Warren v. First Div. St. Paul & Pacific R. R. Co.

• Decision Date: 10 April 1875
• Parties: GEORGE B. WARREN <I>vs.</I> FIRST DIVISION OF THE ST. PAUL & PACIFIC RAILROAD CO.
• Court: Minnesota Supreme Court

Page 424

21 Minn. 424

GEORGE B. WARREN vs. FIRST DIVISION OF THE ST. PAUL & PACIFIC RAILROAD CO.

Supreme Court of Minnesota.

April 10, 1875.

Defendant having taken proceedings to condemn plaintiff's land for the purposes of its railroad, plaintiff appealed from the award of the commissioners to the district court for Ramsey county, and at the trial in that court, before Chatfield, J., (sitting for the judge of the second district,) obtained a verdict for a sum much greater than that awarded by the commissioners. For the amount of the verdict, with interest computed in the manner stated in the opinion, judgment was entered, from which defendant appealed.

H. R. Bigelow, for appellant.

I. V. D. Heard, for respondent.

GILFILLAN, C. J.

The act by which this company is incorporated, assumes to give it the right to enter upon, take, possess, occupy and use such lands as it is authorized to take for the purposes of its railroad, before initiating proceedings to ascertain and pay compensation to the owners, and to retain such possession until after the proceedings are determined, and a demand and refusal to pay the amount awarded, and provides that the commissioners shall make an appraisement and award of the value of the lands, "at the time when the same was so entered upon, taken," etc.; and that on an appeal, the jury, or if a jury be waived, the court shall assess the value of the lands, "at the time when the same was entered upon and taken," etc.; and that "after such assessment, the court shall proceed to render judgment against said company for the amount of said assessment, in favor of the plaintiff," etc.; and that whenever the amount of the award or judgment shall have been paid, or tendered, or deposited, the fee shall vest in the company. Laws 1857, Ex. Sess. ch. 1, § 13. The assessment on an appeal must be made as of the same time when made by the commissioners; otherwise, the appeal would not be in the nature of a review or correction of the award by the commissioners, but would be in the nature of an original proceeding.

This court has decided that so far as the act authorizes the company to enter upon and take the lands, before making compensation, it is unconstitutional and void; (Hursh v. First Div. St. P. & P. R. Co., 17 Minn. 439;) so that there can be no actual entering upon and taking, to fix the point of time at which the value shall be assessed. And the court has several times held that, for this purpose, the filing of the award of the commissioners is to be deemed a constructive entering upon and taking. The rights of the parties are to be determined as of that time. The verdict finds, in effect, that at that time the company ought to have paid the owner the value, as the jury assess it.

In this case, it appears from the verdict that the jury assessed the value and damages as of the time of filing the award, and that no interest on the amount assessed was included in the verdict. Upon this, the court below ordered the clerk to compute interest on the amount of the verdict from the time of the filing of the commissioners' award to...