Mississippi & Tennessee Railroad v. Devaney

Shackelford, C. J., delivered the opinion of the court. The first case, No. 11057, is an action of ejectment; the second, an appeal from the verdict of a “jury of review,”'to condemn and assess damages for the right of way for a road-bed of five-eighths of a mile, from the line of the old road-bed of the Mississippi and Tennessee Railroad Company, to connect with the track of the Mississippi Central Railroad Company, on the north side of the Yallobusha river. The same questions are involved in both cases, and by desire of counsel they will be decided together. The jury in the ejectment case found a verdict for the defendant in error, and judgment was rendered upon it. In case No. 11058, they found a verdict for $3600, in favor of the defendant in error. A motion for a new trial was made in each case, assigning the same grounds in each case. 1st. Because the court erred in giving plaintiffs charge No. 2. 2d. For error in the court in refusing defendant’s charges. 3d. Because the jury found contrary to law and evidence. During the progress of the trials, exceptions were taken to the rulings of the court in granting the instructions asked by defendant in error, and to the action of the court in refusing those of the plaintiff in error. — 584 — These rulings of the court are made grounds of error in this court. All the testimony (an agreed.state of facts), is also embraced in the bill of exceptions taken to the rulings of the- court in refusing new trials. Which testimony, or agreed state of facts, is, in substance, that the Mississippi and Tennessee Railroad Company was chartered by an act of the Legislature of the State of Mississippi, on the 16th day of October, 1852, and by the terms of its charter authorized to construct a railroad from some point on. the northern boundary line of the State through certain counties, “ and to connect with the Mississippi Central Railroad at such point as they may elect.” The Company were empowered by their charter to enter upon and condemn land of private parties for the purpose of procuring the right of way, when the same could not be obtained by consent of the land-owners, and the manner of obtaining such condemnation, by jury of review, was .prescribed. The Company selected the town of Grenada, being immediately upon the south bank of the Yallobusha river. Abridge' across said river was erected, a few hundred yards from a similar structure belonging to and used by the Mississippi Central Railroad Company. The road-bed, and .bridge thus erected, were continually used from, the completion thereof until the. month of June, 1863 (having been used for two years), when the bridge of the Mississippi and Tennessee Railroad and the Mississippi Central Railroad were both burned by military forces. After the close of the late civil war, both companies being in embarrassed circumstances, occasioned by the loss of their bridges and their rolling stock, etc., they resolved to build a joint bridge, or partnership bridge, over , the Yallohusha river at Grenada, upon the piers of the Mississippi Central Railroad Company, with the permission, from said Mississippi Central Railroad Company to the Mississippi- , and Tennessee Railroad Company to run their cars over the track of the Mississippi Central road, a few hundred yards north of the Yallobusha river, — 585 — for the purpose of crossing the river upon said partnership bridge. To effect this object, it became necessary for the Mississippi and Tennessee Railroad Company to deflect from their former track on the north side of the Yallobusha river, and to have the right of way to build a new track about five-eighths of a mile, to enable them to connect their rails with those of the Mississippi Central Railroad. Jenkins Devaney, the defendant in error in the case before us, is the owner of the land lying between the two roads through which the Mississippi and Tennessee Railroad Company proposed to build their new or connecting track. Devaney and the plaintiff in error could not agree upon the price for the land upon which the road-bed for the track had to be constructed. Consequently the Mississippi and Tennessee Company, upon the 11th day of November, A. D. 1865, in the mode pointed out by their charter, caused a jury of review to be summoned; who, after inspection of the land surveyed for the new track, condemned the same to the use of the Company, and assessed the damages to be paid to Devaney therefor at three hundred dollars. This amount the Mississippi and Tennessee Railroad Company, on the 14th of November, 1865, tendered to the said Jenkins Devaney, who refused to receive the same; proof of the tender to Devaney appearing in the record. ' No further action was taken at that time by the Mississippi and Tennessee Railroad Company. On the 21st of November, 1865, the legislature of this State passed an act amendatory of the charter of the plaintiff in error, whereby they were specially authorized to make a connection with the Mississippi Central Railroad Company, on the north side of the Yallobusha river. A few days after the passage of said amendatory act, without any