Union Depot Co. v. Frederick

Macfarlane, J. — The suit is injunction to restrain defendant, Frederick, and his co-defendant, the sheriff, from executing a writ of possession against the Missouri River, Fort Scott and Gulf Railroad Company, for a certain parcel of land, for which defendant Frederick had obtained a judgment in ejectment against said railroad company; A demurrer to the petition was overruled, defendants declined to plead further, and a perpetual injunction was adjudged, to reverse which this writ of error is prosecuted. The .question is, whether the petition states facts which entitle plaintiff to the relief granted. The petition charges that in March, 1875, Frederick sued the said railroad company for the possession of a tract of land in Kansas City. On June 4, 1879, he recovered judgment, and the case was appealed to the supreme court, where the judgment was affirmed in 1884. The plaintiff, Union Depot Company, is a corporation organized under the general laws of the state (Acts of 1871, pp. 59, 61) with power to maintain a — 142 — union depot at Kansas City. Pending the aforesaid ejectment suit, viz: April, 1877, plaintiff commenced condemnation proceedings to secure land for the depot; a portion of the land involved in the ejectment suit was included in the proceedings for condemnation. These proceedings resulted in the appointment of commissioners, a report of the commissioners assessing the damages and an order of the court approving and confirming the report, and the question here is whether the proceedings were sufficient to entitle the plaintiff to the use of the land in suit for its depot; if so, then the injunction was properly granted; if not, the judgment should be reversed. The petition for condemnation was against the said Frederick, James F. Joy, said railroad company, Nathaniel Thayer, F.W. Palfrey and George W. Weld, trustees and others as defendants. A tract of land called in the petition the second parcel was described, and the names of the owners given as follows: “Beginning at a point on the east boundary line of Santa Fe street and two hundred and ten (210) feet south of the southeast corner of Santa Fe street and Union avenue; thence running south along said east line of Santa Fe street three hundred and seventeen (317) feet; thence east at right angles to said Santa Fe street ten (10) feet; thence northeasterly two hundred and fifty-three (253) feet, to a point in the west line of the northeast quarter of section six (6), township forty-nine (49), of range thirty-three (33), which point is one hundred and forty (140) feet south of the southeast corner of lot No. six (6), of block number forty-two (42), in Turner & Co’s addition to the City of Kansas ; thence north along said west line ninety (90) feet; and thence west and at right angles thereto one hundred and twenty (120) feet, to the place of beginning, — 143 — ■containing fifty-nine (59) one hundredth (59-100) of an acre more or less. “That the names of the owners of said seconpl parcel are as follows: Of that part of such parcel south of a line running east and west across the same fifty (50) feet north and parallel with the south line thereof, the Farmers’ Loan and Trust Company, a corporation created and existing under the laws of the state of New York, trustee, and the Leavenworth', Lawrence & Galveston Eailroad Company, a corporation created and •existing under the laws of the state of Kansas; of the balance of such parcel north'of said line across the parcel, JamesF. Joy, JohnB. Frederick, the Missouri Eiver, Fort Scott and Gulf Eailroad, a corporation created and existing under the laws of the state of Kansas, and Nathaniel Thayer, F.W. Palfrey and George W. Weld, “trustees.” The petition charged that a number (naming them) of defendants were non-residents. The petition was presented to the circuit court, and June 28, 1877, was fixed as the time for hearing it. Timely summons was served on all resident defendants and notice by publication was duly given to non-resident defendants. On June 28, 1877, the petition was heard by the court, Frederick appearing by attorney, and commissioners were-thereupon appointed to assess the damages. The commissioners viewed the land and returned to the •clerk a report of the damages allowed which was filed in July, 1877, and recorded by him. The commissioners allowed $500 damages to the •owners of the south fifty feet of the second parcel. About that tract none of the parties to this suit are concerned. The remainder of that parcel the commissioners •divided into two tracts and assessed the damage to the •owners of the south one of them at $2937.34 and of the — 144 — one north at $2450. The owners of each of these were stated in the report to be Frederick, Joy, said Fort Scott .railroad