Conger v. B. & S. W. R.

Day, J. — I. In Richards v. The Des Moines Valley Railroad Gompaivy, 18 Iowa, 259, it was held that a railway company which neglects and refuses to pay the compensation adjudged to be due the owner of lands for the right of way over them, maj’- be restrained by injunction from using such way. In Daniels v. The Chicago & Northwestern Railway Company, 35 Iowa, 329, we held that an owner of real estate may maintain an action of ejectment against- a railroad company which has taken the right of way over his land without payment or tender of compensation. Tacitly conceding the correctness of these decisions, appellants claim that plaintiff cannot now avail himself of either of these remedies, because he permitted the construction of the road over his premises, which was attended- with great expense, without insisting upon payment of damages, and without objection. And they cite a number of authorities which tend . to support their position. . right of way. Whatever may have been determined elsewhere, the law in this State has been settled adversely to the position of appellants. In Hibbs v. Chicaqo & Southwestern Railway Co., 39 Iowa, 340, it was held that the fact that plaintiff knowingly permitted the defendant to enter upon his land and build its road does not estop him from maintaining an injunction, restraining the defendant from using the right of way, without making compensation there,for. There is no difference in principle, in this respect, between a proceeding by injunction and an action of ejectment. This case is decisive of the present question, and determines it, perhaps not in accordance with the weight of authority, but in harmony with all just notions of the rights of ^property. [423] II. It is further m-ged that the answer of Mc'Kitterick shows that theyailroad is in his possession as receiver, and that, as he is an officer of the court appointing him, he cannot be sued without permission of that court. This point was not in any manner raised in or presented to the court below, and it cannot be presented for the first time here. _._. mthmit^compensation. This proceeding is to be regarded as a mere means of coercing payment of the damages. We suppose the court below so considered it in view of the order that no execution for possession issue till four weeks from the adjournment of court. If the damages had not been assessed, the defendant might, notwithstanding this proceeding, cause the damages to the land owner to be assessed, and upon payment of them we have no doubt he would be entitled to a recall of the execution if issued, and to the aid of a court of equity for that purpose. But in this case it appears that the damages have been assessed, and nothing but payment of them is wanting to entitle the defendant to the continued use of plaintiff’s land. If these damages are paid no execution for possession should issue. The court below will, therefore, be directed to enter a judgment that plaintiff is entitled to the possession of the lands, and that, if the damages assessed with interest at the rate of six per cent, from the date of assessment, and costs be not paid within forty-five days from the entering of the judgme.nt, execution for the possession of the premises issue, but that if the damages, interest and costs be within that time paid, no execution issue, and the judgment will be satisfied. Thus modified, the judgment is Affirmed.