new survey, or jury of review, or condemnation, the company entered upon the land .originally surveyed, and condemned by the jury of review on the 11th day of November, — 586 — A. D. 1865, and for which they had tendered to the defendant in error the three h%mdred dollars. On the 13th day of April, 1867, the defendant in error instituted, in the Circuit Court of Yallobusba county, an action of ejectment against the Mississippi and Tennessee Railroad Company, for tbe recovery of the land surveyed and condemned by tbe said jury of review on tbe 11th day of November, 1865, and upon which said Company had in tbe mean time placed their road-bed, ties, and iron rails, and upon wbicb tbe cars of tbe plaintiff in error were then running. Shortly after, tbe commencement of tbe ejectment suit, on tbe 26th of April, 1867, tbe Mississippi and Tennessee Railroad Company bad another, jury of review summoned, who inspected and condemned tbe same land inspected and condemned by tbe jury of review of tbe 11th of November, 1865, and rendered a special verdict, assessing tbe damages sustained by Devaney at tbe same sum wbicb tbe former jury assessed — to wit, $300. They state in their verdict, in addition, that they make this assessment under tbe impression that Devaney is not entitled to claim as damages tbe value of the road-bed, cross-ties, and iron rails, wbicb tbe Company bad laid down upon tbe land in question nearly two years before, and wbicb tbe Company were then using. “ But if Devaney is entitled to claim said road-bed, cross-ties, and iron rails as bis property, that then they assess his damages at $3600 — namely, $300 for aetual damages sustained, and $3300 for tbe value of tbe road-bed, cross-ties, and iron rails.” From this verdict of the last jury of review Devaney appealed to tbe Circuit Court of Yallobusba county, and on tbe trial of this appeal tbe verdict of $360.0 was rendered by tbe jury. Upon tbe trial of tbe suit for damages tbe railroad company pleaded and relied upon tbe verdict of tbe “jury of review” of tbe 11th of November, 1865, and tbe condemnation of the land by tbe same, and upon tbe tender of tbe $300 assessed by said jury on tbe 14th day of November, 1865. Tbe railroad company, by their counsel, asked the court to charge tbe jury, “that, in estimating tbe damage sustained by — 587 — Devaney, they conid not estimate as pai’t of his damage the value of, the cross-ties, iron rails, and superstructure which has been placed upon the road-bed on said land by said company.” This instruction the court refused to give. Exception was taken to this ruling of the court, and allowed. At the instance of the defendant in error, the court gave the following instruction to the jury: “ That they, the jury, might consider the value of the cross-ties, road-bed, and iron rails, in estimating the amount of plaintiff’s damage.” To the giving of this instruction plaintiff in error objected, and excepted at the time. Upon the trial of the ejectment suit, as upon the trial of the suit for damages, the plaintiff in error pleaded and relied upon the tender of the amount assessed by the jury of review of the 11th of November, 1865, and upon their verdict of condemnation on the 11th of November, 1865, and upon the amended article of the legislature of the 21st of November, 1865, to their charter. The railroad company, by their attorneys, asked the court to give the following instructions: 1. “ That if the jury believe that before the railroad company entered upon the land they tendered, the amount of .the verdict found, on the 11th day of November, 1865, to the plaintiff Devaney, they would find for the defendant.” ' 2. “That if the jury'believe that the defendant entered upon the land in November, 1865, and upon the 4th of September, 1867, tendered the plaintiff the amount found due on the 26th of April, 1867, they would find for the defendant.” 3. “ That if the jury believe that defendant entered upon the land under the charter and amended charter, and built their road, and were using it as a public railroad under said charter, they would find for the defendant.” All of which instructions were refused by the court, and exceptions were then taken to the ruling of the court. The court then, at the request of the counsel for the plaintiff Devaney, charged the jury, “that if the railroad company relied for defence upon the fact that the land had been con — 588 — demned by a jury impanelled to assess plaintiff’s damages, under the provisions of defendant’s charter, then they must prove payment or tender of the amount found due.” The verdict for $3600 had been rendered against plaintiff in error previous to the trial of this, the ejectment suit; it evidently referred to this verdict. The plaintiff in error assigns the following grounds for error in both cases: 1. Error of the court below in giving charges asked for the plaintiff. 2. Error in the court’s refusal to grant charges asked for the plaintiff. 3. Error in the court’s refusal to grant charges asked by the defendant. 