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    North Missouri Railroad Company, Appellant, v. Lackland, Respondent.
    1. A proceeding instituted in a circuit court in behalf of the North Missouri Kailroad Company, under its charter, to obtain a condemnation of land upon which it had located its railroad, is a proceeding in which the court acts in its ■ judicial capacity; an appeal will lie to the Supreme Court from the final TTi/d mnorvf' +1m^ ninmiil ooni'l in on/-»!-» yw/-\r>0£»fli'n <V

      2. Quere: Whether it would he competent for the legislature, in providing a mode for the condemnation and appropriation of private property to public uses, to make the judgment of a special tribunal final, and thus place the matter beyond the control of the courts.
    3. The North Missouri Eailroad Company instituted proceedings under its charter to obtain a condemnation of land upon which its railroad was loca' ted; held, that said company might, at any time before final judgment in such proceeding, change the route of the railroad and dismiss the proceeding.

      Appeal from St. Charles Circuit Court.

    This was a proceeding instituted by the North Missouri Railroad Company to obtain the condemnation, for the use of said company in the construction of its railroad, of a lot in the city of St. Charles belonging to defendant, Norman Lackland. No petition was filed in the office of the clerk of the circuit court, but an agreement under seal was entered into between the parties, whereby three commissioners or viewers were appointed, to whom the question of compensation was referred, and who were by said agreement authorized to assess the value of the property taken, in like manner and with like effect as if they had been duly appointed under the terms of the charter by the judge of the circuit court, and to make report of their proceedings, upon which action might be taken in the circuit court in like manner and with like effect in all respects as if proceedings had been regularly commenced in the mode prescribed in said charter. This agreement was dated September 12, 1855. On the 24th of September, 1855, the viewers or commissioners filed their report in the clerk’s office of the court, awarding to defendant damages in the sum of 14200. To this report no exceptions were at any time filed by the plaintiff, North Missouri Railroad Company ; but on the 23d of October, 1855 — being the second day of the term of the circuit court next after the filing of said report — the company, by its counsel, asked in open court á dismissal of the proceedings; which was thereupon ordered. Defendant’s counsel was not in court at the time, and no objection was offered to the dismissal. No motion or other action had then been taken in the case since the filing of the report. On the 30th of October, 1855, being at the same term of court, defendant’s counsel moved the court to reinstate the case; which was done — the plaintiff’s counsel not being present and no objection being offered. At the same time the defendant moved the court to confirm the report of the viewers or commissioners. The case as it then stood was continued to the May term, 1856, at which term the plaintiff filed a motion to dismiss the cause because its railroad had been removed from defendant’s land, and was in process of construction on other land than that of defendant; and further, that the land of de fendant was not required and could not be used for any of the corporate purposes of the company, and that the plaintiff could not therefore acquire and hold any title to the same under this proceeding.
    It appears from an agreed statement, that, at the time of the appointment of commissioners and of the filing of their report, the location of the North Missouri Railroad was upon the land of defendant; but after the report was filed a resurvey was made by plaintiff, which resulted in locating the road upon another route not upon defendant’s land; and thereupon the plaintiff abandoned the route over defendant’s land, and directed the discontinuance of all pending proceedings for the condemnation of land on the route which went over de-' fendant’s land.
    The court overruled this motion to dismiss, and sustained that of defendant to confirm the report of the commissioners, and gave judgment against the plaintiff for the amount assessed by the commissioners, and by its decree vested the title to the land in the plaintiff. The court overruled a motion for a review made in behalf of plaintiff; whereupon plaintiff appealed to this court.

