Union Depot Co. v. Frederick

Sherwood, J.

(dissenting). — The plaintiff corporation asked and obtained a perpetual injunction against Frederick, restraining him and his co-defendant, the sheriff, from having a writ of possession executed against the Missouri Biver, Fort Scott & Gulf Railroad Co., for a certain piece of ground for which Frederick had obtained judgment in ejectment in 1875, against .said railroad company. In 1877, the Union Depot Co. was organized and had condemned, as it is claimed, a portion of the land thus recovered by Frederick, and upon the basis of these condemnation proceedings the injunctive relief was asked and obtained.

The case of plaintiff was presented by a petition which incorporated a recital of Frederick’s suit and recovery of the land mentioned, and of the condemnation proceedings.

*157Frederick filed a general demurrer; but the court below held the petition sufficient, and refusing to plead further, a final decree was entered making the injunction perpetual, and upon this decree Frederick brought, eri’or.

I. The condemnation proceedings, spread forth at large in the petition of the plaintiff corporation, form the only basis upon which the right of that corporation to injunctive relief can be maintained; and the sufficiency of those proceedings is questioned by the general demurrer filed.

It becomes necessary, therefore, to examine those proceedings with care, in order to be able to reach a correct conclusion. Various grounds are stated to-show that such proceedings did not conform to the law in such cases made and provided; and, among them, that Frederick, defendant, a non-resident, and yet joined with residents, is urged as being contrary to the statute, and fatal in its character. Chapter 66, General Statutes 3865., pp. 351 et seq., was the one employed in condemning the land in question, for depot purposes. Section 5 of that chapter, says: “Any number of owners, residents in the same county or circuit, may be joined in one petition, and the damages to each shall be separately assessed by the same commissioners.” Looking at that section alone, there Plight, perhaps, be plausible reason for the view taken in Railroad v. Kellogg, 54 Mo. 334, followed in Railroad v. Carter, 85 Mo. 448, that only residents of the same county or circuit could be joined in the same petition; but it does not do to confine one’s attention to a single section of a statute; the whole enactment must be looked to, and when this is done then determine what the meaning of each single section is when read with reference to its associate sections.

*158Pursuing this course in this instance, it will be found that section 2 of the same law authorizes the inclusion in the same petition of both residents, nonresidents and persons unknown. This being done, then under the provisions of section 5, supra, only those whose interests lie within the county or circuit, are to be made parties defendant. Believing this to be the correct view’ we disapprove of the ruling in the cases mentioned, on the point in hand.

2. Further, we hold that Frederick having twice appeared by attorney before the court during the condemnation proceedings, and having submitted himself to the jurisdiction of that court, this gave the court jurisdiction over him, as much so as if correctly served with process in the most unexceptionable manner. Hilton v. St. Louis, 99 Mo. loc. cit. 207.

3. And in this connection, it is well enough to say that proceedings had in the cause were judicial and not ministerial as urged by counsel for defendant. St. Joe etc. Railroad v. Hannibal etc. Railroad, 94 Mo. 535; Railroad v. Story, 96 Mo. 611; Lewis on Eminent Domain, sec. 614.

The proceedings being judicial would doubtless bind and estop the defendant, speaking in a general way, just as much so perhaps as any other judicial proceeding. Whether the defendant was thus bound in this case, is yet to be considered and determined.

4. The statute above mentioned which controls the present litigation, provides, among other things: “And shouldmore than one owner be included in the petition, then the damages allowed each shall be stated separately.” Sec. 5.

If the record discloses that there is but one tract of land, and several owners, or if the petition allege several owners and but one tract of land, the presumption seems to be in the absence of anything to the contrary *159appearing, that they are joint owners. Snoddy v. Pettis Co., 45 Mo. 361; but where two or more tracts of land belonging to different persons, are embraced in one petition, it is an absolute necessity that there should be a separate assessment for each tract. This point has been so ruled in Illinois under statutory provisions similar to ours. Railroad v. Christy, 92 Ill. 337.

