.

APPLICATION for Mandamus.

Petition dismissed.

DYER, LEE & ELLIS, for the relator: The payment of the award under the statute is an actual payment to the owner when it is paid into court for his use.-- Cooley Const. Lim. 702; Chambers v. Railroad, 10 Am. & Eng. R. Y. Cas. 376. And he may compel its payment to him by the clerk by mandamus.--Van Norman v. Jackson, 45 Mich. 204; Virginia v. Rivers, 100 U. S. 323; Freemont v. Crippen, 10 Cal. 211; High on Mandamus, sect. 17.

NOBLE & ORRICK, for the respondent: The payment into court is a deposit, and pending exceptions to the award the company may proceed to build the road, the fund to remain in court.--Rev. Stats., sect. 896; The State v. Dickson, 3 Mo. App. 467. Mandamus does not lie to compel the payment to the land-owner pending an appeal. High on Mandamus, sects. 156, 176, 177; The State v. Engelman, 45 Mo. 27.

THOMPSON, J., delivered the opinion of the court.

This is an original application for a mandamus against one of the judges of the circuit court and the clerk thereof to compel the judge to order, and the clerk to make, payment to the relator of the sum of $50,000, which was deposited with the clerk by the St. Louis and San Francisco Railway Company in a proceeding by such company to condemn certain land of the relator for a right of way of such company, as hereafter stated. The questions which we have to consider arise on a demurrer to the return, and a motion for judgment on the return, made by the relator. The respondents, the judge and clerk of the circuit court, in their return exhibit to the court a transcript of the entire proceedings in the condemnation case; and, by a stipulation of the parties, this transcript is to be considered as a part of the return; so that we have on this demurrer and and motion for judgment, the case before us for disposition on its merits.

The facts thus disclosed are as follows: On the 8th of June, 1883, the St. Louis and San Francisco Railway Company, having, under various franchises of which it had become the proprietor, the right to build a railway between the Mississippi River in St. Louis and the town of Pacific, in Franklin County, filed its petition in the circuit court, setting forth that it was necessary, in constructing such road, to appropriate a certain parcel of land, the property of this relator, which is a manufacturing corporation, one hundred feet in width, and containing two and thirty-three one-hundreth acres, within the city of St. Louis, and praying for the appointment of commissioners. Summons having been served upon this relator, and upon Austin R. Moore, trustee, the court on July 6, 1883, appointed Howard A. Blossom, Thos. W. McManus, and Richard D. Lancaster, as such commissioners. These commissioners, having taken the oath prescribed by law, thereafter, on the 22d day of August, 1883, filed two reports, a majority report and a minority report. A majority of the commissioners, Mr. Blossom and Mr. McManus, assessed the value of the land of this relator, which the railway company sought to appropriate, at the sum of $50,000. The other commissioner, Mr. Lancaster, assessed the same at the sum of $4,000. Thereafter, on the 23d day of August, 1883, the clerk issued a written notice to this relator, and also to Austin R. Moore, trustee, of the filing of this report. This notice was, on the 27th day of August, 1883, served by the sheriff upon this relator, and also upon Austin R. Moore, trustee, and return thereof was, on the 4th day of September, 1883, made to the court. Thereafter, on the 30th day of August, 1883 the railway company, according to the recitals in the bill, of exceptions, “paid to Charles F. Vogel, clerk of the court, the sum of $75,900, $50,000 thereof being the amount of the award by a majority of the commissioners, as damages assessed in favor of the Evens & Howard Fire Brick Company.” The remaining $25,900 was the amount assessed in favor of the Missouri Fire Brick and Clay Company, another land-owner in the same proceeding. On the same day on which it paid this sum of money into the hands of the clerk, the railway company filed exceptions to the report of the majority of the commissioners, the grounds of which need not be stated, further than to say that they present for determination certain questions both of fact and law. Thereafter, on the 17th of September, 1883, the railway company filed a motion asking the court to hear and determine its exceptions to the report of the commissioners, before such report should be confirmed, or before any order to pay over such sum of $50,000 to this relator should be made.