and the three trustees, Thayer, Palfrey and Weld. Upon filing the report the amount of damages assessed was paid to the clerk. The petition then charges that upon filing said report the -clerk duly notified all persons whose lands were affected thereby, including said Frederick, of the filing of said report and the payment to the clerk of the damages. No written exceptions were filed to the report, by Frederick or any other defendant. On the 25th day of July the report came on for final hearing, before the court, said Frederick appearing by attorney, and the same was approved and confirmed and the title to the land therein described was by decree of court vested in the Union Depot Company as owner thereof in fee simple absolute. The petition charges further that said tract of land for which said commissioners allowed $2,937.34 covers and includes a part of the land sued for by said Frederick in said ejectment describing such part by metes and bounds. We are unable to determine from the description of the two tracts whether or not one includes a part of the other or how much, and will take as true the allegation of the petition. In division one of this court, an opinion was delivered by Sherwood, C. J., upon certain questions involved designated herein as paragraphs 1, 2, 3 and 5, in which we fully concur. That opinion on these questions is as follows: “I. The condemnation proceedings, which are spread forth at large in the petition of the plaintiff corporation, form the only basis upon which the right of that corporation to injunctive relief can be maintained; and the sufficiency of those proceedings is questioned by the general demurrer filed. — 145 — “It becomes necessary, therefore, to examine those proceedings with care, in order to be able to reach a correct conclusion. Various grounds are stated to show that such proceedings did not conform to the law in such cases made and provided; and among them that Frederick, defendant, a non-resident, and yet joined with residents, is urged as being contrary to the statute, and fatal in its character. Chapter 66, General Statutes, 1865, pages 351 et seq., was the one employed in condemning the land in question, for depot purposes. Section 5 of that chapter says: ‘Any number of owners residents in the • same county or circuit, may be joined in one petition, and the damages to each shall be separately assessed by the same commissioners.7 “Looking at that section alone, there might, perhaps, be plausible reason for the view taken in Railroad v. Kellogg, 54 Mo. 334, followed in Railroad v. Carter, 85 Mo. 448, that only residents of the same county or circuit could be joined in the same petition; but it does not do to confine one’s attention to a single section of a statute; the whole enactment must be looked to, and when this is done, then determine what the meaning of each single section is when read with reference to its associate sections. “Pursuing this course in this instance, it will be found that section 2 of the same law authorizes the inclusion in the same petition of both residents, nonresidents and persons unknown. This being done, then, under the provisions of section 5, supra, only those whose interests lie within the county or circuit are to be made parties defendant. Believing this to be the correct view, we disapprove of the ruling in the cases mentioned, on the point in hand. — 146 — “II. further, we hold that Frederick, having twice appeared by attorney before the court during the condemnation proceedings, and having submitted himself to the jurisdiction of that court, this gave the court jurisdiction over him, as much so as if correctly served with process in the most unexceptionable manner. Hilton v. St. Louis, 99 Mo. loc. cit. 207. “III. And in this connection it is well enough to say that proceedings had in the cause were judicial and .not ministerial, as urged by counsel for defendant.. St, Joe, etc., Railroad v. Han., etc., Railroad, 94 Mo. 535; Railroad v. Story, 96 Mo. 611; Lewis on Eminent Domain, sec. 614. “The proceedings being judicial would doubtless bind and estop the defendant, speaking in a general way, just as much so perhaps as any other judicial proceeding. Whether the defendant was thus bound in this case is yet to be considered and determined.” IY. The statute (Revised Statutes, 1865, sec. 1 Ch. 66), requires that the petition shall set forth a description of the real estate which the company seeks to acquire and the names of the owners of the several parcels. But that it “shall not be necessary to make any persons party defendant in respect to their ownership, unless they are either in the actual possession of the premises to be affected, claiming title, or have a title to the premises, appearing of record upon the proper records of the