Florence, El Dorado & Walnut Valley Railroad v. Lilley

The opinion of the court was delivered by Dennison, J.: The major part of the errors complained of can be settled by a determination of the proposition of whether or not a railroad corporation can institute proceedings under the law of eminent domain for the purpose of having certain lands condemned for its use, and then, upon appeal by a person claiming to be the owner thereof, be heard to assert that it is the equitable owner of the land and entitled to the award. [592] This proceeding was instituted under the right of eminent domain — under the power to take private property for public use. To hold that a railroad company may ask the district court to use this power to condemn land for its use, and to have the value thereof and the damages awarded to the owner, and then be permitted to show that it is already the owner of said land and entitled to the award, would be to turn this proceeding into a farce and subject the district courts to ridicule. A condemnation proceeding under the right of eminent domain can be legally maintained only to subject the private property of one owner to the public use of another, and to award the compensation therefor. It cannot' be instituted by a corporation to quiet its title to land it claims already to own, nor can it be instituted for the purpose of compelling a specific performance of a contract already entered into between a corporation and others. Only one other assignment of error need be considered by us. The plaintiff in error contends that the court erred in entering a judgment against it — that it should have entered an award. The court should have entered a j udgment against the railroad company for all costs. As to the amount found as the value of the real property taken and the damages to that not taken, no personal judgment should be rendered. The court should find such value and damages in the nature of an award. This question has been fully discussed in the case of St. L. L. & D. Rld. Co. v. Wilder, 17 Kan. 239. In that case it was held: “ On an appeal in the district court, in condemnation proceedings, it is error for the court to render an ordinary personal judgment against the railroad company for the damages assessed, to be collected by execution. The judgment for damages in such a case [593] should be in the nature of an award of damages, such as is made by the condemnation commissioners.” See also St. J. & D. C. Rld. Co. v. Callender, 13 Kan. 496 ; Blackshire v. A. T. & S. F. Rld. Co., 13 id. 515 ; L. & T. Rly. Co. v. Moore, 24 id. 323 ; K. C. E. & S. Rld. Co. v. Merrill, 25 id. 422. In delivering the opinion of the court in St. L. L. & D. Rld. Co. v. Wilder, supra, Mr. Justice Valentine says: '“After the judgment is rendered in a case of this kind, then the railroad company may take the land or not, at its option. (Blackshire v. A. T. & S. F. Rld. Co., 13 Kan. 515.) But until it pays for the land it gets no title. And if it does not pay for the land within the time prescribed by law, it may be ejected from the premises, provided, of course, that' it has taken possession thereof. (St. J. & D. C. Rld. Co. v. Callender, 13 Kan. 496.) An owner of land would not want to take a judgment against an irresponsible and insolvent railroad company as payment for his land ; nor would a railroad company want to pay an enormously excessive award of damages for its right of way. Therefore it is right that each should have some choice in the matter. Upon this question see authorities above cited, and Gear v. Sioux City Rld. Co. 20 Iowa, 523; Stacey v. Vt. Cent. Rld. Co., 27 Vt. 39; Evansville Rld. Co. v. Miller, 30 Ind. 209.” The view we take of this case renders a consideration of the other assignments of error unnecessary. The case will be remanded to the district court, with orders to modify the judgment in accordance with the views expressed in this opinion. The costs in this court will be equally divided. All the Judges concurring.