In connection with this motion, the bill of exceptions in the record in the condemnation proceedings contains the following recitals: “And on the same day said motion came on to be heard, and the plaintiff, in open court, admitted that since the making by it to the clerk of this court of the payment aforesaid, and in virtue of the payment for the defendant, the Evens & Howard Fire Brick Company, and the proceedings in this cause, it had taken possession of the property of the Evens & Howard Fire Brick Company decribed in plaintiff's petition, and in said report of commissioners, and that it was now in actual possession thereof. Whereupon the court then and there overruled said motion; to which ruling of the court the said plaintiff then and there excepted at the time. And thereupon the court, of its own motion, upon the admission of plaintiff aforesaid, struck out said exceptions of plaintiff, to which ruling of the court in striking out said exceptions, the plaintiff then and there excepted at the time.”

Thereupon, on the same day, the Evens & Howard Fire Brick Company filed a motion, supported by affidavit, in the following language: “Now comes the Evens & Howard Fire Brick Company, defendant herein, and states to the court, that the amount of damages awarded this defendant by the commissioners herein, namely, the sum of fifty thousand dollars, has been paid into said court by the St. Louis and San Francisco Railway Company for said fire brick company. That thereupon said railway company entered upon, and are now in the possession of its right of way upon the land of said fire brick company, as prayed for in its petition filed herein. That this defendant has demanded the said sum of money from the clerk of this court, and payment thereof has been refused by said clerk; that under the constitution and laws of this state, this defendant is entitled to be paid said sum. Wherefore it is asked that the court make an order that said money be forthwith paid this defendant.” “The court, thereupon, against the objection of the plaintiff (the railway company), and upon its admission that it had taken possession of defendant's property, on said day sustained the said motion; to which ruling of the court, the plaintiff (the railway company) then and there at the time excepted.”

On the same day, the railway company filed a motion to set aside the order on the clerk to pay over to this relator, the Evens & Howard Fire Brick Company, this award of $50,000, and for a rehearing of said motion, for various reasons assigned, which need not be here set out. This motion came on to be heard on the same day, and was by the court overruled; to which ruling of the court the railway company then and there excepted. On the following day, September 18, 1883, the railway company filed a motion asking the court “to set aside this order herein on Charles F. Vogel, clerk of this court, to pay over to said Evens & Howard Fire Brick Company the sum of $50,000, being the amount awarded to said last named company by Howard A. Blossom and Thomas W. McManus, commissioners, as per their report filed in this cause, and to set aside the order striking out plaintiff's exceptions to the report of the commissioners herein, and to grant a rehearing in said cause,” for various reasons assigned, which need not here be set out. This motion on the same day came on to be heard by the court, and was overruled, the railway company duly excepting. On the following day, September 19, 1883, a bill of exceptions was signed, embracing the exceptions of the railway company to these various rulings against it, as already stated, which bill of exceptions is embodied in the record in the condemnation proceedings, which record, as already stated, is exhibited by the respondents as a part of their return, and is, by a stipulation of the parties, to be considered by this court as a part of said return.

Thereafter, the railway company prayed for an appeal “from the judgment and decision” in said cause, filing the statutory affidavit therefor, and the court granted the same. The railway company executed an appeal bond in the penal sum of $110,000.

We have been thus particular in setting out the facts and dates in the condemnation proceeding, using in several particulars the exact language of the record of that proceeding, in order that there may be no mistake or doubt as to the facts upon which our judgment in this mandamus proceeding is invoked.

It is important, next, to consider the state of the written law applicable to the condemnation of land by railroad companies. By sections 764 and 766 of the Revised Statutes, any number of persons, not less than five, may organize themselves into a railroad corporation, by complying with certain formalities and paying a certain license tax, without asking or obtaining the consent of the legislature or of any other public authority of the state. By the constitution of this state “any railroad corporation or association, organized for the purpose, shall have the right to construct and operate a railroad between any points within this state, and to connect at the state line with railroads of other states.” Const. Mo., Art. XII.,...