county.” Section 5, among other provisions, contains the following: “And should more than one owner be included in the petition then the damages allowed each shall be stated separate.” Under similar statutory provisions in this and other states it is held that when there are several owners of one parcel of land, the presumption will be in the absence of any showing to the contrary, that they — 147 — are joint owners. In such, case the assessment of one gross sum, as damages, for all the owners, has been approved. Snoddy v. Pettis County, 45 Mo. 361; Railroad v. Christy, 92 Ill. 337; Watson v. Railroad, 57 Wis. 332. The statute authorizes the joining in the same petition of parties owning distinct tracts of land, and contemplates making all persons in possession of any tract parties to the proceeding though they may appear to have no claim or title of record. The construction, thus properly placed upon the foregoing provisions of the statute, is, that the damage to each tract or tracts specified in the petition as belonging to the same owner or owners shall be assessed separately. It is manifest that it was not intended that either the condemning corporation or the commissioners should determine the respective rights of the various claimants to the land or to the damages assessed. If the parties are not able to settle these rights among themselves they are left to have them adjusted by the court. Railroad v. Baker, 102 Mo. 553. Here, it is insisted, the case is different, and that the commissioners assessed a round sum as damages to two several parcels of land belonging . to different owners. Assuming this to be the case, it is insisted by Frederick that the proceedings, so far as they affected his land, in controversy in this suit, were absolutely null and void, and on the other hand the Depot Company insists that such an assessment is merely erroneous and not void, and cannot be questioned in this ■collateral proceeding. It is conceded by both parties that if the proceedings are void they offer no barrier to Frederick’s right to enforce his writ of possession and if merely irregular or erroneous, they constitute a complete bar, when interposed by the Depot Company. — 148 — Power is given the designated tribunal, that is, the court or judge in vacation, the commissioners and the clerk to accomplish two things, the appropriation of the land to the use of the Depot Company, and the assessment of damages in favor of the -owners of the land so appropriated. The steps to be taken in the exercise of the jurisdiction are pointed out with particularity, not so much, perhaps, for the protection of the property owner as to expedite, cheapen, and simplify the proceedings. The owner of the land taken, is, under the constitution and laws, entitled to just compensation and undoubtedly every requirement of the law for securing this right should be rigidly followed. Yet when jurisdiction of the subject-matter and of the person has been obtained, no reason can be seen and we think none exists, why, when such proceedings are assailed collaterally, the same presumption and verity should not follow them as is extended to proceedings in matters of general jurisdiction. It is as important to the corporation that it should secure a certain and unassailable right to the use of the land, and to the land owner that his damages be conclusively established, as to any other litigants that their controversies should be fully and conclusively settled. So it is said in Secombe v. Railroad, 23 Wall. 119: “The judgment of condemnatiou in this case was rendered by a competent court, charged with a special statutory jurisdiction, and all the facts necessary to the exercise of this jurisdiction are shown to exist. A judgment thus obtained is no more subject to impeachment in a collateral proceeding than the judgment of any other court of exclusive jurisdiction.” It is said by the supreme court of Indiana, in a recent case: “When' it affirmatively appears that a court of limited jurisdiction has, in a given case, acquired jurisdiction both of the subject-matter and of — 149 — the parties to the litigation, and that the judgment rendered is such as it might rightfully render in such a case, the same presumption of regularity attaches to its proceedings as to the proceedings of a court of general jurisdiction, and its judgments are alike unassailable by collateral attack.” Rassier v. Grimmer, 28 N. E. Rep. 867. On the same question the court of appeals of New York says: “ ‘Whether the appraisers were freeholders or not was not enquirable into collaterally. The appointment had been made by an officer whose duty it was to have appointed freeholders and none other. If he erred in that particular, the appointment might have been examined in this court on certiorari, and, if illegally made, would have been set aside.’ * * * The appointment of appraisers was á proceeding which could not be overhauled in a collateral proceeding.” Porter v. Purdy, 29 N. Y. 108-109. This is the general accepted doctrine of the courts of this country, as will be seen by examination of the following and other cases cited in brief of counsel. State v. Rye, 35 N. H. 377; Clark v. Drain Comm’r, 50 Mich. 620; Gilkey v. Watertown, 141 Mass. 319; Hamilton v. Railroad, 1 Md. Ch. 110; State v. Kinney, 39 Iowa, 227. While this court has, in special proceedings, ever required great strictness in following all requirements of the statute in matters which are -necessary to confer jurisdiction of the person, and of the subject-matter, yet, when jurisdiction is shown, it is held that the judgments rendered, whether by an inferior tribunal or a court of general jurisdiction aeting under special law, “stand upon the same footing of unquestionable verity as. do judgments of courts when exercising general jurisdiction. Jefferies v. Wright, 51 Mo. 22; Evans v. Haefner, 29 Mo. 141; Maybe v. Railroad, 63 Mo. 465; — 150 — Gray v. Bowles, 74 Mo. 421; State v. Evans, 83 Mo. 322; Brown v. Walker, 85 Mo. 263; Hagerman v. Sutton, 91 Mo 530; Karnes v. Alexander, 92 Mo. 671; Thompson v. Railroad, 110 Mo. 147; Lingo v. Burford, 112 Mo. 149; Railroad v. Baker, 102 Mo. 533; Musick v. Railroad, 114 Mo. 309. In the case of Railroad v. Baker, supra, it was shown that Baker owned several tracts of land. Upon ' some of these Cook and Moberly held deeds of trust, while Lighteren held one against other tracts. The commissioners assessed the damage to these tracts separately, but on a trial in the circuit court the jury awarded the damages in one sum to Baker. This court held, on appeal by the railroad company, that the mortgagees alone had the right to complain of the manner in which the assessment was made. The clear implication of the court was that the assessment was not void but merely irregular. In the case of Gray v. Bowles, 78 Mo. 419, a judgment of a justice foreclosing separate tax bills against separate lots, charged the sum of all the bills against all the lots. A sheriff’s sale of the lots and deed thereunder was held valid in a collateral attack. To the same effect as in the Baker case, supra, are the cases of Railroad v. Boyer, 13 Pa. St. 497; Railroad v. Greve, 17 Minn. 322; and Knauft v. Railroad, 22 Minn. 173. The cases of Rusch v. Railroad, 54 Wis. 136 and Brennan v. St. Paul, 47 N. W. Rep. 55, assert the doctrine that an assessment giving a gross sum as damages for distinct tracts of land owned in severalty by different persons would be void, but we do not think these rulings in harmony with the spirit of the decisions of this court, nor the doctrine generally accepted in other jurisdictions. — 151 — It will be seen that the statute (chap. 66, Gr. S. 1865) as amended by the act of 1873, page 234, gives the circuit court, or judge in vacation complete jurisdiction over the condemnation of property for a union depot. This tribunal was given jurisdiction over this particular condemnation by the filing of the proper petition in court, and the proceedings, as stated in the petition of plaintiff show that Frederick was not only notified of the proceeding, but appeared thereto in court when the order was made appointing. commissioners, and again when the report of the commissioners was confirmed. We have then a case in which the court had complete jurisdiction of the subject-matter and of the person, and, under the foregoing well established principles, the judgment, though both irregular and erroneous, is not void and cannot be questioned in this suit. Moreover, upon an examination of the proceedings in the condemnation matter, we are unable to find that the commissioners committed the blunder they were accused of making. The petition, as we understand it, divided one tract into two parcels and gave the names of the owners of each. The commissioners divided the larger of these two parcels into two parts and assessed the damages to each, separately naming the same owners to each. We can.see no injury that could have resulted to the owners on account of this mode of assessment and we think it was within the powers of the commissioners to proceed in that manner. It only gave the owners two judgments without increasing the amount allowed. The fact that Frederick, one of the parties to the condemnation suit, afterwards recovered in ejectment a portion of the land from another party to the suit, cannot invalidate the whole proceedings. Indeed the statute expressly provides that all persons in possession — 152 — of the land, may be made parties, thus contemplating possible conflicting claims to the land, and intending to relieve the