Athison, Topeka & Santa Fe Railroad v. Weaver

The opinion of the court was delivered by Kingman, C. J.: [350] ,. - 1. Pleading; railroad company\ [349] The defendant in error commenced an action before a justice of the peace in Lyon county against [350] the plaintiff in error. The defendant moved to dismiss the action for the reason that the bill of particulars did not state facts sufficient to constitute a cause of action, and _ _ ; for the further reason that the plaintiff’s only remedy was by proceedings on his own motion to-have the land condemned, and compel the company to pay the damages awarded. The justice sustained the motion, whereupon the plaintiff took the case to the district court on error and that court reversed the judgment of the justice. The plaintiff in error brings the case to this court, for review. The same points are presented here as were made before the justice. The alleged defect in the bill of particulars is, that there is no allegation therein that the Eailroad Company had not appropriated the right of way through defendant’s land by proper legal proceedings before the same was entered upon. It may well be doubted whether under our constitution such an averment is necessary in any case. It is conceded that many authorities sustain the position of plaintiff in error on this point; but we have seen but one under a constitutional provision requiring compensation to be first made or tendered before any right of way can be obtained, and that is the Cleveland & Pittsburg Rld. Co. v. Stackhouse, 10 Ohio St., 567; and in that case it seemá much stress was placed upon-the statement in the petition that the Eailroad^Company had appropriated the land, and that the law' authorized such appropriation, and at the same time provided for a just compensation to the owner. There is nothing in either count of' the bill of particulars in this case that indicates that the company had appropriated the land. On the contrary, it is stated that they unlawfully broke and entered the plaintiff’s premises. But however the rule may be on this point, the second count is good, for even if the company had by proper proceedings taken and paid for the right of way across plaintiff’s land, it had no right to dig up plaintiff’s clay and carry it away. A condemnation gives no such rights; therefore this count is good. [351] „ Eemeilyof toviv 1S7Ó, construed. [350] The remaining question is a more important, but less [351] embarrassing one. The constitution provides that no right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or secured by a deposit of money, to the ^ ^ ^ ig done the corporation gets no rights, and is a trespasser if it goes upon another’s land for the purpose of building and operating its road. It gets absolutely no rights. This is so plain that the language of the constitution is the strongest argument that can be used. Now it is claimed that § 87, ch. 74, laws of 1870, by giving to the owner of any land through which a railroad may be built the right to have the land condemned and appraised, and damages assessed therefor, has given an adequate remedy which is necessarily exclusive in its character ; and to this point many authorities are cited. It is not deemed essential to examine them. It may be observed that the law referred to does not in terms declare that the course therein provided is exclusive; nor does it do so by implication. No new right is created by the statute, and a remedy provided to secure it. The right existed before the statute. The owner of land had, to secure his rights, such remedy as the law affords to any injured person. The legislature gave him another remedy, but did not take away those already possessed. The new remedy may be satisfactory, if the land-owner chooses to waive his rights to prior compensation. Otherwise it would be grossly inadequate. Even when damages are ascertained in this way the owner who resorts to it must ran his risk of ever getting his money. He may take this course if he chooses to take all the risks; but he is not obliged to do so. He is not compelled to waive his rights to prior compensation ; nor can the legislature or the courts do away with the safeguards that the constitution has thrown around private property, to preserve it from the grasp of corporations. The legislature has not done so in the section referred to, construed as it ought to be. The court can but say, that until compensation is made or deposited the corporation gets no right of way, and is but a trespasser. In Indiana it is held that [352] ejectment lies; and it is difficult to see how this conclusion can be escaped. (Graham v. The C. I. C. Rld. co., 27 Ind., 260.) The judgment of the district court is affirmed. All the Justices concurring.