      E. A. Lewis and Coatter, for appellant.
    I. In proceedings such as the present the relations of the parties are not changed, nor does any new right become vested in either party until the rendition of the judgment. Proceedings of this kind in this country are not as in England in the nature of a “ compelled contract” of purchase and sale. The various acts of Parliament prescribe the following steps: 1st, the railway company must, in its application for a charter, designate the lands over which the proposed road is to run; 2d, being authorized by the charter to purchase the lands designated, and failing to agree with an owner, the company must give him notice that it requires his land, and offer him a fixed price therefor; if no price be offered with the notice, the latter has no validity; 3d, the owner must respond, stating the particulars of his title, and either accepting the offer, or declining it with a counter proposal; 4th, if thus far the parties do not agree, a jury is empanelled to decide between the respective propositions of the parties ; 5th, upon the rendering of the verdict this is registered as a deed of conveyance from the land owner to the corporation. Every step from the first to the last is part of a formal negotiation between seller and purchaser, resulting in a transfer for a price and not for “ compensation.” (See Chambers and Peterson on Railways, 174.) Accordingly, the English courts hold that the relation of vendor and purchaser may exist at various periods anterior to the verdict, and that consequently the rights of the parties will have become vested at such periods. These decisions are all based upon the fundamental theory that Parliament, in its omnipotence, constituting and declaring itself an agent of the land owner, bargains and sells his land to a party competent to bargain and buy. The first move in the negotiation is the charter, which specifically designates certain lands, and on behalf of the owners offers them to the company as a proposed purchaser. In this country, however, the whole theory and system are essentially different. Although, perhaps, not precisely analogous, there is at least the same extent of difference between the two systems that appears between acquisition by voluntary contract and acquisition by confiscation. The proceedings here are based upon an implied constitutional power in the state of “ taking” private property for public purposes, provided that compensation be made therefor. No negotiation is implied in any of the statutory provisions. No state or federal court in the Union lias yet regarded these proceedings as presenting, at any stage, the elements of a contract between the parties. No legislature in the confederacy has power to compel a man to sell and convey his property to a person or corporation as such. The British Parliament may and does do so. Accordingly, it has been found necessary to do in this country, what was never done in England, to-wit, to settle by adjudication that the construction of a railroad is a “ public purpose” and within the meaning of the constitution. Thus all the American adjudications, without exception, treat these proceedings upon the following theory : 1st, the legislature has a right to take the property of the individual under certain restrictions and to declare how it will exercise that right; 2d, when the mode so asserted by the legislature has been fully acted upon, it is then assumed that the state has “ taken” the property; whereupon the owner has a vested right to compensation thefe-for, whether the state afterwards makes any use of the property or not. Accordingly, in all the New York, New Hampshire, Massachusetts and Missouri cases, where at any stage of the proceedings the right of the public to discontinue was denied, it will be found upon examination that all the acts by which the legislature had previously declared it would “ take” the property had been consummated. The case in 20 Johns. 269, which may be an apparent exception to this, was after-wards overruled by the same court in the case of The People v. City of Brooklyn, 1 Wend. 322. (See Wilkerson v. Buchanan County, 12 Mo. 328; Sess. Acts, 1839, p. 107; 2 Mete. 558; 4 New Hamp. 517; St. Erangois County v. Peers, 14 Mo. 537; St. Erangois County v. Marks, 14 Mo. 539; Harrington v. Commissioners of Berkshire, 22 Pick. 563.) But while, in all the above cited cases, every thing prescribed by the legislature for the taking of the property had been done as required, in the present case the distinctive feature is presented, that one of the prescribed steps, and that too which is expressly appointed to inaugurate the new relations of the parties, had not been taken when the right to discontinue was asserted. The land owner’s right to compensation can not, in any event, vest before that of the public to the land. Wherever any thing has remained to be done under the charter of a railroad company or a statute, and a discontinuance has been asked for, it has not been denied, but granted as a matter of right. In other words, if the law under which the proceedings were instituted required a judgment at their conclusion, then the public had a right to discontinue at any time before that judgment was entered. (See Hudson River R. R. Co. v. Cutwater, 3 Sandf. Sup. C. 689 ; People v. City of Brooklyn, 1 Wend. 332 ; Canal Street case, 11 Wend. 154; 6 Johns. Ch. 49 ; Laws of N. Y. 1848, p. 39.) A review of all the adjudications, therefore — as well those in which the right to discontinue was denied as those in which it was admitted — discovers a uniform adherence to the following rules: 1st, the right of the public to discontinue proceedings and abandon the contemplated roadway is unquestionable until rights shall have vested in the parties, whereupon it ceases; 2d, the right of the owner to the ascertained compensation vests whenever the public acquires the right to use the property, and not before; 3d, the right of the .public to use the property vests when all the acts pointed out by the special statute — whether that includes a judgment or otherwise— have been consummated, and not before. The recent case of Walther v. Warner, (see ante, p. 277,) has given to these rules a more rigid application, in effect, than that here contended for. The provision of the charter, that upon the filing of the commissioner’s award the court “ shall enter judgment,” &c., is merely directory. (Hudson R. R. Co. v. Out-water, 3 Sandf. S. C. 689; see also Sess. Acts, 1855, p. 233, § 3 ; Underwood v. Lilly, 10 Serg. & Raw. 151; 9 Barb. S. C. 482 ; 6 Barr. 196 ; 2 Dougl. 197 ; 12 Sm. & Marsh. 347 ; 2 Watts & Serg. 251; 3 Denio, 382; 6 Cranch, 87; Sess. Acts, 1858, p. 133, § 23, p. 144, § 56; Hoffman v. City of St. Louis, 15 Mo. 651.)
    II. An appeal will lie to this court from the judgment of the St. Charles circuit court. The proceedings were before tbe court as a court, and in this respect this case may be distinguished from that of The Hannibal & St. Joseph R. R. Co. v. Morton, 20 Mo. 70. The present appeal — being excluded from the practice act of 1819 by article 80, § 6 — is governed by the revised code of 1845 (see R. 0. 1845, p. 831, § 11), which covers “ any final judgment or decision of any circuit court in any civil case.”

