Canton, Aberdeen & Nashville Railroad v. French

'Woods, C. J., delivered the opinion of the court. The action of the trial court in sustaining the demurrer of the plaintiff below to the railroad company’s first special plea, which set up an alleged condemnation proceeding of the locus in quo in the year 1883, is assigned for error and will first be briefly considered by us. A great part of the luminous and able brief of counsel for appellant is devoted to an effort to show that there was a mere clerical mistake in the insertion in those proceedings of the wrong number of the part of the section of land actually sought to be condemned (17 instead of 20, the true number), and this presentation of this branch of the ease offers for consideration a most interesting legal question; but any determination of this question, on all the facts disclosed, would be improper, and is unnecessary for this reason, viz., the defendant in that attempted condemnation proceeding, who is. the appellee here and who was then and yet is the [27] owner of tbe land in question, was not a party to that proceeding. Tbe return of tbe sheriff shows that there was a fatal defect in his execution of the summons. The return states that the officer “served this process on Mattie French by handing to her husband, J. W. French, a true copy of the same, he being an inmate of the house in which she resides, over the age of sixteen years and willing to receive the same.” There is nothing in the return to show that Mattie French could not be found at her usual abode, and until this fact was made to appear by the officer’s return there was a want of authority to execute the process by delivering a copy to another person for her. The plea is not assisted, either, by its averment that Mrs. French had knowledge of this attempted condemnation, and of the railroad company’s construction of its line over her lands; for the proceeding of condemnation under which the railroad entered upon the lands was as to her res inter alios acta, and she had the right, if she chose, to stand by without taking any action, provided only she did not permit the statute of limitation to bar her action for the trespass. The real controversy in the case arises over the action of the court below in sustaining the demurrer to the plea puis darrein continuance interposed by the railroad company at the second term of the court after suit began. How were the rights of the parties affected by this second and successful condemnation proceeding which was had in the year 1889, several years after the trespass,, had been- committed, and several years after the cuts and fills on the locus in quo had been made, and several years after the injuries to the adjacent lands had been done? It seems to be perfectly and correctly conceded by counsel for appellant that the original trespass, and the' right to a recovery therefor, was not extinguished by the condemnation proceeding of 1889. The rule applicable in cases of this character, as declared by this court in R. R. Co. v. Dickson, 63 Miss., is not controverted by counsel. Said Judge Campbell in that case: “ The railroad company was a trespasser in constructing its road upon the land [28] over which it had not acquired the right of way, but it still had the right to acquire the right of way, unaffected by the liability incurred for its trespass. The trespass committed is not involved in the determination of the due compensation.” A careful examination and analysis of this clear and vigorous statement of the principles of law applicable in such cases will do more than enlighten us in considering the case at bar; it will conclusively and convincingly determine the present contention. (1) The railroad company was a trespasser in constructing its road upon the land over which it had not acquired the right of way; but (2) it had the right, nevertheless, still to acquire a right of way; and (3) such acquisition of the right of way would not affect a liability already incurred by the original trespass; hence, (4) in considering what is due compensation for the right of way, so acquired subsequent to the trespass, the trespass itself is not involved and is not to be considered. Argumentation is, apparently and really, unnecessary. When the last condemnation proceedings were had, the jury of inquest could only look at the lands as they then found them, and not as they were five yeai’s before, when there were no cuts and fills, no road-bed and track, and no consequent injuries to the adjacent realty. The jury of inquest could only determine what injury would be sustained by the land owner by the continuance of the railway over the laud as it then was, and could not properly inquire as to what damages the owner of the land had sustained by reason of injuries originally done her adjacent realty. Those injuries had long been done, and the then condemnation involved only a consideration of what the right of way was worth. The condemnation then could only refer to compensation for the loss of the land embraced in the right of way, for no injuries to the land, other than those already done by the original trespass, were to occur. The trespass had been committed, and the injuries resulting therefrom were not involved in the second condemnation. The only compensation the jury of inquest could legally award was that for the right of way, pure and simple, and compensation for subsequent injuries. The original trespass and its resulting injuries were [29] wholly beyond the domain of that jury’s consideration; the liability of the railroad for the trespass had been incurred and was fixed, and could not be affected by the subsequent condemnation, in which it acquired the right of way over the land in its then condition — the condition in which the jury found it when they viewed it. There is evidence to support the finding of the jury in the court below, and the rulings of the trial judge are not at variance with this opinion. It may be true, as contended by counsel for appellant, that the jury of inquest, in the second condemnation, gave compensation not alone for the right of way, but for the original trespass and its injuries to the adjacent lands, and that, if this appeal be unsuccessful, the appellant will be required, in effect, to pay twice for the same injuries. If this be so, it is to be regretted, but a reversal by us is impossible without overturning former adjudications and launching out upon an unknown sea. Affirmed.