dissenting.
I am unable to agree to the conclusions reached in this case, and I think that the defendant’s demurrer to the bill should have been sustained and the bill dismissed, upon the ground that the complainants have a complete remedy at law, and that, therefore there is no jurisdiction in equity. The bill, in short, alleges that the complainants were the owners of a certain tract of land, and were in the quiet and peaceful possession thereof. That the defendant railroad company wrongfully, and without their sanction or consent in any manner given, appropriated the same, built its road thereon and has ever since occupied and used it for the purposes of its roadway, without having paid any compensation therefor, and without taking any steps to condemn it under the right of eminent domain.
The bill makes out a plain and clear cut case of a tortious trespass upon, and wrongful seizure of, the complainants’ land, nothing more and nothing less, and in the eyes of the law it can not be comprehended in any other light than that of a tort, and for such torts the law courts afford an ample and complete remedy in the action of trespass quare clausum fregit. In which action this court has held, in Pensacola & Atlantic R. R. Co. v. Jackson, 21 Fla. 146, and in Jacksonville, Tampa & Key West Ry. Co. v. Lockwood et al., 33 Fla. 573, 15 South. Rep. 327, that, in a case like this, the plaintiff can recover the entire damage sustained, including the value of the land wrongfully appropriated. In Pensacola & Atlantic R. R. Co. v. Jackson, supra, this court, following the universal doctrine held elsewhere, has’ said that in such cases of wrongful taking of lands by railroad companies the owner does not losé his title to the land, but he still holds the title and occupies no other status *16than that of a man whose property is trespassed upon. The courts can not admit that such wrongful seizure of lands by railroad companies so divests the owner of his property as that he has nothing of it left but a bare lien that equity can enforce in his favor. To make any such admission is to assert, in the teeth of the Constitution, that the citizen’s property can be effectually appropriated against his consent, and without just compensation being first paid therefor. I can not consent to the admission. On the contrary, my view is that the trespassing railroad company, individually considered, acquires by its tortious taking no rightful interest in, or ownership over, the land whatsoever upon or out of which anything in the nature of a lien can spring or rest, but the owner still has the paramount right, title and interest therein and thereto, not simply a bare lien thereon that he has to resort to the courts to enforce. If it be true that the tortious taking does not divest title, how can a party claim or enforce in his own favor a lien upon property to which he already has the absolute title, no element of which has been taken from him, except that of actual possession? At the end of the enforcement of any such supposed lien in the court of equity, does he acquire any other, stronger or different right in, or title to, the land taken than he held before such enforcement? Certainly not. Such a proceeding is but the chasing of the title around a circle, starting with it ¡admittedly to be in the owner and ending by asserting it to be still in him. Without the owner’s consent there is but one way to divest him of his property for public use, and that is by the proper exercise of the right of eminent domain. If this is not done the attitude of the railroad to the owner is that of a tort feasor, and so long as it occupies that attitude, the courts can apply to it only such remedies as the law affords for the redress of torts.