4. Error in the court in overruling motions for new trials. The first question raised and presented by counsel in the argument of the case is this: “Whether the connection made with the track of the Mississippi Central Railroad north of the Yallobuska river is in violation of the charter of the Mississippi and Tennessee Railroad Company, or whether the power to connect with the Mississippi Central Railroad was exhausted by the connection at their depot in the town of Grenada, on the completion of their road in 1861. i It is contended by counsel for the defendant in error that the election by the plaintiff in error to locate their depot at Grenada, and their location of the same there, and their connection with said road at that point, exhausted their right, under their charter, to connect with the Mississippi Central road at any other point; consequently, that the connection last made by the plaintiff in error with the track of the Mississippi Central road north of the Yallobusha river, is illegal and void. The depot of the Mississippi and Tennessee Railroad Company in Grenada is at the same place where it was originally located, on the completion of their road to that point. There has been no effort to change the depot, as shown by the proof in the case; all the plaintiff in error attempted to do, — 589 — and did do, was to reach their depot in Grenada, the terminus of their road, by connecting the iron rails of their road with those of the Mississippi Central track north of the Yallobusha river; by doing this they accomplished their object. They having sustained half the expense of erecting a bridge over said river, upon the piers of the Mississippi Central Bailroad Company, they acquired a right to run their cars over said bridge, and over a few hundred yards of the track of the Mississippi Central road. This connecting of the iron rails with those of the Mississippi Central road, as stated and shown by the diagram in the record, is not such a connection as was contemplated by the charter of the company; it is not the terminus of their road in a legal sense. There is no depot at the junction for the transfer of freight or passengers; their trains pass on and over the track of the Mississippi Central road without obstruction, to their depot at the terminus of their road in Grenada. The proof shows, that before the late civil war the cars of the plaintiff in error entered their depot in Grenada over their own road and "bridge. Their charter authorizes them to connect with the Mississippi Central road at such point as .they might select, where their road should terminate. It will scarcely be denied, that the plaintiff in error had the right and the power, under their charter, to connect their rails with those of the Mississippi Central Bailroad Company at any point above Grenada they saw proper, with the consent of the Mississippi Central Bailroad Company, previous to the construction and completion of their bridge over the Yallobusha river, and of their road to their depot in Grenada, and to run their cars over the track of the Mississippi Central Bailroad to their depot in Grenada. • If this position is correct, upon what ground can that right be controverted now ? Again, if the right of way had been purchased from the defendant in error, Devaney, over his land, as proposed by the plaintiff in error, and the connection made, as it has been done, without — 590 — opposition from Devaney, who could object to the running of their cars over their joint bridge and upon the track of the Mississippi Central road ? It is only necessary to ask the question to obtain its answer. The position of track of the Mississippi Central road, over which the plaintiff in error run their cars to their depot in Grenada, for all practical purposes is as much their road or track as if they, had originally owned and constructed'it. They have unrestricted use of it in common with the Mississippi Central Railroad; they own the bridge in common, and their legal right to the use of it is equal in all respects with that of the Mississippi Central. It only loses its identity as their road at the connection with the track of the Mississippi Central Railroad, at the depot of the plaintiffs in error in Grenada. We think the objections urged by counsel against the legality of “the connection” under discussion are unsupported by facts, and are therefore without force; they are based upon the idea, that this connection of the roads north of the Yallobusha river was a terminus of the road of plaintiff in error, when, in fact, the terminus, as the proof showSj is still at Grenada. Counsel for the defendant in .error contend, that the survey and condemnation of the land of defendant in error, Devaney, by the jury of review on the 11th day of November, 1865, to the use of the plaintiffs in error, and upon which the plaintiff in error have built a track from the old line of their road to the track of the Mississippi Central Railroad, are illegal and void. And, in support of this position, insist that the plaintiffs m error exhausted the power conferred upon them by their charter to take lands in invitum when they located their road and constructed it from Memphis, Tennessee, to Grenada, on the south side of the Yallobusha river, and rely upon the cases of The