Railroad v. Boyer

The opinion of the court was delivered by Coulter, J. The proceeding must be at the instance and suggestion of the owner of the land; because such is the distinct requirement of the statute. But it was so in the case on hand. The widow Luther was the owner when the damages were occasioned, and they survived by our statute to her personal representative. The heirs or rather devisees of her deceased husband joined in a release or conveyance to her during her life of the locus in quo, for a good and sufficient consideration, and the executors of the testator joined in the release. In consideration whereof she released to the estate of the testator, another piece' or parcel of land, which was devised to her for life, of equivalent value. It was in fact a family compact and arrangement for the benefit of all interested. The part devised to the widow for life it was thought was more marketable than its equivalent, released and conveyed to the widow by the devisees and executors, and the widow was willing to take it in lieu of the other. Such arrangements being for the benefit of all, and to the injury of none, are favored by the law as an adjustment of the family for their common benefit. It was a good and valid arrangement, and vested the ownership of the land in the widow during her life. The remainder men had an interest also, and were owners of the premises in the sense of the statute so far as their interest was injured. The widow and those entitled in remainder for life might have joined in a proceeding, and then the whole damages to the entire fee could have been assessed. I will not say, because it is unnecessary and not involved in this case, whether the amount of compensation due to the life tenant, and the amount due the remainder men, ought in such case to be assessed separately, or whether the whole ought to be assessed together, leaving the division to the parties entitled according to their respective interests. But although they may join, where there are several interests, either in common and in present existence, or some of them in future and expectancy, yet it follows not that they must. Because, one might be baulked by the obstinacy of the others, or by their being bought off, or by their releasing, or because they did’nt choose to proceed. It is of no force to allege that the defendants committing the damages may thereby be put to more expense, by several proceedings. But those who inflict injury ought not to be [501] solely regarded. Those who suffer by the invasion of their private property are entitled to more consideration in the adjustment of the remedy to their condition and circumstances. All parties are to be considered and the remedy applied so as to do justice to all. We think the objection to the proceeding by the life tenant, for the damages done to her interest alone, fails. She was entitled to that remedy. If there was any substance in the objection it ought to have been taken at an earlier period of the proceeding. It being a general rule that in all actions not of contract, and proceeding on the ground of ex delieto, and one who ought to be named is omitted it can only be taken advantage of by plea in abatement; otherwise the damages will be apportioned on the trial. The damages here were apportioned, the widow claiming only for the damages done to her interest, and being assessed only to that extent. Railroad vs. Bucher, 7 Watts 43, were cited by the plaintiff in error. It only determines that one tenant in common could not recover in his own name entire and full damages, which were assessed. The inference from the case is irresistible that he could have recovered in his own name for his own share of the damages. The whole of that case sustains this proceeding instead of impairing it. The other cases cited do not bear on the points, at least in no way unfavorable to the principle here ruled, that is, that joint owners of the fee may proceed jointly. But that the owner of a life estate may proceed in his own name, for damages done to his interest. Judgment affirmed.