North Missouri Railroad v. Lackland

1. A proceeding instituted in a circuit court in behalf of the North Missouri Kailroad Company, under its charter, to obtain a condemnation of land upon which it had located its railroad, is a proceeding in which the court acts in its ■ judicial capacity; an appeal will lie to the Supreme Court from the final TTi/d mnorvf' +1m^ ninmiil ooni'l in on/-»!-» yw/-\r>0£»fli'n <V 2. Quere: Whether it would he competent for the legislature, in providing a mode for the condemnation and appropriation of private property to public uses, to make the judgment of a special tribunal final, and thus place the matter beyond the control of the courts. 3. The North Missouri Eailroad Company instituted proceedings under its charter to obtain a condemnation of land upon which its railroad was loca' ted; held, that said company might, at any time before final judgment in such proceeding, change the route of the railroad and dismiss the proceeding.

Appeal from St. Charles Circuit Court. This was a proceeding instituted by the North Missouri Railroad Company to obtain the condemnation, for the use of said company in the construction of its railroad, of a lot in the city of St. Charles belonging to defendant, Norman Lackland. No petition was filed in the office of the clerk of the circuit court, but an agreement under seal was entered into between the parties, whereby three commissioners or viewers were appointed, to whom the question of compensation was referred, and who were by said agreement authorized to assess the value of the property taken, in like manner and with like effect as if they had been duly appointed under the terms of the charter by the judge of the circuit court, and to make report of their proceedings, upon which action might be taken in the circuit court in like manner and with like effect in all respects as if proceedings had been regularly commenced in the mode prescribed in said charter. This agreement was dated September 12, 1855. On the 24th of September, 1855, the viewers or commissioners filed their report in the clerk’s office of the court, awarding to defendant damages in the sum of 14200. To this report no exceptions were at any time filed by the plaintiff, North Missouri Railroad Company ; but on the 23d of October, 1855 — being the second day of the term of the circuit court next after the filing of said report — the company, by its counsel, asked in open court á dismissal of the proceedings; which was thereupon ordered. Defendant’s counsel was not in court at the time, and no objection was offered to the dismissal. No motion or other action had then been taken in the case since the filing of the report. On the 30th of October, 1855, being at the same term of court, defendant’s counsel moved the court to reinstate the case; which was done — the plaintiff’s counsel not being present and no objection being offered. At the same time the defendant moved the court to confirm the report of the viewers or commissioners. The case as it then stood was continued to the May term, 1856, at which term the plaintiff filed a motion to dismiss the cause because its railroad had been removed from defendant’s land, and was in process of construction on other land than that of defendant; and further, that the land of de fendant was not required and could not be used for any of the corporate purposes of the company, and that the plaintiff could not therefore acquire and hold any title to the same under this proceeding. It appears from an agreed statement, that, at the time of the appointment of commissioners and of the filing of their report, the location of the North Missouri Railroad was upon the land of defendant; but after the report was filed a resurvey was made by plaintiff, which resulted in locating the road upon another route not upon defendant’s land; and thereupon the plaintiff abandoned the route over defendant’s land, and directed the discontinuance of all pending proceedings for the condemnation of land on the route which went over de-' fendant’s land. The court overruled this motion to dismiss, and sustained that of defendant to confirm the report of the commissioners, and gave judgment against the plaintiff for the amount assessed by the commissioners, and by its decree vested the title to the land in the plaintiff. The court overruled a motion for a review made in behalf of plaintiff; whereupon plaintiff appealed to this court. I. In proceedings such as the present the relations of the parties are not changed, nor does any new right become vested in either party until the rendition of the judgment. Proceedings of this kind in this country are not as in England in the nature of a “ compelled contract” of purchase and sale. The various acts of Parliament prescribe the following steps: 1st, the railway company must, in its application for a charter, designate the lands over which the proposed road is to run; 2d, being authorized by the charter to purchase the lands designated, and failing to agree with an owner, the company must give him notice that it requires his land, and offer him a fixed price therefor; if no price be offered with the notice, the latter has no validity; 3d, the owner must respond, stating the particulars of his title, and either accepting the offer, or declining it with a counter proposal; 4th, if thus far the