Little Miami Railroad Company v. Nayler, 2 Ohio State Rep. p. 235; Morehead v. Little Miami Railway Company, 17 Ohio, 340; State v. Norwalk and Danbury Turnpike Company, 10 Conn. Rep. 157; Griffin v. House, 18 John. Rep. 397, a turnpike case; Louisville and Nashville Branch — 591 — Turnpike Company v. Nashville and Kentucky Turnpike Company, 2 Swan, p. 282; Turnpike Company v. Hosmer, 12 Conn. Rep. 364, and other authorities. This question of the power of railroad companies to take lands in inviturd, for the purpose of re-locating, repairing, or altering their tracks or lines of road, is now for the first time before this court in the case now under consideration. The questions involved in the case have been elaborately argued by the counsel of both parties with great ingenuity and distinguished ability. The first authority we shall notice, relied upon by counsel for defendant in error, is the case of Morehead v. Little Miami Railway Company, 17 Ohio, 340. The railway company in this case had located their road through a street in the city of Cincinnati, Ohio, and when in full operation, it attempted to make a double track on a lot of a private individual, with a view of abandoning the line of track through the street. The court enjoined the company from further proceedings, giving, as their reason for so doing, that “ there was no necessity for the change, and it was not a case for the exercise of any implied power” citing the case of The Little Miami Railway Company v. Nayler, 2 Ohio, and affirming it. It will be observed from the language of the distinguished Chief Justice who delivered the opinion of the court in the case, there was “ no necessity for the change; ” clearly indicating thereby, that, if there had been a necessity for the change, the decision of the court would have been different. The facts of this case differ widely from those of the case under consideration: here, the bridge and the road over it had been destroyed by fire, and their depots isolated from the termvnus of thevr track on the north side of the Tallobusha river. The cars were in full operation over their road, through the street, to their depot, in the case of the Little Miami Eailroad, and they sought to change their track, as a matter of convenience, clearly. There was no necessity for a change, or for the exercise of impliedpowers. It may not be amiss to state here, that the decision in the Ohio case just referred to, caused the pas — 592 — sage-by the legislature of Ohio of an act authorizing all railroad companies in the State, or to be constructed, the, power to alter, re-locate, or repair their roads, by taking any lands they saw proper in invitum, upon the same terms specified and prescribed by their charters, viewing the decision of . the court in 17 Ohio as oppressive, and detrimental to the great railroad interests of that State. • In the next case of The State v. Norwalk and Danbury Turnpike Company, 10 Connecticut Rep. p. 157, the court, in deciding that the company had not the right to change their toll-gates at discretion, after they had been located, uses this language: “ As the power is not given to commissioners, but to proprietors, whose interests may not always coincide with the convenience of the public, to be exercised at their discretion, this authority ought not to be extended by construction.” In this decision, the judge who delivered the opinion of the court gives as a reason for the determination of the court, that the rights of the public had to be considered and recognized; that by construction the company should not have their powers enlarged. The-facts of the case showed there was no necessity for the change of gates. The court, in the case of Turnpike Company v. Hosmer, 12 Conn. 361, affirms the case of The State v. Norwalk and Danbury Turnpike Company, 10 Connecticut Rep., and uses this language: “ The position of the gates upon a turnpike road is a matter in which the company on one side, and- the public on the other, are deeply interested.” ■ “ That property and dwelling houses must be affected by such a chang-e or alteration.” “ It may, indeed, be slight, but still it is entitled to the protection of the law against a trifling injury, unless a fair construction of the charter authorizes the company to inflict it.” In the case of Griffin v. House, 18 John. Rep. 397 (a turnpike case), this language is used, in the opinion of the court: “That when the discretion had once been exercised the power is exhausted, and cannot be revived, so as to authorize the company to change and move their gate'to suit their convenience, without some strong a/nd manifest necessity to warrant it / — 593 — that the company had acted capriciously, and have lost sight of the trust reposed in them, by changing several times the location of the easterly gate, contrary to the first opinion, and without any apparent necessity for it? The last case cited in this branch of the case before us, is The Louisville and Nashville Branch Turnpike Company v. Nashville and Kentucky Turnpike Company, 2 Swan, p. 182. The court, after holding that the company could not change their gate, because the change would