Challiss v. A. T. & Santa Fe Railroad

— 126 — The opinion of the court was delivered by Brewer, J.: In 1864-5 the A. & P. P. Railroad Co. instituted condemnation proceedings, under the law of 1864, to obtain the right of way through certain tracts of land in Atchison county. And the two principal questions in this case are as to the validity of those proceedings, and as to the quantity of title transferred by them, if valid, to the railroad company. 1. Title to lands acquired for right of way. 2. Legislative sHtutiónanaw. We will consider the latter question first. Chap. 124 of the laws of 1864, entitled “An act to enable railroad companies to acquire title to lands for railroad purposes,” prescribes the steps to be pursued in these condemnation proceedings; and in § 4 it is provided that, “to such portions of such road * * * title in fee simple shall vest in such company, its successors and assigns.” This language is plain, and susceptible of but one construction. The clear intent of the legislature was, that the railroad companies should acquire a perfect and absolute estate, and not simply an easement. This being the clear meaning of the statute, the power of the legislature to enact it is challenged. It is said that “the right to appropriate private property for public use has always been limited to the actual necessities of such use,” and that an easement is all that is necessary to secure to the railroad company the fullest possible enjoyment of the land for its purposes. All this may be true; but the question of the necessity is one for the legislature, and not for the courts. It is said by Cooley in his work on Constitutional Limitations, p. 558, that, “It seems, however, to be competent for the state to appropriate the title to the land in fee, and so to altogether exclude any use by the former owner, except that which every individual citizen is entitled to make, if in the opinion of the legislature it is needful that the fee be taken.” True, in a note he says, “We think it would be difficult to demonstrate the necessity for appropriating the fee in case of any thoroughfare; and if never needful, it ought to be held incompe — 127 — tent.” But notwithstanding this suggestion in the note, we think the doctrine of the text fully sustained by the authorities. Moore v. City of New York, 4 Sandf. 456; Heyward v. Mayor of New York, 3 Seld. 314; Reesford v. Knight, 1 Kernan, 308; Beekman v. S. & S. Rld. Co., 3 Paige, 75; Pierce on Am. Rld. Law, 161; Halderman v. Penn. Cent. R. R., 50 Penn. St. 425; Waterworks Co. v. Burkhart, 41 Ind. 364; Dingley v. City of Boston, 100 Mass. 544; Brooklyn Park Comm’rs v. Armstrong, 45 N. Y. 234; Coster v. N. J. Rld. Co., 3 Zab. 227; P. & R. I. Rld. Co. v. Birkett, 62 Ill. 332; Ral. & G. Rld. Co. v. Davis, 2 Dev. & Bat. 451; State v. Rives, 5 Iredell, 297; DeVaraigne v. Fox, 2 Blatch. C. C. 95. In this last case the law is thus stated: “ In the exercise of its power to devote private property to public use, the legislature are the exclusive judges of the degree and quality of interest which are proper to be taken, as well as of the necessity of taking it.” s. Right of way Constitution construed. Again, it is urged by counsel, that, as our constitution recognizes the granting of the right of way, it by implication forbids the acquisition of anything beyond the mere right of way. Sec. 4 of art. 12 of the constitution reads; “No right of way shall be appropriated to the use of any corporation until full compensation,” etc. We cannot give to this the force that is claimed. The right of eminent domain is not granted by this section. That right is one of the powers inherent in the state, as the representative of the public; and this section operates only as a restriction upon this power. If the term, “right of way,” is here used in its restricted, technical sense, as referring simply to a mere easement, it would have the power to take the fee unrestricted in the matter of compensation. We think it should be construed, not as defining»the quantity of interest to be transferred, but as meaning the right of passage through the grounds of others, irrespective of the interest or title to be acquired. We see therefore in this nothing to limit the force of the adjudications elsewhere; and whatever might be our views, if the question were a new one, we feel constrained to — 128 — follow what seems to be the almost unbroken line of decisions. We hold therefore that title in fee simple passed by the condemnation proceedings, if those proceedings were in conformity to the statute. It may be remarked that the legislature of 1868 changed the law as to the quantity of estate passing by such proceedings to a railroad company, (Gen. Stat. 213, § 84,) where it is provided that “the perpetual use of such lands shall vest in such company, its successors and assigns for the use of the railroad.” Were the proceedings in this case in conformity to the statute ? It appears that the application of the railroad company was made on the 24th of August 1864; that the 26th of September following was the day fixed by the commissioners for the commencement of the work of laying off the route; that publication of notice of such time was duly made in the “ Champion,” the first publication being on the 25th of August, and more than thirty days before the appointed day; that the commissioners met at the appointed time and commenced their work; that after completing it they filed in the county clerk’s office a written report thereof; that a copy thereof was duly filed in the county treasurer’s office, the damages paid, and the report thereafter filed and recorded in the office of the register of deeds. It also appears that the then owners of the tracts through which the right of way was condemned accepted the appraisement and received the money, that the road was constructed and in operation through these tracts in 1866; and that in 1868 and 1869 the plaintiff in error purchased the tracts of thé then owners, receiving warranty deeds therefor. At the time of this purchase the hundred-feet strip was not all actually occupied by the railroad company, but only a strip of about twenty feet in width. The balance was and had been cultivated by the prior owners. The affidavit of publication of notice recited that the “notice was published in said newspaper for five consecutive weeks, the first publication being on the 25th day of August 1864, and the last on the 29th day of September 1864.” In recording this affidavit by the register of — 129 — deeds a clerical mistake was made, the figure 8 being substituted for 5, so that it stated that the first publication was on the* 28th, and less than thirty days before the appointed time for the meeting of the commissioners. Now it is contended by counsel for plaintiff in error, that the occupation by the railroad company, at the time of the purchase by plaintiff in error being only of a twenty-feet strip was no notice of any claim to the balance of the one-hundred-feet strip, and that the purchaser was chargeable with notice of the condemnation proceedings only as they appeared upon the records of the register of deeds’ office; and that as they there appeared, they showed proceedings invalid, in that no legal notice appeared to have been given of the time of the commissioners’ meeting. In this we think counsel is mistaken. The full legal notice was actually given; the proceedings actually had were regular. By those proceedings the title of the then owners was wholly divested. This was divested, not by a voluntary conveyance, but by proceedings in invitum, to compel a transfer, exactly as by a sheriff’s sale. Now as to such proceedings a party may not trust entirely to the records of the office of register of deeds, but must take notice of whatever appears upon the records of every officer or tribunal having jurisdiction of such proceedings. Again, there was sufficient in the record in the register of deeds’ office to put the plaintiff in error upon inquiry. The report of the commissioners recited that notice had been published for thirty days. The day of the last publication was given as September 29th. Running back five weeks would bring it to August 25th, and not August 28th. This record was but a copy of a copy. Proof of publication was not by the law, in terms at least, required. (Sec. 6 of the act, Laws of 1864, p. 237.) The only object of the publication is notice to the land-owners. If with a defective publication, or without any publication, they had appeared to the proceedings, and accepted the award, neither they nor their grantees would be heard to say that the notice was defective, or omitted. We think therefore, as against this plaintiff the court prop — 130 — erly ruled that the proceedings were regular and valid. Some other questions are raised by counsel, but in the view we have taken of these two principal matters, it seems unnecessary to consider them. The judgment will be affirmed. All the Justices concurring.