State v. Withrow

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBrace
Citation24 S.W. 638
Decision Date23 November 1891
PartiesSTATE ex rel. HOLLADAY v. WITHROW, Judge.
24 S.W. 638
STATE ex rel. HOLLADAY
v.
WITHROW, Judge.
Supreme Court of Missouri, Division No. 1.
November 23, 1891.1

EMINENT DOMAIN — RIGHTS AND REMEDIES OF LANDOWNER — EXECUTION TO BRING DAMAGES INTO COURT — MANDAMUS — LACHES — LIMITATIONS.

1. In condemnation proceedings, in 1872, after the damages were assessed, and the assessment returned, the railroad company did not elect in writing, within 10 days, to abandon the appropriation of the land. Held, that the owner had a right to have the damages so assessed brought into court, and paid to the clerk for his use, before the taking of the land, or any other step in the proceedings, except the filing of exceptions to the report of the commissioners under Gen. St. 1865, c. 66.

2. Where the damages, as assessed, are not brought into court, the owner of the land has a right, on motion in such court, after notice to the railroad company, to the issuance of the execution for the amount of such damages;

[24 S.W. 639]

and where the company has taken possession of the land without bringing such damages into court the owner cannot be compelled to resort to any other remedy.

3. Mandamus is the appropriate remedy for the owner where the court refuses such execution, as section 3 should be construed to read "the court shall," instead of "the court may on motion after notice by the party entitled to such damages enforce the payment of the same by execution." Barclay, J., dissenting.

4. Such execution may issue against a railroad company which came into corporate existence after the assessment of damages was returned into court, where such railroad company subsequently substituted itself as party plaintiff in the condemnation proceedings with the consent of all parties.

5. The right of the landowner to move for the issuance of an execution to bring the amount of damages in condemnation, assessed by the commissioners, into court, is not a right of action against which the 10-years statute of limitations will run.

6. A railroad company filed exceptions to the commissioners' assessment of damages, took possession of the land, and failed to bring the proceedings to final judgment, so as to dispose of the exceptions. Held, that such company could not charge the landowner with laches in delaying 12 years before moving for the issuance of an execution to bring the damages into court, since the landowner was the only party injured by the delay.

Application by the state ex rel. Holladay for a writ of mandamus to James E. Withrow, judge of the St. Louis circuit court. Granted by the first division of the court.

Geo. A. Castleman, for relator. H. S. Priest, for defendant.

BRACE, J.


This case is at issue upon respondent's motion to quash the alternative writ, which may be taken as a demurrer to the petition. It appears from the petition that at the April term, 1872, of the St. Louis circuit court, condemnation proceedings were instituted by the Pacific Railroad Company against Leslie Garnett et al. for the purpose of securing a right of way for said road over certain lands in St. Louis county, of five several tracts of which, described in said proceedings, the petitioner was then, and is now, an owner. That petitioner was not named in the petition in that proceeding as owner of said tracts, but it was alleged upon information and belief that said tracts belonged to U. S. Grant; with a prayer that all unknown parties claiming an interest in said lands be made parties. That afterwards such unknown persons were made parties by notice duly published, commissioners were appointed, and damages assessed to the several tracts sought to be condemned. That afterwards, on the 27th of September, 1872, the commissioners made their report, assessing the damages to one of said tracts at the sum of $120, to one at $200, to one at $679, to one at $400, and to the other at $172.50, in favor of the rightful owners and occupants thereof, as they might be found to be, and naming the supposed owners; among others, the relator. That afterwards, in due course, the said Pacific Railroad Company filed its exceptions to the report of said commissioners, and afterwards, on the 2d day of December, 1872, filed its motion asking the court to assess the share of each owner of said property separately, in which it was alleged that the relator was the owner of the title in fee simple to some of the lands included in such assessment. That afterwards, on the 1st of July. 1878, the Missouri Pacific Railway Company was substituted as plaintiff in said condemnation proceedings, and all subsequent proceedings therein were had by and in the name of said Missouri Pacific Railway Company. That, subsequent to the filing of said commissioners' report, the plaintiff in said proceeding went into possession of the right of way sought to be condemned over said lands, constructed, and ever since has maintained, its railroad thereon. That no final judgment was ever rendered in said proceeding. That said cause of the Missouri Pacific Railway Company v. Leslie Garnett et al. is now pending in the circuit court of the city of St. Louis. That no part of the damages assessed as aforesaid has ever been paid to the relator, or to anybody else for his benefit, or into court, or at all. That on the 14th of June, 1890, after due notice, the relator filed in said court his motion in said cause, asking that execution issue against the said Missouri Pacific Railway Company for the damages severally assessed as aforesaid. That said motion coming on to be heard in said court on the 7th of January, 1891, before the respondent judge of said court, was by him overruled, and an execution denied as asked for by the relator; wherefore he prays this court for its writ of mandamus commanding the issue of such execution by the respondent. The counsel for the respondent assign several reasons why the writ should be denied, all of...