affect the right of the •public, uses this language : “ When the charter vests corporations with discretionary power in reference to the exercise of a particular right, and in the exercise of this discretion, so conferred, they may make an election (place for a toll-gate), and this election is final and conclusive.” “Notwithstanding this is so, however, the corporation may, if it chooses, abandon the use or enjoyment of the rights secured by election, if no detriment thereby accrues to the public? The courts, in the cases of Turnpike Co. v. Hosmer and Griffin v. House, recognize and affirm the rule contended for by counsel of defendant in error, but. at the same time give their reasons for the enforcement of the. same — that there was no necessity shown in either case for the changes of gates sought to be made by them; and that the changes, if made, would work injustice to the “public" who had rights that could not be invaded *“ without a ma/nifest necessity for such an invasion? In the case in 2 Swan, p. 182 last mentioned, the court gives the reason for the rule of construction contended for by defendant’s counsel, in the remark that the corporation can “ abandon the use or enjoyment of the rights secured by election, if no detriment thereby accrues to the public /” thereby clearly intimating, that if no detriment should accrue to the “public " by a change of gates (the court evidently means, by the use of the word “abandon,” that by the abandonment of one gate they had a right to erect another in its stead), the reason for the — 594 — rule ceases; and that such alteration of a gate would be legal, although there was no délegated power in the charter to make an alteration, after once locating it. We can see no reason why railroad companies should not be permitted to alter the location of their depots and their tracks, when no detriment to the public ensues therefrom.' If by the alterations the interests of the public arc subserved, more strongly the reason why the rule contended for by counsel for defendants should not be enforced against them. Certainly it should not.be done if the facts of the case under consideration show this was done. Counsel for plaintiff in error.cites us to the cases of the N. O. Carrollton Railway Co. v. Second Municipality of New Orleans, 1 La. Ann. Rep. p. 128; Knight v. Carrollton Railway Co., 9 La. Ann. Rep. 284; in Railway ex parte, 2 Richardson’s Rep. S. Ca. 434; and South Carolina Railway Co. v. Blake, 9 Rich. S. C. p. 229; and rely with confidence upon these cases, as decisive of their view of the question under consideration. In the first case above cited, the Supreme Court of Louisiana held that the Carrollton Railway Company, having a charter to construct a railroad between the town of Carrollton and the city of New Orleans, gave them the implied right or power to construct a branch, a branch railway, to a lot upon which they .had erected! a depot and turn-table in another part of the city of New Orleans, and off their direct line to their depot, as the ter minus of their road. The court uses this language in their opinion: “ The right to establish such a depot results necessarily from the right to establish and maintain the road. Consequently, they had the right to run their branch road to it, without any,direct authority in their charter authorizing the making, of two depots, or a branch road to one of them.” This conclusion was-arrived notwithstanding the objections here urged, were made and.argued with signal, ability by the distinguished counsel for the city of New Orleans. • This case was • afterwards cited and affirmed in the case of — 595 — Knight v. Carrollton Railway Company, 9 La. Ann. Rep. p. 284, wherein the same questions were involved. This case has many of the leading features" of the case before us. The case of Railway ex parte, 2 Rich. p. 434, was an appeal from the Court of Common Pleas, the petition of the Railroad Company having been denied by this court, for the reasons, “ that if it can be shown that the Company has no right to take the property, or whei’e the public necessity is doubtful, in both of which cases law and right are concerned, that it should not be taken.” “ The Company not having the power to take the property of citizens at their discretion, and the necessity for the taking the lands of the respondent, for any of the purposes mentioned "in the charter, not having been shown to the court, the motion to have commissioners appointed to survey the land and assess damages, must be refused.” This order was reversed by-the Supreme Court of South Carolina. Chief-Justice Richardson, delivering the opinion of the court, says: “ The Railroad Company had the same power to acquire land, either by grant or by compulsory proceedings, for the purpose of varying, altering, and repairing their road, as for the original purpose Of locating and constructing it.” The same opinion was adhered to by the coirnt in the case of ike South Carolina Railway Company v. Blake, 9 Rich. p. 229, with a qualification of the rule adopted in 2 Rich., affixing conditions not affecting the principles upon which the eases were decided. • . • , - Counsel