State ex rel. Hilleman v. Fort
| Decision Date | 24 February 1904 |
| Citation | 79 S.W. 167,180 Mo. 97 |
| Parties | THE STATE ex rel. HILLEMAN et al., v. FORT, Judge |
| Court | Missouri Supreme Court |
Peremptory writ denied.
John A Hope for relators.
(1) (a) No one, nor all, of the steps taken in the case of the railway company against relators, from the filing of its exceptions to the commissioners' report down to and including the proceedings of the recent September term of respondent's court, can affect the commissioners' award as the amount to which relators are entitled pending the litigation. Railroad v. Clark, 119 Mo. 373. (b) The fact that respondent, before beginning the jury trial caused an entry to be made, setting aside the commissioners' award, did not, and does not affect the standing and force of said award, as just compensation binding on both parties. In the language of this court "it is true the award of the commissioners was in this case set aside, but it was set aside for the purpose of allowing a new appraisement under the statute, and the fact that it was set aside for such purpose does not affect the conclusion before stated, because the same statute gives continued effect to the first award in this, that the condemning company can pay the amount thereof into court and proceed with the construction of the road." Rothan v. Railroad, 113 Mo. 138. (c) The obligation of the company to pay the award, as well as respondent's plain ministerial function, is fixed by the statute in terms so plain that there can be no possible doubt as to the meaning, viz.: "Thereupon the company shall pay to the said clerk the amount thus assessed, for the party in whose favor such damages have been assessed. . . . and upon failure to pay the assessment aforesaid the court may, upon motion and notice by the party entitled to such damages, enforce payment of the same by execution, unless said company shall, within ten days from the return of such assessment, elect to abandon the proposed appropriation of any parcel of land, by an instrument in writing to that effect, to be filed with the clerk of said court, and entered on the minutes of the court." Sec. 1266, R. S. 1899. (2) (a) Throughout all the proceedings in the case, in the circuit court, and in the Supreme Court, on any and every appeal, writ of error or other process, the commissioners' award stands, until the end, as the amount to which relators are entitled, and being entitled to that amount, they are likewise entitled to an execution to enforce its payment. Railroad v. Clark, 24 S.W. 157; State ex rel. v. Withrow, 24 S.W. 640. (b) The very act of the company in adopting relators' land as the ground on which to locate its tracks (particularly when such adoption was followed by the institution of a suit to condemn) was a taking and appropriation of the land, under the power of eminent domain, and relators became then and thereby vested with the right to just compensation, not only for damages already caused by the location and proceeding to acquire the land, but also for such damages as a subsequent actual entry and construction of the railroad on the land might cause and relators' rights having thus vested, the company could not abandon the suit to condemn nor deprive relators of the damages awarded. Railroad v. Railroad, 141 Pa. St. 415; Railroad v. Commonwealth, 101 Pa. St. 196; Beale v. Railroad, 86 Pa. St. 510; Neal v. Railroad, 31 Pa. St. 19; Railroad v. Miller, 125 Mass. 3; Harrington v. County Commissioners, 22 Pick. 264; St. Louis v. Hill, 116 Mo. 533; 1 Lewis, Em. Dom. (2 Ed.), sec. 56; Railroad v. Scott, 132 Ill. 78; Vandevere v. Kansas City, 107 Mo. 83; Railroad v. Fuller, 63 Tex. 467; Chicago v. Taylor, 125 U.S. 161; Boyd v. United States, 116 U.S. 635.
Sam H. West and W. H. Miller for respondent.