parties do not agree, a jury is empanelled to decide between the respective propositions of the parties ; 5th, upon the rendering of the verdict this is registered as a deed of conveyance from the land owner to the corporation. Every step from the first to the last is part of a formal negotiation between seller and purchaser, resulting in a transfer for a price and not for “ compensation.” (See Chambers and Peterson on Railways, 174.) Accordingly, the English courts hold that the relation of vendor and purchaser may exist at various periods anterior to the verdict, and that consequently the rights of the parties will have become vested at such periods. These decisions are all based upon the fundamental theory that Parliament, in its omnipotence, constituting and declaring itself an agent of the land owner, bargains and sells his land to a party competent to bargain and buy. The first move in the negotiation is the charter, which specifically designates certain lands, and on behalf of the owners offers them to the company as a proposed purchaser. In this country, however, the whole theory and system are essentially different. Although, perhaps, not precisely analogous, there is at least the same extent of difference between the two systems that appears between acquisition by voluntary contract and acquisition by confiscation. The proceedings here are based upon an implied constitutional power in the state of “ taking” private property for public purposes, provided that compensation be made therefor. No negotiation is implied in any of the statutory provisions. No state or federal court in the Union lias yet regarded these proceedings as presenting, at any stage, the elements of a contract between the parties. No legislature in the confederacy has power to compel a man to sell and convey his property to a person or corporation as such. The British Parliament may and does do so. Accordingly, it has been found necessary to do in this country, what was never done in England, to-wit, to settle by adjudication that the construction of a railroad is a “ public purpose” and within the meaning of the constitution. Thus all the American adjudications, without exception, treat these proceedings upon the following theory : 1st, the legislature has a right to take the property of the individual under certain restrictions and to declare how it will exercise that right; 2d, when the mode so asserted by the legislature has been fully acted upon, it is then assumed that the state has “ taken” the property; whereupon the owner has a vested right to compensation thefe-for, whether the state afterwards makes any use of the property or not. Accordingly, in all the New York, New Hampshire, Massachusetts and Missouri cases, where at any stage of the proceedings the right of the public to discontinue was denied, it will be found upon examination that all the acts by which the legislature had previously declared it would “ take” the property had been consummated. The case in 20 Johns. 269, which may be an apparent exception to this, was after-wards overruled by the same court in the case of The People v. City of Brooklyn, 1 Wend. 322. (See Wilkerson v. Buchanan County, 12 Mo. 328; Sess. Acts, 1839, p. 107; 2 Mete. 558; 4 New Hamp. 517; St. Erangois County v. Peers, 14 Mo. 537; St. Erangois County v. Marks, 14 Mo. 539; Harrington v. Commissioners of Berkshire, 22 Pick. 563.) But while, in all the above cited cases, every thing prescribed by the legislature for the taking of the property had been done as required, in the present case the distinctive feature is presented, that one of the prescribed steps, and that too which is expressly appointed to inaugurate the new relations of the parties, had not been taken when the right to discontinue was asserted. The land owner’s right to compensation can not, in any event, vest before that of the public to the land. Wherever any thing has remained to be done under the charter of a railroad company or a statute, and a discontinuance has been asked for, it has not been denied, but granted as a matter of right. In other words, if the law under which the proceedings were instituted required a judgment at their conclusion, then the public had a right to discontinue at any time before that judgment was entered. (See Hudson River R. R. Co. v. Cutwater, 3 Sandf. Sup. C. 689 ; People v. City of Brooklyn, 1 Wend. 332 ; Canal Street case, 11 Wend. 154; 6 Johns. Ch. 49 ; Laws of N. Y. 1848, p. 39.) A review of all the adjudications, therefore — as well those in which the right to discontinue was denied as those in which it was admitted — discovers a uniform adherence to the following rules: 1st, the right of the public to discontinue proceedings and abandon the contemplated roadway is unquestionable until rights shall have vested in the parties, whereupon it ceases; 2d, the right of the owner to the ascertained compensation vests whenever the public acquires the right to use the property, and not before; 3d, the right of the .public to use the property vests when all the acts pointed out by the special statute — whether that includes a judgment or otherwise— have been consummated, and not before. The recent case of Walther v. Warner, (see ante, p. 277,) has given to these rules a more rigid application, in effect, than that here contended for. The provision of the charter, that upon the filing of the commissioner’s award the court “ shall enter judgment,” &c., is merely directory. (Hudson R. R. Co. v. Out-water, 3 Sandf. S. C. 689; see also Sess. Acts, 1855, p. 233, § 3 ; Underwood v. Lilly, 10 Serg. & Raw. 151; 9 Barb. S. C. 482 ; 6 Barr. 196 ; 2 Dougl. 