State v. Fort

• Decision Date: 24 February 1904
• Citation: 180 Mo. 97,79 S.W. 167
• Parties: STATE ex rel. HILLEMAN et al. v. FORT, Circuit Judge.
• Court: Missouri Supreme Court

79 S.W. 167

180 Mo. 97

STATE ex rel. HILLEMAN et al. v. FORT, Circuit Judge.

Supreme Court of Missouri.

February 24, 1904.

CONDEMNATION PROCEEDINGS—VACATION OF ASSESSMENT—RIGHT TO EXECUTION—ABANDONMENT OF PROCEEDINGS—TIME FOR TAKING.

1. Rev. St. 1899, § 1266, authorizes the appointment, in condemnation proceedings, of a board of three commissioners to assess damages, and provides that on the company's failure to pay the assessment payment may be enforced by execution. Section 1268 provides that the commissioners' report may be reviewed by the court, which may order a new appraisement to be made, at the request of either party, by a jury. An assessment was made by commissioners, which was set aside, and on the request of the railroad company instituting the proceedings another assessment was made by a jury. The court set aside the verdict as excessive, overruling the company's other assignments of error, and both parties appealed to the Supreme Court. Held, that the original assessment by the commissioners was no longer in existence, and could not be enforced by execution.

2. Rev. St. 1899, § 1266, provides for the appointment of commissioners to assess damages in condemnation proceedings, and enacts that their assessment may be enforced by execution, "unless the said company shall, within ten days from the return of such assessment, elect to abandon" the proceedings, such election to be evidenced by writing filed with the clerk of the court. Section 1268 provides for the filing of exceptions to the commissioners' report, which may thereupon be reviewed by the court, which is to make such order as justice may require, and which may order a new appraisement. This new appraisement, at the request of either party, is to be made by a jury, as in ordinary cases of inquiry of damages. Held, that the condemning party may abandon the proceedings not only within 10 days after the first assessment by the commissioners, but, where that is set aside, within 10 days after the subsequent assessments by commissioners or by a jury.

In Banc. Original proceedings in mandamus by the state, on the relation of Henry Hilleman and another, against J. L. Fort, as judge of the circuit court of Stoddard county. Peremptory writ denied.

Jno. A. Hope, for relators. Sam H. West and W. H. Miller, for respondent.

Statement.

FOX, J.

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 8, c. 12, Rev. St. 1899, in the circuit court of Scott county, to condemn 10.31 acres of land belonging to the relators—Henry Hilleman being the owner of the fee, and Charles Hilleman having a lease thereon for 99 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 $200 an acre for the land, and that the assessment by the commissioners of $1,300 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 $14,000. 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 10 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' motions 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 therefor, 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 asking the court to order the railroad to pay to them, or into court for them, the $13,000 assessed by the commissioners as aforesaid, with interest thereon from November 9, 1902, and for the purpose of enforcing the same asked that executions issue against the railroad to the sheriffs of Scott and Cape Girardeau counties, and for such further orders as would cause said award of the commissioners to be forthwith paid to defendants. The court overruled the motion on the same day. Thereafter, on September 23, 1903, the defendants obtained from one of the judges of this court an alternative writ of mandamus against the trial judge commanding him to show cause why he should not sustain the defendants' said motion for an execution and cause the thirteen thousand dollars (with interest) assessed by the commissioners to be immediately turned over to the defendants, and this is the question involved in this case.

Opinion.

Section 21 of article 2 of our Constitution provides that private property shall not be taken or damaged for public use without just compensation, and that "such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested." The parties have filed a stipulation herein that no money has been paid to the owners, or deposited in court for them, in payment of the commissioners' appraisement or the jury's verdict; that the railroad has never taken actual, physical possession of the land sought to be condemned, and has not in any way disturbed the relators in the possession and enjoyment of the property, other than by the exercise of the power of eminent domain, as is shown by the proceedings in the condemnation suit; and that the relators have not cultivated or otherwise used the premises since the filing of the commissioners' report on November 10, 1902. The Legislature, by article 7, c. 12, Rev. St. 1899, has conferred upon telegraph, telephone, gravel and plank and railroad companies, the right of eminent domain, and has enacted a code of procedure governing actions for condemnation of lands for such purposes. The general features of the act require a suit to be brought, and the landowner to be notified. The specific provisions of the act which are pertinent to this case are embodied in sections 1266, 1268, Rev. St. 1899, which are as follows:

"Sec. 1266. The court, or judge thereof in vacation, on being satisfied that due notice of the pendency of the petition has been given, shall appoint three disinterested commissioners, who shall be freeholders, resident of the county in which the real estate or a part thereof is situated, to assess the damages which the owners may severally sustain by reason of such appropriation, who, after having viewed the property, shall forthwith return, under oath, such assessment of damages to the clerk of such court, setting forth the amount of damages; and should more than one owner be included in the petition, then the damages allowed each shall be stated separately, together with a specific description of the property for which such damages are assessed, and the clerk shall file said report and record the same in the orderbook of the court; and thereupon such company shall pay to the said clerk the amount thus assessed, for the party in whose favor such damages have been assessed; and on...