White v. Memphis, Birmingham & Atlantic Railroad Co.

• Decision Date: 21 March 1887
• Citation: 1 So. 730,64 Miss. 566
• Court: Mississippi Supreme Court
• Parties: J. M. WHITE v. MEMPHIS, BIRMINGHAM AND ATLANTIC RAILROAD CO

1 So. 730

64 Miss. 566

J. M. WHITE v. MEMPHIS, BIRMINGHAM AND ATLANTIC RAILROAD CO

Supreme Court of Mississippi

March 21, 1887

APPEAL from the Circuit Court of Marshall County, HON. W. S FEATHERSTON, Judge.

The case is stated in the opinion of the court.

Affirmed.

J. D Martin, for the appellant.

1. As to the condemnation of land for public use, it is sometimes said that "due process of law" means that the State has provided a tribunal for the assessment of damages. Cooley Const. Lim. 700.

It is essential, however, that this remedy be one to which the landowner can resort on his own motion. If the provision is only for the public authorities appropriating the lands, to be authorized to take proceedings of condemnation, such provision is simply void. Cooley Const. Lim. 701; Shepardson v. Milwaukee R. R. Co., 6 Miss. 605; Powers v. Bears, 12 Wis. 220; McCann v. Sierra Co., 7 Cal. 121; Collin v. Rossi, 9 Cal. 595; Rugdtz v. Dubuque, 4 Iowa 343.

This charter does not require any such construction to be placed upon it, and if it did such provision would be void.

There is nothing in the contention that the charter does not permit the landowner to apply for a jury.

2. There is a distinction between a want of jurisdiction and a defect in obtaining it. So it has been held in Mississippi that a defective service of process does not render the judgment liable to collateral attack. Harrington v Wafford, 46 Miss. 31; Christian v. O'Neal, 46 Miss. 669; Campbell v. Hayes, 41 Miss. 561.

The above authorities are peculiarly applicable to the return of the sheriff. The warrant commanded him to summon twelve disinterested freeholders, and he returns that he executed it by summoning twelve persons, naming them. The respondent claims that he should have added after their names the words "disinterested freeholders." He was commanded to summon and he returns that these were the persons he summoned in obedience to its commands. He was commanded to summon only these. The conclusion is irresistible that if he obeyed it all, it was by summoning disinterested freeholders. There is no ambiguity.

The proceedings of the jury of view in this proceeding are safe from attack.

The charter gives the right of appeal from the award. When this is given all error must be taken advantage of in that way. Mills on Eminent Domain 323.

Even a direct attack on the validity of the award will not succeed, when appeal is allowed, unless it is alleged that the appeal was prevented by fraud, accident, collusion, or mistake. Mills on Eminent Domain 323; People v. Sparhawk, 20 N.H. 317; People v. Wesson, 64 N.Y. 167; True v. Freeman, 64 Me. 573.

J. D. Martin also made an oral argument.

J. H. Watson, for the appellee.

Conceding that mandamus would lie if the condemnation proceedings were regular and the verdict of the jury imposed a legal obligation on the railroad company, yet we submit, it cannot issue in this case because the condemnation proceedings as set out in the petition are fatally defective and void.

1. The charter of the company does not authorize the landowner to make the application for a jury provided for in § 10. See Acts of 1859, pp. 51, 52, 53, 54.

The plain tenor of § 10 is that in every case arising under it the landowner is to be the defendant. It confers certain rights on the railroad company to be exercised under certain conditions. If the railroad company fails to avail itself of these rights and takes possession of land not otherwise acquired, the landowner's rights remain unaffected and the company is a trespasser and liable to be proceeded against as such. In the appropriation of land to which it has no right, either by contract or condemnation, it acts at its peril.

2. The condemnation proceedings are invalid, because the record fails to show that the jurors summoned were "disinterested freeholders" as required by the charter.

"The officer who summons the jury is bound to show by his return that he has summoned such as answer the description in the writ," and unless this is shown it is a fatal jurisdictional defect. See The People v. Brighton, 20 Mich. 71, 72.

The special attention of the court is respectfully called to this case, and in connection with it to the case of Allen v. Levee Commissioners, 57 Miss. 167, where the court, in discussing a proceeding under a precisely similar statute, say: "As there is no means given by the statute by which a non-observance of its requirements can be excepted to and made a part of the record, it is essential that the record itself should show affirmatively that the statute was strictly complied with."

J. H. Watson made an oral argument also.

OPINION

COOPER, C. J.

There is in the record an agreed statement of facts by which it appears that in 1872 the appellant and her brother were the owners of the lands described in the suit; that in 1872 the Memphis, Holly Springs and Selma Railroad Company (of which the appellee is the successor) entered upon the lands and began the construction of its road, and no objection was made thereto by the owners of the land; that in 1873 work was suspended and not resumed until 1881, at which time the appellant was the owner of the land and as such executed a deed conveying to the company a right of way "on condition that the road is built by the expiration of two years from date;" that within the two years the road was built between Byhalia and Holly Springs, but the whole road was not built within that time; that in 1884 the appellant fenced up the right of way and prohibited the company from entering thereon until compensation should be made for the way and damages to her other property caused by the road; that one Erb was appointed receiver of the company by the United States District Court for the Northern District of Mississippi, and that appellant petitioned that court to restrain its receiver from entering upon the premises until compensation...