197 ; 12 Sm. & Marsh. 347 ; 2 Watts & Serg. 251; 3 Denio, 382; 6 Cranch, 87; Sess. Acts, 1858, p. 133, § 23, p. 144, § 56; Hoffman v. City of St. Louis, 15 Mo. 651.) II. An appeal will lie to this court from the judgment of the St. Charles circuit court. The proceedings were before tbe court as a court, and in this respect this case may be distinguished from that of The Hannibal & St. Joseph R. R. Co. v. Morton, 20 Mo. 70. The present appeal — being excluded from the practice act of 1819 by article 80, § 6 — is governed by the revised code of 1845 (see R. 0. 1845, p. 831, § 11), which covers “ any final judgment or decision of any circuit court in any civil case.” I. It is necessary to a proper understanding of this case to consider the position of the parties if the charter of the company contained no power to condemn lands for the company’s use. That position would be, the land' owner on the one side with a title held in full property against all other men, and the company on the other needing the land, but with no power to obtain it without the owner’s assent. The only mode by which the company could obtain it would be by purchase, which in law includes every mode of acquiring land by a lawful act of the party. Every purchase necessarily involves, in some form or other, a purchaser acting in the purchase, and a vendor acting in the sale either by a voluntary act or by the efficacy of some proceeding in law in invitum held to be equivalent in its effect and results to the voluntary act. If the land owner refuse to assent, it is therefore impossible for the company to acquire the land. At this point the state, in its sovereign capacity and in the exercise of the right of eminent domain — subject to which the owner holds the land — steps in, and declares by enactment that the company, if certain terms be complied with, shall acquire the land. In this the state does not undertake to dispose of its own property, or to invest the company with its own title, but to dispose of, and invest the company with the title of an individual citizen. But this exercise of the right of eminent domain is limited by the constitutional requirement of just compensation to the owner; and the state therefore undertakes that a just compensation shall be paid him, and at the same time compels him to accept that compensation, and in consideration thereof to sell his land to the company. Nor does the state in this proceeding speak for and represent itself. Its mere assent to the acquisition of the land by the company would be of no avail to pass the title, for the assent of the owner, would still be wanting. When therefore, in the exercise of its paramount authority, the state declares that the company shall have the land- — and the company can obtain it only by purchase, and the purchase can not take place without the owner’s assent, and the state undertakes to give that assent — the state must be considered as representing the owner, and giving for him and in his name an assent, which, however compulsory on him, is in law regarded as his, which he can not question or repudiate, and the consequences of which he can not avert. The state represents him likewise in protecting his right to a just compensation. While it gives his assent to the sale, and thereby divests him of his property and transfers it to the company, it also demands and compels the payment to him of the compensation; and when this is done, the agency of the state in the matter ceases. In every light therefore the state is the representative of the owner, speaking and acting for him by fundamental right, and without any power in him to gainsay or prevent. Possessing this fundamental right and acting in this representative character, the state declares to the company that it may acquire the land upon the payment of a stun of money to be fixed by three commissioners appointed in a specified mode. This declaration being made in the only way the state could make it — that is, by a written law — there is, so far as the ownership of the land is concerned, an assent or agreement, in the most authoritative form known to our institutions, to sell the land to the company. Whether this be considered as properly and strictly the owner’s assent or agreement, as we contend, or as an act of confiscation on the part of the state not involving assent or agreement on his part at all, but directly in opposition to his wishes, and perhaps disregarding and overriding his actual dissent, matters not; for, if only the latter, it is certain that the state does not act for itself but for him, taking his land and exacting the compensation for it, paying the compensation to him, and then decreeing the land to the company. The sale following the confiscation — if that be the proper term — is without doubt with the state’s assent; which assent — being in relation to the owner’s property, and having the effect to securing his right to just compensation, and not for any affair or property of the state — must, in legal contemplation, be regarded in the same light as that of a trustee