Hill v. Glendon & Gulf Mining & Manufacturing Co.

Bukwell, J.: The provisions of section 1944 of The Code seem clearly to indicate that in a proceeding under that section, all parties “ who own or have, or claim to own or have estates or interests” in the land over which a right-of-way is sought to be condemned, shall be brought before the Court, to the end that all the persons interested in the assessment of the damages may be bound by the action of the commissioners, who will find what gross sum, if any, is due to the owners, and that they may all be heard when the Court comes to apportion the sums between the several owners, according to their respective interests or estates in the land. The petition, whether filed by a-n owner or by the company, should state the names of all persons interested, and all of them should be in Court before the commissioners are appointed. The petition filed by the original petitioners, Thos. N. Hill and his children, alleged that these children were the owners in fee of one undivided fourth part of the land described in the said petition, the father having a life-estate in that part. That Mrs. L. J. Manning, wife of John Manning, owned one undivided fourth part in fee; and that M. A. Southerland owned an undivided half in fee; and that A. P. Gilbert had a lease for five years on all of the tract. Here we have a *264 careful compliance with the provisions of the statute, a full enumeration of all those who owned any interest or estate in the premises. And this enumeration of the owners of the land was accompanied by the statement of the petitioners, made on information and belief, that Mrs. Manning and M. A. Southerland, who together owned three-fourths of the land, had conveyed to the railroad company a right-of-way through the premises. It thus became evident that, ill order to have a complete determination of the matter, it would be necessary to bring into Court not only the defendant company, from whom alone the plaintiffs sought damages, but those other owners. They might well have been made defendants originally, but they have come in and been made petitioners, and thus all parties interested are present, and will be bound by what is done in the proceeding. The position taken by the defendant company that there was a defect of parties when the petition was first filed is untenable. What the petitioners wished was to have their damages assessed and paid. It is not their concern to inquire whether or not the company had come to an agreement with their co-tenants and the tenant for years, and' had settled with those parties. In their petition they gave to the Court and to the defendant information about the other persons who had an interest in the premises, as, under the statute, they were required to-do. If the defendant had settled the matter with those other parties, it had but to say so in its answer, and ask that the commissioners should only report the sum due the petitioners; or if it had not settled the matter with those parties, it was its privilege to ask the Court to have them brought in, that a complete determination of the matter might be had.'- ' But whatever may be thought, about the propriety or necessity of their being original parties, it is surely sufficient that before defendant’s demurrer was filed they all voluntarily came into Court and made themselves parties. ' No sug- *265 gestión is made that there is anyone who claims any estate or interest in the land that is not now, and was not when the demurrer was filed, a party. Therefore, there can be no defect of parties. What the rights of the respective individuals are'is another matter that will be hereafter determined. The position of the defendant that the petition does not state a cause of action is equally untenable. If, as petitioners say they are informed, the defendant has acquired by agreement with the other parties a right to use and occupy for its purposes their shares (three-fourths) of the land covered by the “right-of-way,” it will not be required by the final judgment in the cause to pay any damages to those persons. Under the ample provisions of sections 1947 and 1949 of The Code the rights of all the parties can be ascertained and adjusted in this one proceeding. The whole damage to the land may be estimated, and it may then be determined, by reference or otherwise, how much of the gross sum the defendant owes; or what proportion of the right-of-way has been acquired, if any, by contract, may be first ascertained, and the damages or compensation due to the parties who have not been paid may be found and reported by the commissioners. It was argued before us that the legal effect of the deeds from John Manning and wife and M. A. Southerland to the defendant is such that the original petitioners cannot maintain this proceeding under section 1944 of The Code, and that at any rate, Mrs. Manning and M. A. Southerland cannot join in this petition for the assessment of damages, for the reason that, at the date of the filing of the original petition, according to the statement of those parties contained in their interpleas, the defendant had not lost its title to the right-of-way acquired from them by it. It cannot, we think, be seriously contended that the owners of one undivided fourth of a tract of land, through which a railroad is constructed, can be deprived of their right to have *266 the damages due to them assessed under the provisions of section 1944, by the purchase by the railroad company of the rights of one of the other tenants in common. And the right of all the parties in the damages for the taking of the land, whether those rights continue as they were at the time the petition was filed, or are changed and modified by subsequent events, can all be adjusted under the provisions of sections 1947 and 1949. As another cause of demurrer the defendant insists that the petition does not state (as it says it should) that the petitioners were unable to come to an agreement with the defendant as to the sum to be paid by it to them for the taking of their land. This was not necessary. The statute requires the railroad company, when it becomes the actor in such a proceeding, as it may, to state that fact as its justification for summoning to Court a citizen whose land it wishes to take by condemnation. But when the citizen merely seeks pay for his property that has been taken from him under a license from the State, the law does not impose upon him the necessity of asserting that he and the taker of his property have not agreed. His proceeding is in itself an emphatic asseveration to that effect. What has been said seems to us sufficient to cover all the grounds of demurrer. We find no error in the rulings of his Honor, and the cause is remanded, to be proceeded with according to law. No Error.