North Missouri Railroad v. Lackland

Napton, Judge, delivered the opinion of the court. This case has been brought here by appeal, and a question has been made whether an appeal lies. The practice act of 1849 (art. 30, § 6) excludes from its operation all special statutory remedies which, before the passage of that act, were not to be obtained by action at law or bill in equity, and would therefore not seem to apply to this cause; but in the view we are disposed to take of the matter, it is not very material whether that act or the act of 1845 be considered as applicable. The practice act of 1845 (R. O. 1845, p. 831) gives this court a supervision by appeal of all judgments and — 526 — decisions of the circuit court in civil cases which are final. Whatever form the proceedings in the circuit court in a civil case may assume — whether that of an action at law or a bill in equity, or a motion, or some special mode prescribed by statute — if those proceedings result in a judgment of that court, which is final so far as that court is concerned, that judgment may be reversed upon appeal. A civil case, I apprehend, is a phrase used merely to exclude criminal proceedings, for which other and special provisions are made. Nor is it perceived that the act of 1849 is less comprehensive in its scope. If this proceeding is not one “ for the enforcement or protection of private rights, or the redress or prevention of private wrongs,” a very restricted meaning must be given to this language, hardly compatible with the general spirit of the law. That there may be cases where special and limited authority is delegated to a court, not because it is a court, but from some idea of convenience or propriety, and the decision of the court bo made final, is not questioned. It may however admit of a doubt whether the legislature could so devise a proceeding designed to effect the transfer of private property to the public, as to deprive the courts of the power of determining whether the constitutional restrictions upon this subject had been honestly complied with. However this may be, the question here is, does the court act in its judicial capacity, and can it exercise, in its control over the subject confided to it by the charter, the general powers and jurisdiction of a court, or is the court, quoad hoc, a mere commissioner, a special tribunal selected for a special purpose and functus officio when the special powers confided to it by statute have been exhausted ? The act of 1851 (Sess. Acts, 1851, p. 485), incorporating this company, provides for a voluntary relinquishment of the rights of way desired by the company for their road, and also provides a mode by which the company can acquire a right of way, or a title to the land, in cases where the owner is unwilling to relinquish. In the latter case the proceeding is origin — 527 — ated by an. application of the company to the circuit judge of the county where the land lies, whose duty it is made, after seeing that due notice has been given to the land owner, to appoint three citizens of the county to view the land and report the damages. This report, when made, is to be filed in the clerk’s office, and “ if no valid objection be made to such report, the court shall enter judgment in favor of such owner against such company for the amount of damages assessed, and shall make an order vesting in said company the fee simple title of the land.” After some further provisions for setting aside the report on certain contingencies, the act provides that, “ in all such cases, the court shall adjudge the costs of the proceeding according to equity; and the court shall have • power to make such orders and take such other steps as will promote the ends of justice between the owners of such lands and such company.” There are some provisions in this section which undoubtedly might be construed to limit the power of the judge, as a mere commissioner, to the specific acts delegated; but in the main the general scope of the section looks to the action of the court in its judicial capacity, and gives the court authority, not only to pronounce a judgment which will pass a title to the land to the company and a right to the damages to the land owner, but “ to make all orders and take any steps” which in the opinion of the court will best promote the ends of justice. Although the act is carelessly drawn and framed in a mode to justify doubts as to its true intent, we will not presume, notwithstanding the absence of any special provisions for an appeal, that it was the intention of the legislature to deprive the parties interested of this right; especially as the provisions of the general law, both of 1849 and 1845, seem large enough, without any strained construction, to embrace' the case. We are the more inclined to this 'opinion, because, an appeal is the most convenient and least expensive mode in which the supervising jurisdiction of this court can be exercised, and because it may be safely said that it is at least doubtful whether that jurisdiction could be entirely cut off if — 528 — the legislature had so intended. Could the legislature ^provide an illusory compensation for private property taken for public use totally at variance with the true spirit of the constitution, and, by placing its enforcement under the control of a selected tribunal and declaring the decisions of that tribu-nnal final, thus place the subject beyond the reach of the courts ? The principal question in this case is, whether the corporation — after the assessment of damages and the report of the viewers, and before the judgment of the court thereon — has a right to discontinue it proceedings ; and this question will appear upon examination to be much embarrassed, not only by judicial decisions apparently if not really conflicting, but by the intrinsic difficulties of the subject. Considerations of a forcible and practical character might very well have prompted the legislature to have established the rule either way without its being very obvious that injustice would be done. However, our business does not lead us into this branch of the subject, and we are left simply to inquire what the legislature