On the 23rd day of February, 1871, the Chicago & Southwestern Railway Company instituted proceedings to condemn the right of way over a lot in Cameron, belonging to plaintiff, Provolt. Commissioners were duly appointed to assess the damages which plaintiff would sustain by reason of such appropriation of his land, and on the'4th day of March, 1871, the commissioners made a report allowing damages in the sum of $75. On the 8th day of the same month plaintiff filed exceptions to this report. The railroad company entered upon the land on the 15th day of March, and commenced the construction of its railroad thereon. On the 15th day of April, 1871, the company deposited with the clerk of the proper court, for plaintiff’s use, the sum of $75, so awarded by said commissioners. The plaintiff lived near the premises, and when the work was commenced, notified the workmen that the land-damages had not been paid, and forbade them going on with the work until he-was paid. The work was continued, however, and he made no further objection. Afterwards such proceedings were had that the report of the commissioners was set aside, and other commissioners appointed, who, on the 22nd day of February, 1872, made a report assessing plaintiff’s damages at $175. This report was confirmed on the 15th day of August, 1872. In October, 1871; the possession of the road was delivered to the Chicago, Rock Island & Pacific Railroad Company, and it has continued to operate it ever since.
On the 12th day of February, 1873, plaintiff caused an execution to be issued on the judgment awarding him land-damages, which execution was, on the 29th day of April following, returned not satisfied. Execution was again issued on said judgment on the 18th day of March, 1875, which was also returned nulla bona. Neither of these executions was issued by order of court, nor was any notice given of plaintiff’s application to have them issued. One of them was issued a few days before this suit *638was commenced, but was not returnable, and was not returned until more than a month after the suit was brought. The other execution was not issued until after the judgment in this case had been reversed by the Supreme Court. This suit was commenced on the 8th day of March, 1873, by filing a petition in ejectment against the Rock Island Company. On trial the plaintiff had judgment, which was reversed by this court on appeal. Provolt v. C., R. I. & P. R. R. Co., 57 Mo. 256. On the 15th day of December, 1875, plaintiff filed an amended petition, making the Chicago & Southwestern Railway Company a party defendant, and changing the form of the action from ejectment to an equitable action to enforce the payment of his judgment. On trial the plaintiff offered the executions above referred to, in evidence. The defendants objected that they were incompetent, irrelevant and immaterial, and that they were not issued by order of the court, or on motion, after notice to the railroad company. Thexourt overruled the objections, and the defendants duly excepted. The court found for the plaintiff, and entered a decree requiring defendants to pay to the clerk of the court, for use of plaintiff, the sum of $175 on or before the first day of the next term of the court, and in default thereof, requiring defendants to deliver possession of the premises to plaintiff and divesting them of all their right or claim thereto. At the next term of the court, the interlocutory decree was made final, and judgment rendered for plaintiff for possession of the land in question, from which judgment defendants have appealed to this court.
i. eminent domain : surrender oi land by owner without pre-payment of damages,
It is insisted by defendants that the petition does not state facts sufficient to entitle plaintiff to equitable relief, and if the facts therein stated are true, eject- . . . ment is the remedy. We pass this objection u l o with the remark that when this case was once before in this court, as reported in 57 Mo. 256, a judgment in ejectment in plaintiff’s favor was reversed at defendant’s instance on the ground that ejectment was not *639the remedy, but that repress must be sought on the equity side of the court, and the judgment was reversed and the cause remanded to enable plaintiff to so frame his petition that he might obtain relief through that channel. Now, that this has been done, to say the least of it, the claim made by defendant, that plaintiff’s remedy is at law and not in equity, manifests' a degree of inconsistency which does not commend itself to our favorable consideration.
2.-: execution to enforce payment of damages,
It is further objected that the court erred in receiving in evidence the two executions issued against the Chicago & Southwestern Eailway Company. The . sole ground of this objection, as made m the court below, was that they were not issued by order of the court or on motion, after notice given to the railroad company. If the proceedings had been instituted under the general law providing for tbe condemnation of land for railroad purposes, then section 3, Wag. Stat., p. 327, requiring motion and notice before the issuance of execution, the objection of defendants ought to have been sustained. The proceedings in this case, however, were expressly authorized by sections 8 and 9, Acts 1853, p. 357, and section 4, Acts 1860, p. 441, being part of defendant’s charter. Provision is made by these sections for authorizing the circuit court to render judgment for the damages assessed without notice or motion as required in section 3, supra.