for defendant in error insists that the rulings of the South Carolina Supreme Court are anomalous, and “ must be attributed to ike peculiar laws of South Carolina, that private property may be lawfully taken for public use, without compensation,” “ and' should not • be received "as authority in a State "with a constitution like ours.” Although it was decided in South Carolina that private property could be taken for public use, without compensation, in the ease of The State v. Dawson, 3 Hill’s Rep. 100, there being — 596 — no provision in their constitution against such rights of' the State. If the decision of the court is just, upon principle, it cannot be effected by the clause in the constitution of South Carolina referred to, because the charters of these companies contain provisions that the companies “ shall not take private property without just compensation is first made therefor;” and the mode of obtaining private property, when the same cannot be purchased at private sale, is pointed out in their charter. No effort was made by the Companies’ to obtain the lands of the parties resisting the right, other than by the manner provided therein. By recurring to the proof, it will be seen that the railroad of the plaintiff in error had been completed for two years, when their bridge (a “costly structure”) over the Yallobusha river was destroyed. At the same time (June, 1863) the bridge of the Mississippi Central road, over the said river, was destroyed by the military forces by fire. That, after the close of the Avar, both companies were so embarrassed by the loss of their rolling stock, and by the destruction of nearly all of their bridges, depots, etc., etc., that neither Company being able to build their bridge over the Yallobusha river, they determined, to build a joint bridge on the piers of the Mississippi Central Bailroad bridge, left standing, which they did. Permission from the Mississippi Central Bailroad Company to the plaintiff inei’ror was granted in "this contract for the Company to run their cars over a few hundred yards of the track of the Mississippi Central road, north of the Yallobusha river, for the purpose of enabling the plaintiff in error to run their trains over the partnership bridge, to their depot in the tOAvn of Grenada. These facts show that rival railroad companies, who had no interests in common, were driven, from necessity, on account of their crippled finances, caused by the war, to unite their Vmnited means for the purpose of rejga/irmg their roads in this particular. If either Company could have erected a new bridge, there — 597 — certainly would not have been a uniting of tbeir means to build one bridge. If tbe Mississippi and Tennessee Railroad Company could have rebuilt tbeir bridge, and tbe Mississippi Central Railroad Company could not have erected a new one, incalculable advantages would have accrued to the plaintiff in error, by tbeir being enabled to transport tbeir passengers and freight trains directly to tbeir depot in Grenada, connecting with tbe Mississippi Central track south of the river, thereby controlling and forcing freights and passengers, both ways, over tbeir road. It will be observed from our inspection of tbe diagram in tbe record, that it was impossible to connect tbe tracks of tbe two roads, unless tbe Mississippi and Tennessee Railroad Company should build a new track, of about five-eighths of a mile in length, from tbeir old track, on tbe north side of tbe river, to tbe track of tbe Mississippi Central Railroad, a few hundred yards south of tbe partnership bridge. This road could not be made unless it passed through the land of tbe defendant in error. Application was made to Devaney, by tbe Mississippi and Tennessee Railroad Company, to purchase tbe right of way over said land for tbe contemplated track; tbe defendant in error refused to sell tbe right of way to tbe Company. Under this state of tbe ease it would seem the only alternative left to the plaintiff in error was to rescind their contract with the Mississippi Central JSailroad for the erection of the partnership bridge, and surrender their depots in the town of Grenada, and establish a depot, on tbe north side of tbe Yallobusba river, at tbe terminus of tbeir old track, unconnected with the Central JSailroad track, to tbe great annoyance of tbe travelling public, to tbe great detriment of tbe pecuniary interests of tbe Company, if not to its destruction, or to pursue tbe course they did in having tbe land of tbe defendant in error condemned by a jury of review for tbe use of tbe Company, under tbe provisions of tbeir charter. Under tbe circumstances (shown by tbe proof) existing at this time, tbe partnership bridge over tbe Yallobusba river could — 598 — not lime been constructed unless the contemplated branch road was also laid, by tbe Mississippi and Tennessee Railroad Company. . The failure of one'would necessarily cause the failure of the other. As a natural consequence of such failures, the plaintiff in error would have been compelled to abandon their depot at the terminus of their road in Grenada. • There was not only a private, but a great and pressing