has declared to be the rule in the act under consideration, and, if no such declaration has been made, what rule the general law of this state has provided. In England there is no uncertainty as to the rule. It is well settled by the decisions to which we have been referred, that when railway corporations give notice to a land owner on the route of their railway of their intention to take his land, the company is not at liberty afterwards to retract. Indeed the courts have gone to the extent of holding, that, where a party so situated has received such a notice, he may sustain a bill for a specific performance of the agreement implied by the act of Parliament; and the courts will enforce such agreement by ordering the company to take the proceedings prescribed by the statute for ascertaining the amount of purchase money and compensation. (Walker v. Eastern C. R. Co. 6 Hare, 593.) An examination of the British Railway Statutes and the judicial constructions upon them will however show that the system in that country essentially differs — 529 — from ours, not only in the principle upon which it is based, but in all the detailed rules by which it is carried out. In England the line of the road is fixed in the charter, and the act is accompanied with a schedule designating all the land through which it passes and its owners or occupiers, so far as their names and the extent of their interests can be ascertained. Contracts for purchase are made before the passage of the act; and those land owners who are upon the proposed line, and are unwilling that their land shall be taken, are heard before Parliament, or its committee who have the subject in charge, and every contested point is adjusted. The act itself effects a sale, the terms of which have been either arranged beforehand or can be ascertained subsequently in the modes pointed out in the law. When the company notifies the dis-sentient land owner of its intention to take his land, the matter is settled so far as the sale is concerned; and the most exact and careful regulations are made to secure a full indemnity, not only for the value of the land, but compensation for all injuries to portions of land not taken, whether physical and direct or intermediate and consequential. This matter is, in certain cases, submitted to a .justice of the peace — in others, to arbitration — and in others again, to a jury selected by the sheriff. In no case is there any appeal; much less can the company withdraw their propositions. It is considered as a forced purchase under the authority of Parliament, and the notice concludes the contract. In addition to this, the company must be prepared to show that their stock has been paid in before they can touch the land. In this state the course pursued is so totally different, both in system and in all its details, as hardly to require that the points of difference should be particularly enumerated. Railway charters are to be had for the asking, without money and without a route. They are frequently granted ten years before the undertakers are compelled to take the first step either in making a survey or raising any portion of the capital. No line of the route is determined by the charter; for, though a starting point is usually designated, and sometimes — 530 — ,a terminus is also fixed, the line between these points, perhaps hundreds of miles apart, is left to be determined by the interest, convenience or fancy of the company. The counties through which the road is to pass are not even determined, much less the particular tracts of land. The charter of the North Missouri Railroad authorizes the company to build a road from “ St. Charles passing up the divide between the tributaries of the Mississippi and Missouri rivers, as near as may bje, to the northern boundary line of this state.” Here is a scope, varying probably from ten to two hundred miles, within which this company are at liberty to locate their road. Railroads are constructed here, not so much with a view to furnish facilities to existing wealth and population and commerce, as to create them in a wilderness. Hence the subject of damages has not been esteemed one likely to be very important, and has been disposed of in a «summary way in a single section — a subject which in England occupies nearly two hundred pages of the statutes and has furnished material for volumes of comments. (85 British Stats, at Large, 141; Chambers and Peterson on Railways.) It is not e§,sy to determine, from the act which incorporates this North Missouri Railroad Company, at what period the route can be said to be so located as to deprive the company of the power to change. The act gives to the company an indefinite power to “ survey, mark, locate and construct” a railroad from St. Charles to Iowa. The act is entirely silent as to how many routes may be surveyed — what shall be considered as binding the company to any particular route — how long they shall be so bound — and how often they may change their selection. It would seem that the power to change a location once determined on is by no means expressly denied, but on the contrary is rather impliedly given. If the company begin at St. Charles and end on the Iowa line, there is no intermediate point determined, except that they are restricted in their selection of a route to that district of country which is denominated “the divide” between the waters of the Missouri and Mississippi rivers; and what acts shall constitute — 531 — a location are not specified. By reference to the twenty-third section of the act of 1853 (Sess. Acts, p. 133) it will be seen that the power to change the route is expressly given to the company. The only restriction upon this right contained in that provision' is, that where the alteration is proposed in a city or town, it can not be done after the construction of one road unless with the . consent of the corporate authorities; and in all cases where an alteration is made after grading has been done on the route first selected, compensation must be made for the injury done to the lands graded. The 56th section of this act declares that “ all existing rail.road corporations in this state, and