Forbes v. Delashmutt

Adams, J

1. xioads: condemnation proceedings: delense of er“onc!iaio"rari. I. We will first consider the question in the action brought for a writ of certiorari against the members of the sheriff’s jury, or commissioners, summoned to assess the damages. In that action ° the court overruled a demurrer to the defendants’ ' answer. Whether the court thought that the plea of estoppel was good, or that the assessment, so far as the defendant commissioners were concerned, was regular and not liable to be set aside upon a writ of certiorari, does not appear. In our opinion, whatever ground of complaint the plaintiff may have had, the commissioners were without fault. They merely obeyed the summons of the sheriff. They met and appraised the damages for the taking of the land in question, as they were required to do. They had nothing to do with the question as to whether the railway company had a right to take the land, and there was nothing which they did which affected such right, or purported to affect it. That was a question entirely independent of the assessment. If we should concede that they constituted a tribunal exercising judicial functions, within the meaning of the statute, (Code, § 3216,) they did not exceed their jurisdiction, nor act illegally. Their functions pertained merely to the matter of the assessment. They should not be put into costs for doing in a regular and legal way what they were required to do. It is true that the sheriff and the railway company were joined with them. But the latter were not exercising judicial functions. The commissioners were the only ones who could be said to be doing that, and, as their answer showed that they kept within their lawful sphere, and proceeded regularly, so far as they were concerned, we have to say that we think that the demurrer to their answel was properly overruled.

2. iandíórciepot grounds: fraudulent junction. II. When we come to the action for an injunction against the railway companies, we have the question as to whether the proprietary company had the right to take the land by paying the assessed damages. The •' x J ° ° plaintiff contends that it had not, and for the reason, as he alleges, that it was taken for a purpose for which land at that time could not be condemned. The petition avers, in substance, that, while the land was taken ostensibly in part for a wood and water station, which by statute was allowable, it was in fact taken only for depot grounds, and that the company had no other use for it. The demurrer admitted this averment. At the time of the attempted condemnation the statute did not provide for the condemnation-of land for depot grounds. A company which had completed its road, and had occasion to establish an additional depot at some point where its own and the public convenience demanded, was left wholly at the mercy of the landowner. This seems to be the condition of the defendants in this case. The plaintiff manifestly desires to fix the price of his land, not according to its value, but according to the supposed exigency of the defendants, and we see no way to avoid holding that at the time of the attempted condemnation he had it in his power to do so. If the facts were that the defendants needed the whole ground for a wood and water station, and could use the same also for depot purposes to a greater or less extent, tlie condemnation probably might be sustained. So, also, if the defendants needed some part of the ground for a wood and water station, and if they were willing to pay the whole assessed damages, we see no reason why the condemnation might not be sustained to the extent of such part. But the question before us arises merely upon the petition and demurrer thereto, and we cannot go into such inquiry.

It is contended by the defendants that an action for an injunction does not lie; but in our opinion it does. We are not prepared to say that the cases where condemnation proceedings have been had, but payment has been omitted, are fully in point. If they were, the question would be one of very easy solution. Richards v. Des Moines Valley R. Co., 18 Iowa, 259; Hibbs v. Chicago & S. W. R. Co., 39 Id., 340. But the principle involved is not quite the same. We are aware, too, that it has been held that an injunction will not lie against a mere void talcing of land. Mouchet v. Railroad Co., 1 Eng. Railway & Canal Cas., 567. But the case at bar, is peculiar. One of the purposes for which the condemnation proceedings were ostensibly had was within' the provision of the statute, and the ground of the complaint is that the defendants sought to defraud the plaintiff by proceeding under the statute ostensibly for a proper purpose, when the real and only purpose was not proper. Whether the defendants acquired any right by the proceedings, and, if any, to how much ground they acquired a right, we think that it is within the jurisdiction of a court of equity to inquire.

3. parties : wtfeifcfemurlie. n The demurrer in this case was filed by the Wabash, St. Louis & Pacific Railway Company, and one of the grounds of demurrer is that the Council Bluffs & St. Louis Railway Company was not served, and that there was therefore a defect of parties. But the petition was not defective, in that the Council Bluffs, & St. Louis Railway Company was made defendant,-and if the company, was a necessary party, (which we do not determine,) and had not been served, the Wabash, St. Louis & Pacido Railway Company might have objected to any action of the court until the Council Bluffs & St. Louis Railway Company had been brought in. We do not think the petition demurrable upon that ground. In our opinion the demurrer should have been overruled.

The judgment in the action of Wm. M. Forbes v. W. C. Delashmutt and others, being the action for a writ of certiorari, must be affirmed, and the judgment in the. action of Wm. M. Forbes v. Council Bluffs & St. L. R’y Co. and others must be

Reversed.