Wyoming Railway Company v. Leiter

• Decision Date: 14 December 1917
• Docket Number: 892
• Parties: WYOMING RAILWAY COMPANY v. LEITER
• Court: Wyoming Supreme Court

169 P. 1

25 Wyo. 286

WYOMING RAILWAY COMPANY v. LEITER

No. 892

Supreme Court of Wyoming

December 14, 1917

ERROR to District Court, Sheridan County; HON C. H. PARMELEE Judge.

Condemnation proceedings by the Wyoming Railway Company, a corporation against Joseph Leiter, et al., surviving trustees under the last will and testament of Levi Leiter, deceased. From an order of the court allowing interest on the award of the commissioners, plaintiff brings error.

Judgment modified.

H. W Nichols and W. T. Alden, for plaintiff in error.

The statute does not provide for awards of interest by commissioners in condemnation proceedings. (Chapter 211, Comp. Stats. 1910; Wyoming Bank v. Brown, 7 Wyo. 494; Harvey v. Hamilton, 155 Ill. 380; Sections 3854-3856, Comp. Stats. 1910; Rawlins v. Murphy, 19 Wyo. 238.) Even if interest be allowed in fixing compensation, it must be included in the award of the commissioners. (Sections 3846, 3847 and 3851, Comp. Stats. 1910; Blackwell Co. v. Bebout, 19 Okla. 63, 91 P. 877; Butte Co. v. Matthews, 34 Mont. 487, 87 P. 460; Wentworth v. Portsmouth, 68 N.H. 392, 44 A. 531; 15 Cyc. 930.) Interest is a creature of statute. (Wyoming Bank v. Brown, supra.) The award covers all damage to date of filing. (Oregon Co. v. Jones, 29 Utah 148, 80 P. 732; San Francisco Co. v. Lewiston, 134 Cal. 412, 66 P. 473; Greeley Co. v. Yount, 7 Colo.App. 189.)

Burgess & Kutcher, for defendants in error.

Defendants in error are entitled to interest from the time lands were taken. The constitution requires just compensation. (Lewis Em. Dom. (3rd Ed.), Vol. 2, Sec. 684.) Commissioners' award may be reviewed by the court. (Sec. 3849, Comp. Stats. 1910.) Interest is allowable from the taking of the land. (Phillips v. Comrs., 10 N.E. 230; Lewis Em. Dom. 742; 15 Cyc. 744; Hayes v. Ry. Co., 19 N.W. 245; Lough v. Ry. Co., 89 N.W. 77.) The court was the only proper tribunal to award interest. Such power is granted by Section 3849, Comp. Stats. 1910. The presumption is that interest was not included in the award. (City v. Wilkin, 15 N.W. 668; Ry. Co. v. Oliver, 87 P. 425; Alloway v. Nashville, 13 S.W. 123.) City of Rawlins v. Murphy, 19 Wyo. 238, is not in point.

BEARD, JUSTICE. POTTER, C. J., and BLYDENBURGH, J., concur.

OPINION

BEARD, JUSTICE.

The plaintiff in error desiring to construct a railroad over and across certain lands owned by defendants in error, and being unable to agree with defendants as to the amount of compensation to be paid for the right of way, it instituted condemnation proceedings in the District Court, August 1, 1913, to acquire said right of way and to have the compensation to be paid therefor ascertained and determined. Bond being given authorizing it to take immediate possession, commissioners to ascertain and determine such compensation were duly and regularly appointed by the court, and on November 25, 1914, they filed their certificate of assessment in the office of the clerk of said court, fixing the amount of said compensation at $ 1,430.82. Thereafter, and on January 15, 1915, the plaintiff filed exceptions to the report and award of the commissioners; and on June 10, 1915, defendants also filed exceptions to said report and an application for a jury trial. No further proceedings were had in the matter until March 29, 1916, when the parties filed two stipulations in writing. In one it was stipulated that the Railway Company had taken possession of the land on or before September 1, 1913; and in the other, "that both said plaintiff and said defendants shall and they hereby do each and all withdraw all exceptions and objections to the certificate, report and award of the commissioners filed herein, and said defendants hereby withdraw and waive their demand for a jury trial herein. It being understood, however, that said defendants do not by this stipulation waive their claim to interest on said award, as asked for in motion filed herewith in said cause, from September 1, 1913." At the same time defendants filed their motion for the allowance by the court of interest on the amount of the award at 8 per cent per annum from September 1, 1913. On the same day the court entered an order confirming the report of the commissioners and requiring plaintiff to pay to defendants or to deposit with the clerk of the court to their credit the amount of said award, to-wit: $ 1,430.82, together with 8 per cent per annum interest thereon from September 1, 1913, until so paid or deposited.

The plaintiff excepted to the order of the court allowing interest, and assigns that ruling as error; and that is the only question in the case. The constitution provides, Article I, Section 33: "Private property shall not be taken or damaged for public or private use without just compensation." And it is provided by statute that the commissioners appointed for the purpose by the court shall carefully inspect and view the real estate sought to be taken and shall ascertain and certify the compensation proper to be made to the owner. (Secs. 3847 and 3848, Comp. Stat. 1910.) And by Section 3849, id., it is provided that the award of the commissioners may be reviewed by the court on written exceptions filed by either party, within thirty days after the filing of such certificate; and upon good cause shown, the court may order a new assessment, or may make such other order as right and justice may require. If no sufficient exceptions be filed within the said thirty days, and if no application be made within such time for a jury trial, the report of the commissioners shall be confirmed. The fact that the exceptions and the demand for a jury trial in this case were not filed within the time allowed is not material, as they were withdrawn, leaving the case stand as though neither had been filed. It was therefore the duty of the court to confirm the report as made by the commissioners. The statute (Sec. 3854, Comp. Stat. 1910) prescribes the method for estimating the compensation for all property taken and the time at which it is to be determined, as follows: "In estimating the compensation for all property actually taken, the true value thereof, at the time of the appraisement, shall be allowed and awarded." The statute thus fixes a definite time at which the commissioners are to ascertain and determine what is a just compensation to the owner for all property taken. "Just compensation" in such case is an equivalent in money for all property taken from the owner by reason of the condemnation proceedings; and if he has been deprived of possession of his property prior to the time of the appraisement, that is to be considered by the commissioners in determining the compensation to be awarded, if they...