Union Depot Company v. Frederick

• Citation: 21 S.W. 1118,117 Mo. 138
• Parties: Union Depot Company v. Frederick, et al., Plaintiffs in Error
• Decision Date: 19 June 1893
• Court: United States State Supreme Court of Missouri

21 S.W. 1118

117 Mo. 138

Union Depot Company v. Frederick, et al., Plaintiffs in Error

Supreme Court of Missouri

June 19, 1893

Dissenting opinions at 21 S.W. 1130; 26 S.W. 350

Appeal from Jackson Circuit Court.

Affirmed.

Gage Ladd & Small for plaintiffs in error.

(1) The condemnation in controversy here can be collaterally attacked because the plain and positive provisions of the law were disregarded in the proceedings, in that a lump assessment was made of a tract of which Frederick only owned a part, and his part was not separately assessed. (2) The condemnation was utterly void because in violation of the constitution, in this, that no separate assessment was ever made of Frederick's land, and no compensation paid to him, or for his use for it. Whatever the statutory provision might have been, such a proceeding was unconstitutional and therefore void. City v. Richfield, 45 N.W. 129; Railroad v. Sanford, 23 Mich. 418; Rusch v. Railroad, 54 Wis. 136; Brennan v. St. Paul, 47 N.W. 55. (3) The position of defendant in error that the judgment of condemnation was not subject to collateral attack cannot be maintained because there was no judgment of condemnation. Gray v. Railroad, 81 Mo. 135. (4) The petition states that Frederick, Joy, the railroad company and the three trustees were all nonresidents. The law declares that it is only in cases where the parties are residents of the county that more than one owner can be proceeded against in the same proceeding. (sec. 5, chap. 66.) And this court has construed this provision of the statute to be mandatory. Railroad v. Kellogg, 54 Mo. 334; Railroad v Carter, 85 Mo. 448. (5) When drawn in question, collateral proceedings for the condemnation of property for public use are strictly construed. Ells v. Railroad, 51 Mo. 200; Whitely v. Platte Co., 73 Mo. 30; Anderson v. Pemberton, 89 Mo. 61. (6) The act of March, 1871, authorized Union Depot companies to condemn lands in fee only and not merely the use. The Constitution, art. 2, sec. 21, provides that the fee of land taken for railroad tracks without consent of the owner shall remain in such owner subject to the use for which it is taken. The act of 1891, and the proceedings had under it were, therefore, unconstitutional and void. DeCamp v. Railroad, 47 N. J. Law, 43; Commissioners of Amsterdam, 96 N.Y. 351; Currier v. Railroad, 11 Ohio St. 228; Roanoke City v. Berkowitz, 80 Va. 616.

Pratt, Ferry & Hagerman for defendant in error.

(1) Conceding that there was a joint assessment of separate tracts the judgment of condemnation was not subject to collateral attack because of such fact. Gray v. Bowles, 74 Mo. 419; Brimmer v. Boston, 102 Mass. 19; Longfellow v. Quimby, 29 Me. 196; Young v. Sellars, 106 Ind. 101, and State v. Canterbury, 28 N.H. 195, 223, 240; Railroad v. Kellogg, 54 Mo. 334, 338; Railroad v. Carter, 85 Mo. 448; Railroad v. Baker, 102 Mo. 553, 560; Thompson v. Railroad, 110 Mo. 147; Railroad v. Greve, 17 Minn. 322; Knauft v. Railroad, 22 Minn. 173, and Railroad v. Boyer, 13 Pa. St. 496. (2) The rule recognized almost everywhere is this: Where jurisdiction to act exists, then no error of decision nor any irregularity can in anywise collaterally affect the judgment. Such a rule has been forcibly declared in condemnation cases in this state, and none other has been recognized until the opinion in this case was promulgated. Evans v. Haefner, 29 Mo. 141; Quayle v. Railroad, 63 Mo. 465, 471; Thompson v. Railroad, 110 Mo. 147; Sedalia v. Railroad, 17 Mo.App. 105. (3) A misjoinder of parties is not a jurisdictional defect, nor one sufficient for the purposes of collateral attack. Railroad v. Kellogg, 54 Mo. 334; Railroad v. Carter, 85 Mo. 448; Thompson v. Railroad, 110 Mo. 147; Railroad v. Baker, 102 Mo. 553. (4) The court concedes us that if there was a single tract of land with undivided, undetermined or even undescribed interests, a lump assessment would not be void. So say all the books. Railroad v. Baker, 102 Mo. 553; Thompson v. Railroad, 110 Mo. 147; Railroad v. Wilson, 45 Mo.App. 1; Snoddy v. Pettis Co., 45 Mo. 361; Railroad v. Christy, 92 Ill. 337; Railraod v. Benham, 28 Mich. 459; Railroad v. Alley, 34 Mich. 16; Railroad v. Barnes, 44 Mich. 222; Sherwood v. Railroad, 21 Minn. 122; McIntyre v. Railroad, 26 N.J.Eq. 425; 1 Rorer on Railroads, 338. Such is the state of the record here.

