Finnell's Administrator v. Louisville Southern Railroad

CHIEF JUSTICE PRYOR delivered the opinion of the coubt. John W. Finnell owned a. tract of 352 acres of land in- the county of Mercer, and by an executory contract (in writing) sold it to Jackson Vanarsdall and John H. Finnell for $12,-300. Vanarsdall purchased of John H. Finnell his interest and took possession of the land under this purchase. The vendor, John W. Finnell, having died, and the purchase money not having been paid, his personal representative, [572] W. H. Terhune, instituted this action to enforce the lien of the vendor. After this sale to Vanarsdall, who was in possession and the equitable owner, the Southern Railroad was constructed over a part of this land, and having been made a. defendant to the action the company was allowed to make defense, or by an answer and cross petition to set up its claim to the right of way under the Vanarsdall agreement. It seems that this pleading on the part of the railway company was filed or permitted to be filed after a judgment had been rendered to sell the property. That judgment directed the land on either side of the railway to be first sold, with this proviso: That if the land at the sale fails to bring the debt the court will then proceed to make the unpaid purchase money out of it; viz. the said roadway. We do not see that the filing of the cross pleading by the railway was an error on the part of the court, as it might well determine the mode in which this roadway should be disposed of or the -company made to account for its full value. The commissioner sold the land on both sides of the right of way, and it lacked $6,000 of satisfying the vendor’s lien, and now it is .insisted that this right of way, with the improvements upon it in the way of rails, etc., should be sold to satisfy the lien yet due. It seems the court refused to sell the roadbed, but undertook to have it condemned by ascertaining the actual value of the land taken and the .damage to the tract by reason of the taking. The jury fixed the value of the land at $100 and the damages at $350, making in all $450, and for this sum gave a judgment. It is argued by counsel for the appellant that the chancellor was without jurisdiction to have this land condemned, as under our statute there is but one way the land could be condemned, and that was by the Mercer County Court. [573] The land had, in fact, not been condemned, but the entry and building of this great public way was made by the consent of the owner and the party in possession. There was no appropriation of property without the consent of the owner, or any injustice to the vendor by reason of giving to him. the full value and more than the full value of the land in discharge of his lien. It is evident the chancellor would, under the circumstances, permit the company to remove its track and leave the land unaffected by the presence of the road upon it, and if this equitable right exists in what way is the party seeking to enforce his lien injured, when he obtains twice as much as the land is worth? This not being a wrongful entry, the party is not in the light of a trespasser as in the case of Holloway v. Louisville, &c., Railway Co., 92 Ky., 244, where an ejectment was maintained becase of the wrongful entry, but a case is presented in a court of equity where an equitable adjustment becomes necessary, and to prevent a sale of that in which the public has an interest, and the sacrifice of the property of. the appellee. The argument that the way and the only way to test the value is by a public sale of the tract is fallacious, as there can be no doubt but that on the facts the party would be allowed to remove the bed of his road, with the rails, etc., and no chancellor ought or would permit a great line of railway to be severed in this manner where the right to enter on the land existed, and where a court of equity can so adjudge as to fully compensate the holder of the lien. If the chancellor had withheld his judgment until proceedings could have been had in the county court the same objections would be urged, and where it is plain the appellant has received all and more than he is entitled to, if the [574] judgment below is enforced, it should stand. The only error is in rendering a judgment without creating a lien to that extent upon the company’s roadbed. The judgment is reversed, with directions to enter a judgment requiring the payment of this money within a fixed period(say twenty days) or the lien will be enforced.