(1) Both sides having appealed from the respective rulings before the motion for execution was filed, the circuit court was without power to do other than overrule the motion or strike it from the files, either of which was equivalent to the other. State ex rel. v. Wood, 142 Mo. 127; State ex rel. v. Gates, 143 Mo. 63; Burgess v. O'Donohue, 90 Mo. 299; Foster v. Rucker, 26 Mo. 494; Bank v. Allen, 68 Mo. 474. (2) Rulings of an inferior court will not be controlled by mandamus when an appeal will lie. State ex rel. v. Welker, 85 Mo.App. 247; State ex rel. v. Field, 107 Mo. 445; State ex rel. v. Smith, 107 Mo. 527; State ex rel. v. Neville, 110 Mo. 345; State ex rel. v. Cape Girardeau County, 109 Mo. 248; Railroad v. St. Louis, 92 Mo. 160; State ex rel. v. Bollinger Co., 48 Mo. 475; State ex rel. v. Megown, 89 Mo. 156. The statute gives the relators a specific remedy by appeal, and when this is the case the extraordinary remedy by mandamus can not successfully be invoked. State ex rel. v. Lubke, 85 Mo. 338; Blecker v. Commissioners, 30 Mo. 111; State ex rel. v. Marshall, 82 Mo. 484; Mansfield v. Fuller, 50 Mo. 338; State ex rel. v. County Court, 39 Mo. 375. No discretionary power of the circuit court will be interfered with or controlled by mandamus. State ex rel. v. Jones, 155 Mo. 570; State ex rel. v. Talty, 166 Mo. 529. (3) Whether relators are entitled to an execution at all, either on the verdict of the jury or the original commissioners' report, depends now upon the action of this court on motion of the railroad company for leave to abandon the proceeding which is here pending on appeal, a proper supersedeas having been granted. If the railroad company is permitted to abandon, certainly relators can not have the money awarded by the commissioners or by the jury.
OPINIONIn Banc
Mandamus.
This controversy grows out of the following state of facts: On the 5th of May, 1902, the Gray's Point Terminal Railway Company, a Missouri railroad corporation, began a proceeding under article 7, of chapter 12, Revised Statutes 1899, in the circuit court of Scott county, to condemn ten and thirty-one hundredths acres of land belonging to the relators, Henry Hilleman being the owner of the fee, and Charles Hilleman having a lease thereon for ninety-nine years, for yard purposes of said railroad. The venue was afterwards changed to the circuit court of Stoddard county, of which court the respondent is the regularly elected and qualified judge. After some preliminary steps, the court appointed three commissioners to assess the damages which the defendants therein, the relators herein, would suffer by reason of the condemnation of their said land for such railroad purpose. On the 10th of November, 1902, the commissioners made their report and assessed the damages which Henry Hilleman, the owner of the fee, would suffer, at $ 13,000, but made no assessment of damages as to Charles Hilleman, the owner of the leasehold estate. On the 19th of November, 1902, the railroad company filed exceptions to the report of the commissioners, specifying as grounds therefor, first, that the assessment was void because it did not specify how much was granted to each of the defendants; second, that the assessment was so outrageous as to shock every idea of justice and fair dealing; third, that the assessment showed on its face that the commissioners acted without being informed or through a misconception of the facts or purely through bias and prejudice; fourth, that the defendants had never asked more than two hundred dollars an acre for the land, and that the assessment by the commissioners of thirteen hundred dollars an acre was in open defiance of justice and right. And, for these reasons, the railroad company asked the court to set aside the report and "either to appoint new commissioners or to grant it a trial by a constitutional jury." The report and exceptions were filed at the September term, 1902, but the court made no ruling on the exceptions at that term. At the following term, however, to-wit, on March 6, 1903, the court heard the exceptions and sustained them, and set aside and for naught held the report, and ordered a new appraisement to be made by a jury. Accordingly, a jury was summoned and the matter tried, resulting in a general assessment of damages in favor of the defendants for fourteen thousand dollars.
Thereupon on the same day, the railroad company filed, in open court, its election in writing, to abandon the proceedings, and the court ordered it spread on the minutes.
Thereafter, on March 9, 1903, the defendants filed a written agreement to apportion the damages between them, one-fourth to Henry Hilleman, and three-fourths to Charles Hilleman, and asked the court to make an order of apportionment between them in accordance therewith. On the same day, the defendants filed a motion to strike from the files the election to abandon the proceedings theretofore filed by the railroad, on the ground that it came too late, in that, it was not filed within ten days after the assessment by the commissioners. Nothing further was done in the case at the March term, 1903.
On the 17th of September, 1903, during the September term, 1903, the court sustained the defendants' motion to apportion the damages, and to strike from the files the railroad's election to abandon the proceedings, and denied to the railroad the right to abandon. The railroad saved exceptions to such rulings. On the same day, the railroad filed a motion for a rehearing as to the said rulings of the court, setting up nine grounds there-for, all of which related to the said rulings of the court, except the ninth which was that the assessment was excessive.
On the same day the court overruled the motion as to all the grounds except the ninth, and sustained it as to that.
Thereupon, both the railroad and the defendants appealed from said order of the court, and said cross appeals are now pending in this court.
Thereupon on the same day, the defendants filed a motion,...
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