public necessity operating upon the plaintiff in error to take the only course left to the Company by which two of the great railroad companies of the State would be enabled to repair their roads, and thereby restore them to active operations over their entire lines. The travelling public, the great agricultural and commercial interests of-the country, were to be benefited by the speedy completion of the roads. , The provisions of the charter of the plaintiff in error, in § 7, investing the President and Directors of the Company “ with all the rights, privileges, and powers requisite and necessary for the construction and repair and maintenance of the road,” invested them with the implied power to take lands in invitum, after the location and completion of their railroad, if there was a necessity for the exercise of this power, for the preservation of some right they would lose without the exercise of it, or for the repair or mcmvtenance of their road. The facts of the case existing prior to the action of the jury of review of the 11th of November, 1865, we think, brings the action of the plaintiff in error, in this particular, clearly within, the exceptions to the rule, deciding the cases cited, and relied upon by counsel for defendant in error. If we are right in this view of the law, and the facts of the case under discussion, it follows that the. condemnation of der fendant in error Devaney’s land, by the jury of review of the 11th of-November, 1865, was legal,, and the land thereby condemned vested in the plaintiff in error on the 11-th day of No-, vember, 1865, when the $300 land damages, so assessed for the — 599 — same, was tendered to the defendant in error by the plaintiff in error. ■ In this conclusion we are fully sustained by the decisions from 1st and 9th La. Ann. Rep., and 2 Richardson’s S. Ca. Rep. But we may have been mistaken in the disposition of the second question presented by the argument of counsel for the defendant in error; we shall therefore consider the facts of the case shown by the record to have existed after the action of the jury of review of the 11th of .• November, 1865, and tender of the damages assessed by them on the 14th of November, 1865, by plaintiff in error to defendant in error, with a view to the disposition of the third and last position assumed by counsel for the defendant in error, “ That the' entry upon the land in controversy, by the Mississippi and Tennessee Railroad Company, constituted them .naked trespassers, and for that reason the iron cross-ties and road-bed, laid upon the land in controversy, was the property of Devaney at the time of the trial of the cases, and that the verdict for their value in favor of defendant in error should not be disturbed.” Bor the purposes of this discussion, let'it’be' considered that the plaintiff in error had no legal right to enter upon the land in controversy, by virtue of the condemnation made by the jury of review and the tender of the $300 land damages, previous to the passage of the amendment tó their charter on the 21st of November, 1865, authorizing the Company to connect their track with the Mississippi Central road on the north side of Yallobusha river. "Were they naked trespassers' by their entry upon the land after the passage of said act, or did they enter under color of title? The charter of the plaintiff in error contained provisions authorizing the Company to exercise the rights of eminent domain, and to take such lands for the “ construction,'repair, and maintenance ” of their road, as they might see proper to appropriate to their use for these purposes. The plaintiff in error, believing they had the authority, by the power conferred by sections .Nos. seven and eight of their charter, to have the land of the defendant in' error taken in immitiom — 600 — after the failure to purchase it from him, caused the impanel-ling of the jury of review and the condemnation of the land to their use. Should the plaintiff in error have desisted from entering on the land because the defendant in error considered the action of the jury of review of 11th of November, 1865, void % There was no other land to be had over which the contemplated branch road could be constructed. There was no other course left the plaintiff in error but to enter on the land condemned, or attempt to do so; by either course the plaintiff in error would make a case for the adjudication of the power of relocation claimed by the plaintiff in error and denied by defendant in error. The defendant In error could have enjoined the plaintiff in error from constructing the road: this course would have settled the question of the legality of the action of the jury of review of the 11th of November, 1865. Counsel say Devaney was not required to do anything; that plaintiff in error knew the order of condemnation of the 11th of November, 1865, was void, and if the Company entered, it was at their peril. After the passage of the act amendatory of the charter of plaintiff in error aforesaid, defendant in error did not notify plaintiff not to enter upon the land, or enjoin the Company from so doing. The only allegation he could have made in