condemning party of becoming involved in the controversies of the claimants. The Union Depot Company paid to the clerk of the court the damages assessed, as it was authorized to do, and was not concerned as to which of the parties , interested might thereafter establish a right thereto. Railroad v. Baker, supra. Y. On the remaining question we also adopt the opinion of Sherwood, O. J., which is as follows: “But one point remains to be considered, the constitutionality of the statutes. Session Acts 1871, pp. 60, 61, sec. 4. The fee in this case was condemned, and the claim is made that this section is opposed to the constitution of 1875, article 2, section 21, which provides that: “ ‘The fee of land taken for railroad tracks without consent of the owner thereof shall remain in such owner, subject to the use for which it is taken.’ Section 4 of the act thus attacked reads as follows: “ ‘Every corporation formed under this act, in addition to the general powers conferred by the laws of this state in relation to corporations, shall have power: First. To take and hold for the purposes mentioned in this act such real estate as they may acquire either by conveyance to said corporations and such as it may acquire under the provisions of this act by condemnation. Second. To take, occupy and condemn any lands and real estate needed for the establishment of such union station or depot, and the same proceedings shall be had therefor as provided in chapter sixty-six (66) of the G-eneral Statutes, relating to the appropriation and valuation of land taken for telegraph, macadamized, graded, plank or railroad purposes, so far as applicable thereto, and when so condemned,'the — 153 — said land and any interest therein shall belong to such •corporation as owner thereof.’ “It will be at once observed that the constitution, in the provision quoted, is confined to “railroad tracks” alone, and does not' in terms extend to lands condemned for depot purposes. The law on this point is stated by a text-writer heretofore quoted in this way: “ ‘In the absence of any constitutional restraint, it rests with the legislature to say what interest or estate in lands shall be taken for public use. The whole matter thus being in the discretion of the legislature, it may authorize a fee to be taken, and necessarily may authorize any lesser estate or interest to be taken, according to its views of the requirements of the grantee and the demands of the public good.’ Lewis on Eminent Domain, sec. 277. . “But, if it can be conceded that the constitution forbids the taking of the fee even for depot purposes, still, in such case, the condemnation proceedings would not necessarily be void on that account; an easement at law would pass, and so this point has been ruled in regard to a statute which authorized the acquisition of an ‘absolute estate in fee simple’ in the land condemned.’-’ Beery, J., in reference to this subject, said: “ ‘The plaintiff further argues that section 13 is unconstitutional, because it provides that under the proceedings for condemnation, the defendant shall acquire ‘an absolute estate in fee simple’ in the land condemned, whereas, it is entitled to acquire an easement only — “a franchise of way” in the language of our constitution, art. 10, sec. 4. The answer this position is that, if the defendant could not, by reason of any constitutional provision, acquire anything more than the easement, the effect of section 13 would be limited accordingly; and the defendant would be permitted to acquire not “an absolute estate in fee simple, ” — 154 — but the easement only, the former, the greater, including the latter, the less.’ Scott v. Railroad, 21 Minn. 322. “Even when there was no such prohibition as now exists in our organic law, i.t was held that, notwithstanding the term Tee simple’ was used, yet, this was not to be taken in a technical sense, Wagner, J., remarking: “ ‘It is true that in speaking of the title which the company acquire the legislature here uses the term “fee simple;” but did it contemplate a fee simple according to the technical legal meaning of that term? * * * The use is vested in the public, but the reversionary title still continues in the owner of the soil. In my opinion, notwithstanding the language used, nothing more than an easement passed to the road, giving it perpetual and continuous title so long as it used the land for the purpose for which it was taken, but when that use was abandoned, then it would revert to the owner of the premises.’ ' Kellogg v. Malin, 50 Mo. 496.” Finding no error in the judgment of the circuit court, it-is affirmed. Brace, Barclay and Gantt, JJ., concur. Black, C. J., does not sit. Sherwood, J., dissents. Burgess, J., concurs, with the exception of the fourth paragraph, from which he dissents.