Macfarlane, J. Brace, Barclay and Gantt, JJ., concur. Black, C. J., does not sit. Sherwood, J., dissents. Burgess, J., concurs, with the exception of the fourth paragraph, from which he dissents.

OPINION

In Banc

Macfarlane J. --

The suit is injunction to restrain defendant, Frederick, and his co-defendant, the sheriff, from executing a writ of possession against the Missouri River, Fort Scott and Gulf Railroad Company, for a certain parcel of land, for which defendant Frederick had obtained a judgment in ejectment against said railroad company. A demurrer to the petition was overruled, defendants declined to plead further, and a perpetual injunction was adjudged, to reverse which this writ of error is prosecuted. The question is, whether the petition states facts which entitle plaintiff to the relief granted.

The petition charges that in March, 1875, Frederick sued the said railroad company for the possession of a tract of land in Kansas City. On June 4, 1879, he recovered judgment, and the case was appealed to the supreme court, where the judgment was affirmed in 1884.

The plaintiff, Union Depot Company, is a corporation organized under the general laws of the state (Acts of 1871, pp. 59, 61) with power to maintain a union depot at Kansas City. Pending the aforesaid ejectment suit, viz: April, 1877, plaintiff commenced condemnation proceedings to secure land for the depot; a portion of the land involved in the ejectment suit was included in the proceedings for condemnation. These proceedings resulted in the appointment of commissioners, a report of the commissioners assessing the damages and an order of the court approving and confirming the report, and the question here is whether the proceedings were sufficient to entitle the plaintiff to the use of the land in suit for its depot; if so, then the injunction was properly granted; if not, the judgment should be reversed.

The petition for condemnation was against the said Frederick, James F. Joy, said railroad company, Nathaniel Thayer, F. W. Palfrey and George W. Weld, trustees and others as defendants.

A tract of land called in the petition the second parcel was described, and the names of the owners given as follows:

"Beginning at a point on the east boundary line of Santa Fe street and two hundred and ten (210) feet south of the southeast corner of Santa Fe street and Union avenue; thence running south along said east line of Santa Fe street three hundred and seventeen (317) feet; thence east at right angles to said Santa Fe street ten (10) feet; thence northeasterly two hundred and fifty-three (253) feet, to a point in the west line of the northeast quarter of section six (6), township forty-nine (49), of range thirty-three (33), which point is one hundred and forty (140) feet south of the southeast corner of lot No. six (6), of block number forty-two (42), in Turner & Co's addition to the City of Kansas; thence north along said west line ninety (90) feet; and thence west and at right angles thereto one hundred and twenty (120) feet, to the place of beginning, containing fifty-nine (59) one hundredth (59-100) of an acre more or less.

"That the names of the owners of said second parcel are as follows: Of that part of such parcel south of a line running east and west across the same fifty (50) feet north and parallel with the south line thereof, the Farmers' Loan and Trust Company, a corporation created and existing under the laws of the state of New York, trustee, and the Leavenworth, Lawrence & Galveston Railroad Company, a corporation created and existing under the laws of the state of Kansas; of the balance of such parcel north of said line across the parcel, James F. Joy, John B. Frederick, the Missouri River, Fort Scott and Gulf Railroad, a corporation created and existing under the laws of the state of Kansas, and Nathaniel Thayer, F. W. Palfrey and George W. Weld, trustees."

The petition charged that a number (naming them) of defendants were non-residents. The petition was presented to the circuit court, and June 28, 1877, was fixed as the time for hearing it. Timely summons was served on all resident defendants and notice by publication was duly given to non-resident defendants.

On June 28, 1877, the petition was heard by the court, Frederick appearing by attorney, and commissioners were thereupon appointed to assess the damages. The commissioners viewed the land and returned to the clerk a report of the damages allowed which was filed in July, 1877, and recorded by him.

The commissioners allowed $ 500 damages to the owners of the south fifty feet of the second parcel. About that tract none of the parties to this suit are concerned.

The remainder of that parcel the commissioners divided into two tracts and assessed the damage to the owners of the south one of them at $ 2937.34 and of the one north at $ 2450. The owners of each of these were stated in the report to be Frederick, Joy, said Fort Scott railroad and the three trustees, Thayer, Palfrey and Weld. Upon filing the report the amount of damages assessed was paid to the clerk.

The petition then charges that upon filing said report the clerk duly notified all persons whose lands were affected thereby including said Frederick, of the filing of said report and the payment to the clerk of the damages. No written exceptions were filed to the report, by Frederick or any other defendant. On the...