Taylor v. Pettijohn

Walker, J. The question presented by this record is, whether the plaintiffs in error could justify their entry upon the land of defendant, under the proceedings had to condemn the right of way by the railroad, and to assess the damages for the same. The proceedings were had under, and in conformity to, the provisions of the act of 1845 (R. S. 477), entitled, “ Right of way.” It is urged that the company were bound to proceed under the act of June 22,1852, (Scates’ Comp. 481), which is entitled “ An act to amend the law concerning the right of way, for purposes of internal improvements.” This latter act is entitled as an amendatory law, and in terms repeals no portion of the former act. This being the case, only such portions were repealed as were repugnant to the provisions of the latter statute. Every portion of the first act, which is not in conflict with the latter, is still in force. In the case of Austin v. Belleville and Illinoistown Railroad, 19 Ill. R. 310, this court recognized the act of 1845 as being in force and unrepealed Although we might hesitate to hold that the road might proceed to condemn the right of way, and assess damages under the act of 1845, independent of their charter, yet it, we think, confers that right. The charter of the company, under which plaintiffs in error seek to justify, authorizes the company, in acquiring the right of way, to proceed under the act of June 22,1852, or in the manner and upon the principles provided by any other act that may have been, or may thereafter be passed by the General Assembly, to enable railroad companies to appropriate lands for the use of such roads. This provision is broad and comprehensive in its terms, and undoubtedly embraces the act of 1845, it being the only general act adopted for that purpose, prior to the act of 1852, and no other previously passed, could have been referred to by the General Assembly. Their charter authorizes them to proceed in the manner, and upon the principles of this act, and it is not objected that there was any failure in respect to either. The commissioners were appointed by the proper officer, took the required oath, the owner had notice of the proceeding, the commissioners assessed the damages, and they were tendered to and refused by the owner. He acquiesced in the proceeding, took no appeal, and did no act to avoid its effect. This proceeding must therefore be held to justify the entry of the employees of the company, for the purpose of constructing the road. The court below therefore erred in rendering judgment against plaintiffs in error, and it must be reversed, and the cause remanded. Judgment reversed.