Here, however, the case is different. At the very outset of the petition, Frederick is described as the owner of a certain tract of land, giving its description by metes and bounds, and the allegation is then made that he had recovered that land in an ejectment suit, and that his co-defendant Hope, the sheriff, was about to put him in possession of the land thus gained in the action of ejectment; a writ of possession having been issued for that purpose.- Then the allegation is made that the plaintiff corporation prior to the issuance of the writ of habere facias, had the land in question, or at least a part of it, condemned for depot purposes. But when the petition comes to give a description of the land of Frederick, aforesaid, there is no intimation that he had sold any part or interest in it to any one else; on the contrary, the theory of plaintiff’s petition, directed as it is against Frederick alone, is that up to the time the condemnation proceedings were had, he continued to be the owner of all the land for which he sued in ejectment. But this tract of land or a portion of it, by the' report of the commissioners, is strangely blended with another tract or tracts alleged to belong to Frederick and others, and the whole body of land-formed' by jumbling these tracts together, is thereupon by the commissioners assessed at the gross sum of $2937 34-100, and that sum as well as other sums aggregating nearly $50,000 was by the plaintiff corporation paid to the clerk-for the use etc.; but it is not alleged that Frederick had ever accepted any por*160tion of said sum thus assessed; and it is difficult to see how or in what way he could demand any particular portion of the gross sum so assessed. This incident demonstrates the practical wisdom of the law which the commissioners failed to observe.

It has been the repeated and continuous language of this court whenever speaking on the subject of the exercise of the right of eminent domain, that everything is essential which the law requires to be done; •that the power to take property for public use is a power summary in its method and harsh in its nature; in short a proceeding in invitum-, that this power being in derogation of the rights of the citizen, only finds justification on the grounds of absolute necessity; that ho presumptions are indulged in its favor, and consequently it must affirmatively appear on the face of the record that every thing required by the constitution and the law to be done, has been done, before the property of the citizen passes into the dead hands of the condemning corporation; otherwise those proceedings will be void. Shaffner v. City, 31 Mo. 264; Leslie v. St. Louis, 47 Mo. 447; Ells v. Railroad, 51 Mo. 200; Whitely v. Platte Co., 73 Mo. 30; Anderson v. Pemberton, 89 Mo. 61; City v. Gleason, 89 Mo. 67; Railroad v. Young 96 Mo. 39.

Treating of this point, an eminent jurist observes: “When, however, action is had for this purpose, there must be kept in view that general, as well as reasonable and just rule, that, whenever in pursuance of law the property of an individual is to be divested by proceedings against his will, a strict compliance must be had with all the provisions of law which are made for his protection ánd benefit, or the proceeding will be ineffectual. Those provisions must be regarded as in the nature of conditions precedent, which are not only to be observed and complied with before the right of *161the property owner is disturbed, but the party claiming authority under the adverse proceeding must show affirmatively such compliance. For example, if by a statute prescribing the mode of exercising the right of eminent domain, the damages to be assessed in favor of the property owner for the taking of his land are to be so "assessed by disinterested freeholders of the municipality, the proceedings will be ineffectual, unless they show on their face that the appraisers were such freeholders and inhabitants.” Cooley on Constitutional Limitations [6 Ed.], 648, 649 and cases cited.

In Railroad v. Sanford, 23 Mich. 427, the court says: “No one can fail to observe that a verdict giving a round sum as damages for a continuous strip of land crossing several parcels, does not accomplish anything whatever concerning the rights of the several owners. * * * Unless each separate holding is viewed by itself, the owner’s rights cannot be protected at all. * * * No man can be compelled to have his property exposed to such dealing. * * * He is interested in none but his own, and has a right to have his own rights passed upon and protected. He can not be compelled to yield up a right-of-way * * * until his compensation has been fixed. This can only be done separately, or at all events, by separate parcels. Rex v. Croke, Cowp. 26; Rex v. Manning, 1 Burr. 377 [page 428]. * * * And the result is that the verdict [which was a lump sum for several parcels], * * * has made no finding at all on the rights of the party appealing. The whole proceedings, so far as they concern the appellant, must be squashed, and if the company desire to obtain a condemnation of his land, they must commence new ones.” This case was subsequently approved in City of Owosso v. Richfield, 45 N. W. Rep. 129.

