Walther v. Warner

• Citation: 25 Mo. 277
• Parties: WALTHER, Plaintiff in Error, v. WARNER et al., Defendants in Error.
• Decision Date: 31 July 1857
• Court: United States State Supreme Court of Missouri

25 Mo. 277

WALTHER, Plaintiff in Error,

v.WARNER et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1857.

1. The building of a railroad by a private corporation, under the authority of the Legislature, for the accommodation of the public, is a public use for which private property may be lawfully taken.

2. Legislative acts, authorizing the taking of private property for public use, are unconstitutional, unless they provide the owner with a proper remedy to obtain a just compensation.

3. This remedy must be an efficient one; there must be an adequate fund, and an appropriate legal remedy, to enforce its application; a judgment against a private corporation is not sufficient.

4. In proceedings instituted by the Pacific Railroad Company to obtain title to land upon which said company had located its railroad, a judgment was rendered against the company for the damages assessed, and an order was made transferring the title to the land to the company; held, that actual payment of the damages was essential to the vesting of the title in the company; no entry upon said land prior to such payment for the purpose of constructing the railroad could be justified.

5. It is competent, it seems, for the Legislature to authorize entries upon private property, without compensation, for the purpose of making examinations and surveys preliminary to the location of a railroad.

Error to Cole Circuit Court.

Parsons and Morrow, for plaintiff in error.

I. The court should have sustained the motions to strike out so much of defendants' original answer as justified the entry upon and taking the land by virtue of the “Act to incorporate the Pacific Railroad,” approved March 12th, 1849; the “Act to expedite the construction of the Pacific Railroad and the Hannibal and St. Joseph Railroad,” approved February 22d, 1851; the act to amend the act, entitled: “An act to incorporate the Pacific Railroad,” approved March 1st, 1851, and the “Act to authorize the formations of railroad associations, and to regulate the same,” approved February 24th, 1853. Said answer does not allege that the Pacific Railroad Company performed the conditions required of it by the 9th and 10th sections of the “Act to incorporate the Pacific Railroad,” approved March 12th, 1849, and by the 14th, 15th, 16th, 17th and 18th sections of the “Act to authorize the formation of the railroad associations, and to regulate the same,” approved February 24th, 1853.

The right of entry and possession under this act exists only after the payment of the damages assessed, which payment is not alleged in the answer. It is manifestly defective under this statute. (See Bloodgood v. Mohawk & Hudson Railroad Company, 18 Wendell, 9.) The 56th section of this act makes the sections above cited applicable to the Pacific Railroad Company.

II. The act of 1849, incorporating the Pacific Railroad Company, does not give the company the power to take private property before making compensation for the same. (See sections 9 and 10.) The construction of these sections, as contended for by the defendants, is unconstitutional. (Constitution of the United States, amendments art. 5; Constitution of Missouri, art. 13, sec. 7.) Just compensation, as meant by the constitution, is a certain and complete reparation in money for the property taken. The payment must not depend on any contingency. The owner of the property cannot be compelled to surrender it, and credit a corporation which may be solvent to-day and insolvent to-morrow. It is by no means certain that corporations will pay all their liabilities. A promise from them, or any of them, is not the certain compensation intended by the constitution. The proper construction of the act is that the compensation for the property taken must be made before or at the time it is taken and appropriated. (See Bloodgood v. Mokawk & Hudson Railroad, 18 Wendell, 9; Blanchard v. Maysville & Lexington Turnpike Co., 1 Dana, 86; 25 Wendell, 464; 3 Hill, 567; 2 Kent, 339; 3 Howard, 240; 9 Georgia, 347.)

III. The supplemental answer set up nothing more by way of defense than is contained in the original, except that the Pacific Railroad Company has taken steps to have the plaintiff's damages assessed, and that advantages accrue to him by the construction of the road. The objections to the original apply with equal force to the supplemental answer.

The supposed advantages to the plaintiff resulting from the alleged trespass could not be pleaded as a defense. (7 Maine, 386; 9 Dana, 114; 5 Dana, 28; 7 Dana, 81.)

IV. The proceedings in the case of the Pacific Railroad Company against the plaintiff were inadmissible as evidence in this case. The award of the commissioners was not warranted by the law, and the judgment of the court, upon the award in giving judgment for crossings, was not authorized by the law. The act under which said proceedings were had requires compensation for damages to be in money. (See 16th, 17th and 18th sections of the “Act to authorize the formation of railroad associations, and to regulate the same,” approved February 24th, 1853; 18 Pickering, 443.)

