Lee v. Northwestern Union Railway Co.

Dixon, 0. J. The language of the statute (Laws of 1872, ch. 119, sec. 17) is very general, that “any partj^ may appeal to the circuit court,” and it is impossible, we think, to limit it so as to exclude the railway company from the right of such appeal. We regard it as very plain that the legislature intended the company, as well as the land owner, should have the right; else such broad language would not have been used. And we see no constitutional objection to the granting of such appeal to the company. It is true, where the company takes an appeal, it may compel the land owner to go into the circuit court, there to litigate the question of damages to be paid for the land taken ; but that is not compelling the owner to sue for compensation, in the sense of those decisions which hold that a mere right of action given him is not compensation according to the mandate of the constitution. Appealing to the court, and obtaining an assessment of the damages by the verdict of a jury, is a constitutional mode of ascertaining the compensation to be made for private property to be taken for public use; and we never before heard of its validity being questioned. And the payment of the compensation so finally ascertained and adjusted is, or will be, a condition precedent to the right of any permanent use or occupancy of the property by the public, or by any corporation in whose behalf the power of eminent domain has been exercised. There is or may be as strong reason why the railway company should be permitted to contest the question of damages in the courts as that the [225] land owner should, and we see no good ground upon which to deny the legislative power to give the company such right. The question whether the railway company waived or abandoned its appeal, or deprived itself of the right of taking and prosecuting it, is not raised by the affidavit which was presented as the foundation of the motion to dismiss the appeal. The affidavit does not show that the company has entered upon and appropriated to its own use any part of the land mentioned in the appraisal of the commissioners from whose award the appeal was taken by the company. It does not show that the company has entered into the possession of any part of the land proposed to be taken for public use, and which the commissioners were'Called upon to appraise. The language is, that the company did “ enter upon and appropriate to its own use, against the consent of the owner, a certain portion of the above described land, without paying the value of said land so appropriated, or in any manner tendering payment therefor. ” The “ above described land ” in the affidavit is all the land owned by the plaintiff, Caroline J. Lee, and not that part of it against which condemnation was sought. It can not be said, upon the facts shown, therefore, that the company has done anything to waive or cut off its rights, even if entry upon the land sought to be condemned, without consent of the owner, before or after appeal taken by the company, could be said to have that effect. By the Court. — Order affirmed.