for his cestui que trust, or of a guardian for his ward. Here then is the assent of one party — the vendor — given by the state. What is the next step ? Nothing on his part, but some act on the part of the company desiring to own the land. What is that act ? Simply the presentation of a petition to a designated tribunal by the company, asking to be invested with the title to the land in the mode prescribed. This is, when reduced to its elementary form, merely an acceptance by the company of the terms on which the state has declared it may purchase the land. When this petition is filed, the other assent — that of the purchaser — is obtained; and at that moment a contract in solemn and authoritative form is entered into — the state, on the one side, speaking through an enactment — the company, on the other, through its petition ; the state,, on the part of the owner, agreeing to sell — the company agreeing to buy. From the moment that petition is filed the land and its owner are bound. He can not alienate the land so as to avoid the company’s right; he can not seriously impair its value without subjecting himself to the restraining action of the judiciary, if the company invoke it. He can not resist the progress of the proceeding to the conclusion authorized by the law. The right which the company acquires by filing the petition is a vested right; vested in the very commencement of the proceeding, and not capable of being devested if the terms of the law be complied with. It exists only in virtue of its agreement to take the land on those terms. The other party to that agreement is the owner, represented by the state, whose assent the state has already given. This right of the company, viewed in its legal aspect, is nothing more or less than a right to a specific performance of the state’s engagement on behalf of the owner. As this right can not exist, consistently with legal principles, in favor of one party and not in favor of the other, it follows that the owner may equally insist on a specific performance of the company’s agreement. Any other view places the owner at the mercy of the company, and renders him liable to interminable vexations; for there is nothing to prevent the presentation of one petition after another, and the dismissing of them, to any extent the company may see fit. The conclusion from the whole argument, therefore, is, that the company had no legal right, after filing the petition, to dismiss the proceeding; and much less after the appointment of the commissioners and the filing of their report and the company’s failure to except to it within the time prescribed by the statute, which is equivalent to agreeing to it. This conclusion is in accordance with the tenth section of the charter of the company, which requires that if no valid objection be made to the report within ten days after it is filed “ the court shall enter judgment,” &c. Up to this point the argument has proceeded upon the assumption of an assent by the owner, given by the state for him, and in law regarded as his in effect, whether actually so or not. But this assumption is not indispensable to sustain the position that the filing of the company’s petition was a contract on its part to take the land. The law recognizes contracts where the obligor is competent but the obligee is not, and enforces such contracts— as in the case of infants — where they are for the benefit of the obligee. If, in the case in hand, it be held that there was no contract or assent on the part of the owner, still there was a contract on the part of the company in his favor, which the law will, and should, enforce. (The King v. Commissioners, &c. 4 Barn. & Adol. 383 ; The King v. Hungerford Market Co. 4 id. 327 ; Doo v. L. & C. Railway Co. 1 Engl. Railway cases, 257 ; Stone v. Com. Railway Co. id. 375 ; Tawney v. Lynn & Ely Railway Co. 4 id. 615 ; Walter v. Eastern Counties Railway Co. 6 Hare, 594; Burkinshaw v. B. & O. J. Railway Co. 4 Engl. L. & Eq. 489 ; Regina v. B. & O. J. Railway Oo. 15 Q. B. 634; 4 Eng. Law & Eq. 276; Pinchin y. L. & B. Railway Co. 5 De Gex, Macnaughton & Gordon, 851, 864 ; Wilkerson y. Buchanan County, 12 Mo. 328 ; 85 Brit. Stats, at Large, 141, 146.) II. This proceeding can not be regarded as an action at law or a suit in equity. It is a special statutory proceeding for effecting a particular object in a prescribed mode. The court in the execution of the special powers conferred upon it could do no more than the statute under which it acted authorized. The charter of the company did not authorize the court to dismiss tiffs proceeding on the motion of the company; it could not therefore legally do it, any more than without statutory authority it could render judgment against the company for the damages assessed or decree the land to the company. (Matter of Beekman street, 20 Johns. 269.) III. This not being an action at law nor a suit in equity, no appeal lies to this court. The charter of the company gives no right of appeal, and the general law in regard to appeals — the practice act of 1849 — does not reach this case. (Hannibal & St. Joseph R. R. Co. v. Morton, 20 Mo. 70.) IV. The third section of the act of December 12, 1855, (Sess. Acts, 1855, Adj. Sess., p.-,) did not confer the right to dismiss the proceedings. Whatever rights had been previously acquired could not be affected by it.