*162A recent author of recognized merit, in discussing the subject now under discussion says: “The jurisdiction exercised in condemnation cases is always of a special character. The proceedings are to be conducted according to a certain prescribed mode. It is plain, therefore, that, even after the court or tribunal has acquired jurisdiction in the case, errors may be committed which will render the proceedings void. The jurisdiction acquired is simply a jurisdiction to proceed to a final determination of the case in the mode provided by law. Any material departure from that mode will be fatal to the proceedings.” Lewis on Eminent Domain, sec. 603.

In Busch v. Railroad, 54 Wis. 136, there had been a judicial proceeding instituted in the circuit court to condemn land owned in severalty by Rusch and five others, and the proceedings appear to have been regular in every respect except that the commissioners awarded a gross sum as a compensation to all such owners, without specifying the sum to which each was entitled;. the railway paid into court the sum so awarded and the railway company located its road on the lands and operated its road thereon. Sometime thereafter, Rusch brought trespass against the railway company, and recovered judgment in the lower court, which was affirmed in the supreme court, solely upon the neglect of the commissioners as aforesaid. In that case it was earnestly contended that as the proceedings to condemn were a suit in court which had jurisdiction of subject-matter and person, that the right of Rusch was barred thereby. Speaking with reference to this state of affairs, Lyon, J., said: “It is not denied that the award of the commissioners in the condemnation proceedings fails to ascertain the compensation to which the plaintiff is entitled for his land which the defendant proposed to condemn to its use. The aggregate sum *163■only to which six owners in severalty were entitled was ascertained, and no rule is given and none exists by which the proportionate share of each can be ascertained. * * * Speaking no word and doing no act from which consent can reasonably be inferred, he might proceed to recover his damages or land at his leisure, within the limitations of the statute. * * * We think, and so hold, that the condemnation proceedings are at an end, and that, because they resulted in an award which fixed no rights and bound no one, they have ceased to have any effect for any purpose whatever, and the rights and liabilities of the parties .are the same as though the proceedings had not been instituted.^

This case was afterwards approved by that of Watson v. Railroad, 57 Wis. 332, but the latter case was distinguished from the former on the ground that the latter was one where a single parcel of land was •owned by a number of tenants in common, and it was held proper to make but one aggregate award of •damages for the whole tract.

In Brennan v. St. Paul, 47 N. W. Rep. 55, the •supreme court of Minnesota made a similar ruling, holding an assessment in gross of lots held in severalty, void, although the board had acquired jurisdiction, ■etc.

The case of Railroad v. Greve, 17 Minn. 322, was •one where Greve owned three tracts of land, which on appeal to the common pleas court were appraised at a gross sum, but the condemning corporation at the time the verdict came in made no objection, and it was held ■on appeal by the corporation, that such objection could not be taken in the appellate court for the first time. ’The court treated it as a mere question of practice, and refused to otherwise consider it. The like line of remark applies to the case of Knauft v. Railroad, 22 *164Minn. 173, -where there were several owners of several tracts, and one award in gross for all of the tracts. The land owners did not appeal; hut the corporation did, and no objection being taken by the corporation to the verdict when it came in, a similar ruliqg, as in the former case was made.

Collateral attacks on judgments or proceedings of condemnation, where jurisdiction has been fully acquired by the court or tribunal, are not at all infrequent. Thus, in our own state we have the case of Shaffner v. City, supra; and in other states the following: Inhabitants v. Abell, 127 Mass. 507; Wilson v. Lynn, 119 Mass. 174; McKernan v. Indianapolis, 38 Ind. 223; Pratt v. People, 13 Hun 664; Nichols v. Bridgeport, 23 Conn. 189; Judson v. Bridgeport, 25 Conn. 426. So far as we are able to discover from a perusal of the adjudicated cases, no difference is to be noted between instances where the condemnation is the result of judicial proceedings or those conducted without such formalities ; in either case the authorities seem to concur in holding that, if the ‘ ‘prescribed mode” be pursued, then the proceedings are impregnable to collateral attacks; otherwise, at least, in the great majority of instances, they are deemed void and of no effect, and of course must fall before such attacks. And at this point it seems appropriate to quote as specially applicable to the case at bar, a remark made by Hoar, J., in Glover v. Boston, 14 Gray, 282, an action of tort attacking collaterally condemnation proceedings. He said: “The appropriation of private property to the public use, which is one of the highest acts of sovereign power, should not be accomplished by the use of ambiguous or uncertain language. The presumption is in favor of the owner of the land, and any act done by public authority which interferes with his rights should be, as it always may be, clear and intelligible.;;