V. The court should have given the 1st, 2d, 3d, 4th, 5th, 6th and 7th instructions asked by plaintiff, and should have refused the 2d, 3d and 4th asked by defendant. See authorities cited in the 1st, 2d and 3d points made by plaintiff in error. (Gallaher v. Gates, 20 Mo. 237; Cooper County v. Geyer, 19 Mo. 257; Baldwin's C. C. 206; 9 Ga. 356; 26 Wend. 497; 4 Kelly, 45.)

Gardenhire, for defendant in error.

I. The charter of the company gave them full power to survey, mark, locate and construct a railroad over the land of the plaintiff in error without previously ascertaining and paying or tendering him the damages. (Laws of 1849, 220, 221, secs. 7, 9 and 10.) It gave him a judgment against the company for the amount of damages assessed, and the company an order simultaneously with the judgment, vesting in them the fee simple title of the land. The mode of acquiring title to land by railroad associations, prescribed by the 13th, 14th, 15th, 16th, 17th and 18th sections of the act of February 24th, 1853, to authorize the formation of railroad associations, and to regulate the same (Sess. Acts 1853, pp. 128, 131; R. C. 1855, pp. 414--19), is not applicable to the Pacific Railroad.

II. The charter of the Pacific Railroad is constitutional, although it vests in the company the fee simple title of the land upon judgment against them for the damages assessed. (1 Baldw. C. C. 226, 227; 3 How. Miss. 250; 6 Wend. 634; 14 Wend. 51; 12 Mass. 483; 7 N. Hamp. 70, 71; 25 Verm. 66; 31 Maine, 215; 35 Maine, 323; 1 Foster, 359; 9 Conn. 436; 2 Kent Com. 339; 20 Johns. 744.) The constitutionality of the general law in regard to roads and highways has never been attacked, and yet it is subject to the same objection as the charter of the Pacific Railroad. (R. C. 1855, pp. 1372-3, secs. 21-25.) The authorities denying the constitutionality of the law admit the right of entry for the purpose of locating the road. This gives up the tort; for it may and usually does become necessary, in locating the road, to destroy the timber and sink shafts on the line of the survey. What is the difference in principle between cutting timber and digging up the soil in locating the road, and doing the same thing in constructing it? Locating the road is not taking the property; neither is constructing it taking it. One, however, is just as permanent a use of the land as the others. Taking can be nothing less than the divestiture of the fee. Neither the location nor construction of the road does this. The fee is still in the land owner, with powers to force the vendees of the law specifically to perform the contract made by the law. (1 Amer. R. C. 167, note.)

III. The charter of the company provides a remedy for the land owner to recover damages for the location and construction of the track across his land; and it is exclusive of the remedy at common law. Lawful authority being given to take the property for public use, the act of taking was justifiable, and no action for a tort will lie. (See 1 Amer. R. C. 166, note 1; 7 Ad. & El. 124; 3 Eng. Law. & Eq. 59; 6 id. 179.) The land owner may by mandamus compel the company to have his damages assessed and paid. (5 Pick. 323; 5 Watts, 152; 1 Barb. 34; 4 Barb. 64; 31 Maine, 272; 1 Ohio State Rep. 77, 105; 9 Smede & Marsh. 77, 90; 17 Ala. 530; 18 Wend. 18.) He may also have an injunction, in a proper case, until they are assessed and paid. (2 Kent, 399, 400, note a;20 Johns. 744, 745; 1 Baldwin's C. C. 226; 3 How. Miss. 250; 2 Story's Eq., sec. 959 b.) These remedies admit the constitutionality of the law, and enforce its execution in a constitutional way so as to protect private rights. The action of the plaintiff in error denies it, denies in fact the right of eminent domain, and treats the executors of the law as trespassers.

LEONARD, Judge, delivered the opinion of the court.

The questions in the present case relate to the proper construction of our constitutional provision prohibiting private property from being taken for public use without a just compensation. We have remarked, in an opinion delivered at the present term (Newby v. Platte Co., 25 Mo. 258), what indeed seems to be unquestionable, that there is in this provision an implied prohibition against the taking of private property for any purpose other than for public use. And, accordingly, the particular questions to which our attention is now called, are whether the use of the plaintiff's property by the company for the construction of their road is a public use within the meaning of the constitution, and if so, whether, under our constitution and the laws applicable to this transaction, it was lawful for the company, under the circumstances of the case, to enter upon the plaintiff's land for the purpose of constructing their road. The first point has not been contested here, and no matter what doubts in reference to it...