Tracy v. Elizabethtown, Lexington & Big Sandy Railroad Co.

• Decision Date: 16 May 1882
• Citation: 3 Ky.L.Rptr. 813,80 Ky. 259
• Parties: Tracy, & c., v. Elizabethtown, Lexington and Big Sandy Railroad Company.
• Court: Kentucky Court of Appeals

80 Ky. 259

3 Ky.L.Rptr. 813

Tracy, & c., v. Elizabethtown, Lexington and Big Sandy Railroad Company.

Court of Appeals of Kentucky.

May 16, 1882

1. The charter of appellee gives the property-owner the right to a hearing after the return of the verdict and during a regular term of the court, and it is not material when the term begins if a reasonable opportunity be given to the parties for preparation.

2. Sufficient time was given to both parties to be heard.

3. Notice to owners is not expressly required by the charter to be given in any stage of the proceeding, but, by necessary implication, it is indispensable.

4. Necessity and a public use must, in all cases, exist as a condition precedent to the legal right of a railway company to enforce the remedy given by a charter to condemn property.

5. The company is not the judge of the necessity for the condemnation of the property or of the character of its use. The decision of both these questions belongs to the court.

6. The supersedeas was improperly issued, as appellants' remedy was otherwise complete, and would afford them ample protection against an entry before a confirmation or the setting aside the verdict.

APPEAL FROM FAYETTE CIRCUIT COURT.

HUSTON & MULLIGAN, D. G. FALCONER, AND WM. LINDSAY FOR APPELLANTS.

1. The necessary construction of appellee's charter requires that appellants should have had actual notice.

2. The term at which the verdicts were confirmed was not the next regular term, and the court, at the February term, 1880, had no authority to hear or confirm them.

3. The question of the necessity for the taking appellants' property for the use of appellee's railroad should be determined, not by appellee, but by the court. Appellee cannot adjudicate upon this question. The petition of appellee should have shown how much land it was necessary to take, and the reason for it. (Session Acts 1869, vol. 1, 221 Potter's Dwarris on Stat., 194; Sedgwick on Const. and Stat. Construction, 234; Cooley on Const. Lim., sec. 540; Reed v. Bridge Co., 8 Bush, 73.)

BRECKINRIDGE & SHELBY FOR APPELLEE.

1. Appellee's charter recognizes only one proceeding, and that is set out in section 13, 1 Session Acts, 221-'2.

2. By their charter appellee can acquire the use of one hundred feet of ground for its track.

3. The right to determine the necessity for the taking is delegated by the legislature to the company as its agent, and the determination of the company is conclusive of the necessity. (Mills on Eminent Domain, secs. 61, 62, 84, 85, 87, 91; Cooley on Const. Lim., pp. 703, 672, 657; 21 N.Y. 597; Reed v. Lou. Bridge Co., 8 Bush, 72; 2 Rev. Stat., chap. 103 secs. 30, 31, 32; 60 N.Y. 116; 12 Ind. 374; 63 N.Y. 326; 53 Ib., 576; 46 Ib., 550; 1 Barb. Ch., 547; 9 House of Lords, 255; 14 Wis. 617; Harper v. Lex. & Ohio R. R. Co., 2 Dana, 227.)

OPINION

HARGIS, JUDGE:

The thirteenth section of an act incorporating the Elizabethtown Lexington and Big Sandy Railroad Company (2d volume Session Acts, 1869), provides " that the president and directors, or a majority of them, or their authorized agents may agree with the owners of any land, earth, stone, timber, or other materials or improvements which may be wanted for the construction or repair of said road or any of their works, for the purchase in fee-simple, or the use and occupation of the same; and if they cannot agree, or if the owner or owners, or any of them, be a feme covert, under age, non compos mentis, or out of the county in which the property may lie, application may be made to a justice of the peace of said county, who shall thereupon issue his warrant, directed to the sheriff or any constable of the county, requiring him" to summon a jury to meet on the land, or near the property or materials to be valued, for the purpose of fixing the damages which the owner or owners will sustain by the use and occupation of the property required by said company.

The company, by petition, made application to a justice of the peace for a warrant, as prescribed by that section, alleging that it had been unable to agree with the owners of the land, on which it appears a livery stable is situated, as to the amount of damages which they would sustain by the condemnation thereof, and that " it desired to obtain the title and use in perpetuity" of said land, which is particularly described in the petition.

Without notice or hearing, other than was afforded by an inspection of the petition, the justice issued his warrant, directed to the sheriff, requiring him to summon a jury and proceed with the inquisition as provided by said section.

The sheriff notified the legal title-holders residing in the county, and the occupant of the land and stable, of his intention to hold the inquest, and of the time, place, and purpose of it.

The appellant Tracy, who is the vendee in possession of the land under verbal contract, appeared and filed an answer with the sheriff before the jury was sworn, in which he denied " that the land and property sought to be condemned by the proceedings herein is necessary for said company in the construction or repair of said road, or for their necessary works or buildings," and controverted the right of the company to take or condemn his property.

The issue presented by the answer was not considered by the inquest, the verdict of the jury being confined to the question of compensation alone.

The sheriff returned the verdict to the circuit clerk of the county, who received and filed it during a regular term of the circuit court, on a subsequent day of which it was confirmed.

From that judgment this appeal is prosecuted.

During a former term of this court, appellee's motion to quash the supersedeas and dismiss the appeal was overruled. (See 78th Ky., 309.)

The appellants insist that the proceedings were erroneous--

First. Because the inquest was filed and heard during a regular term of the circuit court.

Second. Because F. H. Brown, a non-resident owner of an interest in the property, was not notified of any of the proceedings.

Third. Because the necessity for the taking of their property for a public purpose was not shown by the appellee.

We will dispose of these questions in the order stated.

First. Appellants rely upon a clause in the thirteenth section of appellee's charter as forbidding the hearing at the same term which the verdict was returned.

After specifying by whom the verdict shall be signed, returned, and filed, that clause provides that " such verdict shall be confirmed by the circuit court at its next regular term, if no sufficient reason is shown by either party for setting it aside."

This does not require the term to be commenced and the trial had after the verdict shall have been filed.

It secures to the property-owner the right to a hearing after the return of the verdict, and during a regular term of the court, and it does not matter when the term may have begun, provided a reasonable opportunity for preparation be given the parties.

The appellants were given four days to prepare for trial after the verdict was filed, and the number of witnesses examined who appear to know all about the property and its nearness to the court, show that a sufficient opportunity to be heard was accorded to both parties.

Second. Notice to the owners is not expressly required by the charter to be given in any stage of the proceedings, but we think the charter, by necessary implication, renders notice indispensable. It gives the right to an appeal, and unless notice of the proceedings is required, and a hearing given, such right would be of no value.

There is also a provision in the charter authorizing an agreement for compensation to be made by the company with the owner before the application for the writ of ad quod damnum, and certainly notice to the owner is contemplated by this provision, as an agreement could not, without notice, be made with him. And as it does not confine the jury to a view of the property alone in fixing the damages, evidence may, therefore, be given on the question of just compensation, and notice to afford an opportunity to adduce the evidence is essential.

These provisions, when coupled with the restriction that the property must be necessary, as hereafter shown, to the use by the company in discharge of a public duty, indicate an intention, upon the part of the legislature, to require...