*165In concluding this paragraph, we hold that the several tracts of land aforesaid having been assessed at the gross sum of $2,937.34, such appraisement is void, and confers no title so far as concerns that particular appraisement.

5. But one point remains to be considered, the constitutionality of the statute. Session Acts, 1871, sec. 4, pp. 60, 61. The fee in this case was condemned, and the claim" is made that this section is opposed to the constitution of 1875, article 2, section 21, which provides that: “The fee of land taken for railroad tracks without consent of the owner thereof shall remain in such owner subject to the use for which it is taken.”

Section 4 of the act thus attacked reads as follows: 4 ‘Every corporation formed under this act, in addition to the general powers conferred by the laws of this state in relation to corporations, shall have power. First. To take and hold for the purposes mentioned in this act such real estate as they may acquire either by conveyance to said corporations and such as it may acquire under the provisions of this act by condemnation. Second. To take, occupy and condemn any lands and real estate needed for the establishment of such union station or depot, and the same proceedings shall be had therefor as provided in chapter sixty-six (66) of the General Statutes, relating to the appropriation and valuation of land taken for telegraph, macadamized, graded, plank or railroad purposes, so far as applicable thereto, and when so condemned, the said land and any interest therein shall belong to such corporation as owner thereof.”

It will be at once observed that the constitution, in the provision quoted, is confined to 4irailroad trades” alone, and does not in terms extend to lands condemned for depot purposes. The law on this point is *166stated by a text-writer heretofore quoted in this way: “In the absence of any constitutional restraint, it rests, with the legislature to say what interest or estate in lands shall be taken for pubic use. The whole matter thus being in the discretion of the legislature, it may authorize a fee to be taken, and necessarily may authorize any lesser estate or interest to be taken, according to its views of the requirements of the grantee and the demands of the public good.” Lewis on Eminent Domain, sec. 277.

But, if it can be conceded that the constitution forbids the taking of the fee even for depot purposes, still, in such case, the condemnation proceedings would not necessarily be void on that account; an easement at law would pass, and so this point has been ruled in regard to a statute which authorized the acquisition of an “absolute estate in fee simple” in the land condemned. Berry, J., in reference to this subject said: “The plaintiff further argues that section 13 is unconstitutional, because it provides that under the proceedings for condemnation the defendant shall acquire ‘an absolute estate in fee simple’ in the land condemned, whereas, it is-entitled to acquire.an easement only — ‘a franchise of way’ in the language of our constitution, article 10, section 4. The • answer to this position is that if the defendant could not, by reason of- any constitutional provision, acquire anything more than the easement, the effect of section 13 would be limited accordingly; and the defendant would be permitted to acquire not ‘an absolute estate in fee simple,’ but the easement only, the former, the greater, including the latter, the less.” Scott v. Railroad, 21 Minn. 322.

Even where there was no such prohibition as now exists in our organic law it was held that notwithstanding the term “fee simple” was used, yet, this was. not to be taken in a technical sense. Wagner, J., *167remarking: “It is true that in speaking of the title ■which the company acquire, the legislature here uses the term Tee simple;’ but did it contemplate a fee simple according to the technical legal meaning of the term? * * * The use is vested in the public, but the reversionary title still continues in the owner of the soil. In my opinion, notwithstanding the language used, nothing more than an easement passed to the road, giving it perpetual and continuous title so long as it used the land for the purpose for which it was taken, but, when the use was abandoned, then it would revert back to the owner of the premises.” Kellogg v. Malin, 50 Mo. 496.

For the reasons aforesaid, the judgment should ■ be reversed and the cause remanded.