State ex rel. Volunteer Min. Co. v. Mchatton

• Decision Date: 20 December 1894
• Citation: 15 Mont. 159
• Parties: STATE ex rel. VOLUNTEER MIN. CO. v. McHATTON, Judge.
• Court: Montana Supreme Court

15 Mont. 159

STATE ex rel. VOLUNTEER MIN. CO.

v.McHATTON, Judge.

Supreme Court of Montana.

Dec. 20, 1894.

Certiorari by the Volunteer Mining Company to John J. McHatton, Judge of the Second judicial district, to review an order made by said judge in a proceeding to condemn land. Order affirmed.

F. T. McBride and John B. Clayberg, for relator.

W. W. Dixon and M. Kirkpatrick, for respondent.

PER CURIAM.

Condemnation proceedings were instituted by the Butte, Anaconda & Pacific Railway Company, in the district court of Silver Bow county, pursuant to the provisions of title 15, Code Civ. Proc. to acquire title by condemnation to a right of way for its railroad upon and across a certain mining claim, known as the “Volunteer Lode Claim,” situate in said county, owned and in possession of relator; and therein the court duly appointed three commissioners, qualified as provided by statute, to ascertain and determine the amount of damage sustained by reason of such right of way. Code Civ. Proc. § 607. Thereupon the commissioners appointed performed their duties in that behalf, and awarded to relator the sum of $6,400 as damages for such right of way, whereupon said railroad company deposited in court said sum, and applied to the court for an order allowing it to go into possession and use of said right of way pending any further proceedings which might be involved in said condemnation case. About the same time, relator, by the notice in such cases provided, appealed from said award (section 608, Code Civ. Proc.), and resisted the granting of an order allowing the railway company possession and use of said right of way pending the final determination of the proceeding. The court, however, upon hearing and consideration of the law and facts, granted the order allowing the railway company temporary possession pending the final determination of said proceeding. There being no appeal from said order, relator, by writ of certiorari, brought up to this court said proceeding, and especially the order granting said railway company temporary possession, for review.

Relator insists that the district court exceeded its jurisdiction, in allowing said railway company possession of the ground proposed to be taken and appropriated for such right of way, previous to the final determination, and deposit of the amount awarded as damages, because section 14 of article 3 of the constitution of this state provides that “private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for, the owner.” This is the pivotal point of contention. The view insisted on by relator is that no just compensation has been ascertained and deposited in this case, because its appeal has, in effect, abrogated and set aside the commissioners' award, and leaves the payment of said $6,400 into court as a fact without vital force, and it is not a compliance with the exaction of the constitution in such a case. Upon mature consideration of this question, and the authorities relating thereto, we are unable to concur in relator's view. The...