such as now are or may be hereafter chartered,” shall have all the power and privileges given by the act; and the 23d section is particularly referred to as applicable to all existing corporations, unless their charters contained provisions inconsistent therewith. There is nothing in the 23d section of the act of 1853 at all ■inconsistent with any provisions of the charter of the North Missouri Railroad Company ; on the contrary, as the section is manifestly for the benefit of the company, it may be presumed to have been accepted by the company, and it would seem from this section that until some work is done on a proposed route the company have absolute power to abandon it at their pleasure. What effect such abandonment may have on the rights of others is not provided for or alluded to in the section. In addition to these obvious marks of distinction between the system of railway enterprises in England and in this country, it may be observed that the principles upon which a transfer of lands from individuals to corporations is effected under the two systems are quite distinct. In England the power of Parliament is exerted to effect a sale, which may be voluntary or involuntary on the part of the vendor, but to which the assent of the vendee is implied by the passage of the charter; and the first step taken by the corporation in pursuance of its charter, to indicate to the vendor that his -land will be required, is regarded, as completing the .contract. — 532 — Here there is nothing having the appearance of negotiation and sale; but the state transfers its powers of eminent domain to the corporation, and authorizes it to take the land desired upon paying the compensation to which the land owner is entitled, and a provision is made to ascertain this compensation. At what period of time the right to the compensation becomes vested and the title to the land is transferred must depend upon a fair construction of the statutory regulations which control the subject here, and but little argument is to be derived from the acts of the British Parliament, or the established practice under them, which, although directed to a common object with ours, are yet based upon different systems and different principles, and controlled by a very different set of circumstances. In New York the later and more prevalent opinion seems to be, that the company does not acquire any vested or indefeasible right or title to the land sought to be taken, nor the owner any right to the compensation ascertained by the commissioners, until their report is filed and confirmed, and the order of the court made for the payment of the amount. (Hudson River Railroad v. Outwater, 3 Sand. S. C. 691; The People v. Brooklyn, 1 Wend. 322; In the matter of Canal street, 11 Wend. 154.) The decisive question in the case is, at what time do the rights of the parties become vested ? Under the charter of the North Missouri Railroad Company, do the rights of the parties become vested upon a notice from the company to the land owner, or upon the appointment of commissioners to view the land, or upon the report of the commissioners, or upon the judgment of the circuit court confirming the previous proceedings in the case ? The language of the act is that “ the court shall enter judgment in favor of such owner against such company for the amount of damages assessed, and shall make an order vesting in said company the fee simple title of the land.” The court is not authorized to enter a judgment for the compensation against the company until all the preliminary steps pointed out in the act have' been — 533 — taken; until after a notice lias been given to the land owner, commissioners appointed by tbe judge, a report made by the commissioners, and the report confirmed. Undoubtedly, if the compensation vested upon any of the preliminary stages of this proceeding, the title to the land for which compensation accrues must have at the same period passed to the company ; yet by the terms of the act the court is not warranted in making any order vesting in the corporation the fee simple title to the land until all the previous steps pointed out in the act have been taken. There is undoubtedly much force in the argument against this construction, based upon the impolicy of permitting these corporations arbitrarily to shift their position, upon the faith of whose stability the individual land owner may have subjected himself to great inconvenience, and other citizens may have invested their means upon the supposed line of thel'oad. We are fully impressed with the weight of these considerations, hut on the other hand the legislature seem to have disregarded them by giving to the company the undoubted right of changing their route up to the very period of commencing their work, and even beyond that, upon certain contingencies referred to in the statute. The legislature may have thought that the public, and the corporation chartered to promote the public interest, would sustain a larger amount of injury by being compelled to abide by its first location in cases where the damages assessed would be esteemed exorbitant and onerous, than individuals would suffer by permitting the corporation in such cases to change the route rather than pay the damages. At all events we think the fair construction of the charter is, that until the judgment of the court the company has a right to discontinue its proceedings. The cases in Massachusetts and some adjudications in this court', to which reference has been made, relate to the construction of county or state roads ; and there is nothing in those opinions, so far as we have observed, conflicting with the conclusion reached in this case. In these cases concerning a condemnation of land, the act — 534 — provides that the court shall adjudge the costs of the proceeding according to equity. It is obvious that if the company is permitted to discontinue, all the costs and expenses of the land owner should be paid by the company. This will embrace all the costs of the case and counsel fees, both here and in the court where the case was tried. The other judges concurring, the judgment is reversed and and the cause remanded.