Chicago, Santa Fe & California Railway Co. v. Eubanks

Praetice: condemnation proceedings : report op commissioners ' AND EXCEPTIONS TO : CONSTRUCTION OP SECTION 896, REVISED statutes. The statute relating to proceedings of condemnation for right of way, etc., (R. S., sec. 896) has the following as to the report of commissioners: “Upon the filing of such report of said commissioners, the clerk of the court, wherein the same is filed, shall duly notify the party whose property is affected of the filing thereof, and the report of said commissioners may be reviewed by the court in which the proceedings are had on written exceptions, filed by either party in the clerk’s office within ten days after the service of the notice aforesaid.” Held that the requirement of the statute is, that the exceptions should not be filed at a later period than ten days after service of the notice; but not that the exceptions could not be filed until after the notice was served. Whether the exceptions are placed on file, before or after the service can make no difference.

Appeal from, Chariton Circuit Court. — Hon. G. D Burgess, Judge. The case is stated in the opinion. (1) The requirement of the statute that exceptions must be filed within- ten days after the service of notice upon the defendant of the filing of -the commissioners’ report, fixes the limit of time beyond which exceptions cannot be filed, and nothing more. It was really intended to compel prompt action on the part of the defendant, while giving him a reasonable time within which to file exceptions. It cannot, within any degree of fairness, be construed to mean that the railway company is obliged to wait until after the defendant is notified of the filing of the report before filing its exceptions thereto. Such a construction is strained and unreasonable. If excessive damages have been awarded, the wrong is done the railway company the moment the report of the commissioners is filed. Its right to except to that report accrues at that moment. It can file its exceptions at once, or it may wait, if it so desires, until just before the expiration of the ten days after the service of notice upon the defendant of the filing of the report. Longer than that, it cannot wait. The statute is one of limitation, beyond the time provided by which exceptions cannot be filed by either party. Either party, however, may file exceptions at any time after the report of the commissioners is lodged with the clerk officially. (2) The exceptions once filed, the law would hold to be re-filed, if necessary, after notice served upon the defendant, without a new endorsement by the clerk. They were lodged with him officially on the fourteenth day of June, 1887, and continued to be in his official custody during the entire period of ten days after defendant was served with notice of the filing of the commissioners’ report. It would be a meaningless ceremony to require him to mark upon the exceptions a re-filing after such date. The law does not compel any such course by the clerk, nor does it impose upon the railway company the duty of withdrawing its exceptions from the office of the clerk, and tendering the same to him to be filed anew, after such service.of notice, under penalty of having its exceptions disregarded. (3) The affidavit of the clerk shows that defendant had due notice of the filing of the exceptions, and that this notice was given within ten days after defendant was served with notice of the award. This act of the clerk in notifying defendant that exceptions had been filed had the effect of re-filing the exceptions. (4) The following authorities amply sustain the positions which are here taken. Atherton, Adm'r, v. Corliss, Ex’r, 101 Mass. 40; Young v. The Orpheus, 119 Mass. 179 ; Levert, Ex'r, v. Read, Ex'r, 54 Ala. 529. In an argument of counsel in another case, approved and adopted by the court in its opinion in the Levert ease, the following’ passage occurs : “Mr. Webster’s first definition of this word (within ) is : ‘In the inner part ’ ; his second definition is : £ In the limit or compass of, not beyond, used of place and time ;’ his fifth definition is ‘not later than.’ The first or primitive meaning would not make any sense in this statute. But ‘ not beyond,’ ‘not later than,’ clearly defines the intent of the law-makers, which was to fix a time after which claims could not be filed.” The judgment ought to be reversed and the cause remanded in order that a hearing may be had upon the merits of the exceptions. “ When time is spoken of, any act is within the time named that does not extend beyond it.” Sanborn v. Ins. Co., 16 Gray, 448, 455. (1) In the condemnation of land for right of way of a railroad, the powers possessed by a judge or court in appointing commissioners, reviewing and setting aside the report, etc., are purely statutory, and the powers must be exercised at the time and in the manner provided by the legislature. Gray v. Railroad, 81 Mo, 125; Railroad v. Campbell, 62 Mo. 585; St. Louis v. Gleason, 93 Mo. 33. (2) Statutes giving the right of eminent domain are not to be extended, but must be strictly construed. 1 Wood’s Railway Law, 643.. Statutes giving the right of eminent domain must be by unequivocal words and in pursuing it all prescribed requirements must be strictly observed. 1 Wood’s Railway Law, 643, and note ; Matter of the City of Buffalo, 78 N. Y. 362 ; Matter of Commissioners of Washington Park, 52 N. Y. 131; Van Wickle v. Railroad, 3 N. J. Eq. 162; Mills on Eminent Domain, sec, 87. The condemning party must strictly follow the statute. Commissioners r>. . Railroad, 21 Conn. 294. ' See, also, as to strictness of the law in. regard to notice: 1 Redfield, 255; Rutenberg v. Railroad, 21 Pa. St. 100; Williams v. Railroad, 13 Conn. 110, (6) The appellant, in its brief, cites no case in which land is attempted to be taken, in invitum, and cannot have any application to the case at bar. (?) The appellant cannot contend that defendant, either by himself or his attorney, waived any right he may have have had, by writing’ to know whether the award had been made, or exceptions filed. The act of the clerk in writing that exceptions were filed, could not have the effect of re-filing them, when, in fact, he did not re-file them, as the record shows. The case must stand or fall by the record.