opposition to the entry on the land would have been, that the verdict of the jury of review was void, because it was done before the passage of the Aet of the 21st of November, 1865, authorizing the Company to connect with the Central road north of the Yallobusha river. The impanelling of a new jury would have been the consequence, if the injunction had been granted; and a condemnation of the land would have been made, to which there could be no objections raised, except as to the amount of damages, or to the constitution of the jury of review. But the defendant in error preferred to stand by and see the plaintiff in error enter upon the land, to which they believed — 601 — they had a valid title, having complied with every requisition of their charter for their observance in subjecting lands in invitum to their use. The refusal of the defendant in error to receive from plaintiff in error the $300 land damages assessed by the jury of review of the 11th of November, 1865, was no obstacle to the entry of plaintiff in error upon the land in question. The payment or tender of the money so assessed had first to be made to the defendant in error by the Company before their right accrued to enter upon the lands. This condition precedent having been performed, there was nothing now required of the plaintiff in error by their charter to enable them to enter upon the land condemned as aforesaid to their use. This, Devaney knew. After the amendment to the charter of plaintiff in error, all doubts were at an end as to the power of the plaintiff in error to exercise their right of eminent domain in procuring land for them branch road. Then why the necessity of having a new jury of review, if the one first impanelled was in all things summoned and organized according to the requisitions of the charter of the plaintiff in error and the law, unless the defendant in error was dissatisfied with the amount of damages assessed by this jury. The proof shows that the jury was organized and acted in strict accordance with the law and the charter of plaintiff in error. The law never requires the performance of a vain thing. If this is true as a principle, was there a necessity for the summoning and impanelling of a new jury of review to do what the first jury had already done ? Certainly not, unless the defendant in error required one on the ground that the first did not assess sufficient damages; if he did not consider them large enough, he should have expressed this dissatisfaction to the amount so assessed, by appealing to the Circuit Court of Yallobusha county, or should have' demanded the new jury of review. He did nothing to indicate to the plaintiff in error the aban — 602 — donment of his rights to demand the $300 land damages. The course pursued by the defendant in error relative to the verdict of the jury of review of the 11th of November, 1865, before the entry upon the land in question by the plaintiff in error, and his failure to avail himself of the remedies given to him by the law to prevent an entry upon the same,- and his evasion of all objections to the substance of the verdict, preclude him from setting up the objection to this verdict, etc., now made here for the first time, and insisted upon so earnestly by his counsel; they are purely technical; and without legal force. Yiewing the verdict of the jury of review of the 11th of November, 1866, in the light taken of it, as to its legal effect, by the counsel for defendant in error, still we cannot regard the plaintiff in error as a nalced trespasser. The entry upon the land was T)ond fide, under the belief that the title was vested in the Company by said verdict after the tender of the land damages on the 14th of November, 1865, and of the passage of the amendment of their charter of the 21st of November, 1861. All these facts considered; their entry upon the land was clearly under color of title; consequently, the plaintiff in error is entitled to all legal protection to their improvements and property placed upon the .track, given by statute to parties in possession under color of title. The assembling of the jury of review of the 26th of April, 1867' (from the verdict of which defendant in error appealed to the Circuit Court of Yallobusha county, and from the verdict in said court the plaintiff in error has brought the cáse here by writ of error), was unnecessary; there was nothing for them to operate upon. -The verdict of the jury of review of the 11th of November, 1865, having condemned the land to the use of the plaintiff in error, the title was divested out of the defendant in error by the tender of the $300 land damages, on the 14th of November, 1865, and vested in the Mississippi and Tennessee Kailroad Company. • The proceedings under the jury of review of the 11th of November, 1865, constituted, we think, a valid defence to the action of ejectment No. 11,057. — 603 — We are therefore'of the opinion that the court erred in giving the instructions asked by the plaintiff below, and erred in refusing tbe instructions 'asked by tbe plaintiff in'error. Tbe judgments in both. cases must be reversed, and a new trial granted in both cases.