3 _. 5udg. ass'esTm1en°to1 aamages.
■ It is also objected that the court erred in not regarding the $75 deposited by defendant with the clerk of the circuit court on the report of the first set of commissioners, as a payment made by defendant, which plaintiff was bound to accept. Plaintiff- was under no obligation to accept the amount thus deposited, but availed himself of a right given him by law to refuse to accept it, and file his exceptions to the assessment and report. He could not accept the money thus deposited, thus recognizing the correctness of the report, and at the same time file exceptions and ask the court to *640nullify the report awarding it to him. He chose to do the latter. His exceptions were sustained and the report set aside, after which he could assert no'right to the $75 deposited by defendant in virtue of it. As to plaintiff at least, the report of the first commissioners, when set aside, became a nullity, and his measure of compensation for the land taken by defendants was dependent upon the action of the second set of commissioners. In their report they awarded him damages in the sum of $175, which he was entitled to receive, and the company was bound to pay if it persisted in appropriating to its use plaintiff’s land. While defendants have had the occupancy and use of plaintiff’s land since 1871, it is clear from the evidence that they have not paid the price which they were required by law and the judgment of the court on the report of the commissioners filed February 22nd, 1872, to ¡Day as a compensation therefor.
é __. equita. 'ofeiándntakenPanl not paid for.
We think it also clear that the insolvency of the Chicago & Southwestern Railroad Company was sufficiently established by the evidence, and that plaintiff' exhausted all the statutory remedies provided for the enforcement of his demand against said defendant, without avail. Without having done this the plaintiff might well have asked the injunction on the principle enunciated in section 1,231, 2 Story Eq., where it is said “ that it has recently been decided in England that the owner of land taken by a railway for the purpose of its construction, still retains a lien upon the land for .the price, even after the railway has gone into operation, and that a court of equity will enforce such lien against the company taking the land and all others in the exercise of their functions as lessees or otherwise. The learned judge, Lord Romilly, said: ‘It is true that the rights of the public should be considered in these cases, but the company cannot take property without paying for it, and then say it is for the interest of the public that the property should be used by them, and so deprive the vendor *641of his lien. The public can have no rights springing from injustice to other's.’”
5 _. injUn0. payment of°damages'
The plaintiff’ having fruitlessly appealed to the statutory methods of relief has brought his case within the principle of the case of Evans v. Mo., Iowa & Nebraska R. R. Co., 64 Mo. 453, where, after an exhaustive examination of the subject, it was held that when a land-owner, whose land had been condemned, for the use of a railway, had exhausted his statutory remedies, the company condemning the land being insolvent, he was entitled in a proper proceeding to payment of the amount awarded him as damages or compensation, or in default thereof to an order restraining the company from operating the road on his land. Eor the reason that no time was prescribed in the final decree within which defendants might pay the price of the land before the consequences of default should fall upon them, they have not had the full benefit of the rule laid down in the case of Evans, supra. It is true that in the interlocutory decree rendered by the circuit court, defendants were required to pay the damages assessed to plaintiff on or before the first day of the next term of the court, hut from this decree, it not being final, defendants could not appeal, and the effect of complying with it would have depi’ived them of appealing from the judgment of the.court requiring them to do the very thing they were contesting, and upon which they had a right to the opinion of this court.
We think, for this reason, the decree rendered should be modified so as to make it conform to the principle announced in the Evans case, and without remanding the cause will order such decree as ought to have been rendered in the court below. We, therefore, order and direct that a decree be entered to the effect that defendants pay to the clerk of this court, for the use of plaintiff, the sum of $175, with six per cent, interest thereon from the 22nd day of February. 1872, amounting, principal sum and interest, to the sum of $251, and all costs, on or before the 1st day of *642August, 1879, and in case default is made in said payment, defendants shall be enjoined and restrained from operating their road over the land of plaintiff:’ described in his petition, and the clerk shall, in ease of such default, issue a writ restoring the possession of said land to plaintiff; that upon payment of said sum and costs, plaintiff shall enter satisfaction of said judgment, and the right and title of plaintiff to said land shall vest in defendants.
All concur.Judgment, as Modified, for Respondent.