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5 practice notes
  • Kansas City v. Threshing Machine Co., No. 31452.
    • United States
    • United States State Supreme Court of Missouri
    • 18 Octubre 1935
    ...U.S. 549, 25 Sup. Ct. 329; 36 Cyc. 1160; 39 C.J. 1393, sec. 4; Steines v. Franklin County, 48 Mo. 178; State ex rel. Holladay v. Withrow, 24 S.W. 638; Cornell v. McAllister, 249 Pac. 961; State ex rel. Wyatt v. Ashbrook, 154 Mo. 375, 55 S.W. 629; Montgomery v. Henry, 1 L.R.A. 658; Village o......
  • Murphy v. Barron, No. 21909.
    • United States
    • United States State Supreme Court of Missouri
    • 30 Diciembre 1920
    ...brought into conflict with State ex rel. v. Fort, 180 Mo. loc. cit. 112 et seq., 79 S. W. 167, and an opinion in State ex rel. v. Withrow, 24 S. W. 638, which, though it is unofficial, is the expression of the view of four learned and eminent judges of this court, The true rule, so far as c......
  • Simpson v. Talbot
    • United States
    • Supreme Court of Arkansas
    • 6 Febrero 1904
    ...Ark. 77; 30 Ark. 640. Appellees cannot redeem. 71 S.W. 255. Appellant was not guilty of laches. 152 U.S. 413; 173 U.S. 131; 111 Ill. 328; 24 S.W. 638. Mere delay, not operating to the prejudice of the adverse party, is immaterial. 14 Ga. 238; 136 Mass. 273; 152 Mo. 398. The facts upon which......
  • Little River County v. Buron, 169
    • United States
    • Supreme Court of Arkansas
    • 13 Octubre 1924
    ...632; 29 N.E. 146; 75 N.Y.S. 976; 71 A.D. 351; 69 F. 671; 8 Kan. 623; 60 P. 1092; 128 Cal. 444; 82 Mass. 166; 56 N.E. 953; 184 Ill. 597; 24 S.W. 638; 42 Mo. 171; 55 Cal. 599. OPINION [165 Ark. 536] HART, J. V. E. Buron filed three claims in the county court of Little River County, Arkansas, ......
  • Request a trial to view additional results
5 cases
  • Kansas City v. Threshing Machine Co., No. 31452.
    • United States
    • United States State Supreme Court of Missouri
    • 18 Octubre 1935
    ...U.S. 549, 25 Sup. Ct. 329; 36 Cyc. 1160; 39 C.J. 1393, sec. 4; Steines v. Franklin County, 48 Mo. 178; State ex rel. Holladay v. Withrow, 24 S.W. 638; Cornell v. McAllister, 249 Pac. 961; State ex rel. Wyatt v. Ashbrook, 154 Mo. 375, 55 S.W. 629; Montgomery v. Henry, 1 L.R.A. 658; Village o......
  • Murphy v. Barron, No. 21909.
    • United States
    • United States State Supreme Court of Missouri
    • 30 Diciembre 1920
    ...brought into conflict with State ex rel. v. Fort, 180 Mo. loc. cit. 112 et seq., 79 S. W. 167, and an opinion in State ex rel. v. Withrow, 24 S. W. 638, which, though it is unofficial, is the expression of the view of four learned and eminent judges of this court, The true rule, so far as c......
  • Simpson v. Talbot
    • United States
    • Supreme Court of Arkansas
    • 6 Febrero 1904
    ...Ark. 77; 30 Ark. 640. Appellees cannot redeem. 71 S.W. 255. Appellant was not guilty of laches. 152 U.S. 413; 173 U.S. 131; 111 Ill. 328; 24 S.W. 638. Mere delay, not operating to the prejudice of the adverse party, is immaterial. 14 Ga. 238; 136 Mass. 273; 152 Mo. 398. The facts upon which......
  • Little River County v. Buron, 169
    • United States
    • Supreme Court of Arkansas
    • 13 Octubre 1924
    ...632; 29 N.E. 146; 75 N.Y.S. 976; 71 A.D. 351; 69 F. 671; 8 Kan. 623; 60 P. 1092; 128 Cal. 444; 82 Mass. 166; 56 N.E. 953; 184 Ill. 597; 24 S.W. 638; 42 Mo. 171; 55 Cal. 599. OPINION [165 Ark. 536] HART, J. V. E. Buron filed three claims in the county court of Little River County, Arkansas, ......
  • Request a trial to view additional results

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