      C. D. Drake, for respondent.
    I. It is necessary to a proper understanding of this case to consider the position of the parties if the charter of the company contained no power to condemn lands for the company’s use. That position would be, the land' owner on the one side with a title held in full property against all other men, and the company on the other needing the land, but with no power to obtain it without the owner’s assent. The only mode by which the company could obtain it would be by purchase, which in law includes every mode of acquiring land by a lawful act of the party. Every purchase necessarily involves, in some form or other, a purchaser acting in the purchase, and a vendor acting in the sale either by a voluntary act or by the efficacy of some proceeding in law in invitum held to be equivalent in its effect and results to the voluntary act. If the land owner refuse to assent, it is therefore impossible for the company to acquire the land. At this point the state, in its sovereign capacity and in the exercise of the right of eminent domain — subject to which the owner holds the land — steps in, and declares by enactment that the company, if certain terms be complied with, shall acquire the land. In this the state does not undertake to dispose of its own property, or to invest the company with its own title, but to dispose of, and invest the company with the title of an individual citizen. But this exercise of the right of eminent domain is limited by the constitutional requirement of just compensation to the owner; and the state therefore undertakes that a just compensation shall be paid him, and at the same time compels him to accept that compensation, and in consideration thereof to sell his land to the company. Nor does the state in this proceeding speak for and represent itself. Its mere assent to the acquisition of the land by the company would be of no avail to pass the title, for the assent of the owner, would still be wanting. When therefore, in the exercise of its paramount authority, the state declares that the company shall have the land- — and the company can obtain it only by purchase, and the purchase can not take place without the owner’s assent, and the state undertakes to give that assent — the state must be considered as representing the owner, and giving for him and in his name an assent, which, however compulsory on him, is in law regarded as his, which he can not question or repudiate, and the consequences of which he can not avert. The state represents him likewise in protecting his right to a just compensation. While it gives his assent to the sale, and thereby divests him of his property and transfers it to the company, it also demands and compels the payment to him of the compensation; and when this is done, the agency of the state in the matter ceases. In every light therefore the state is the representative of the owner, speaking and acting for him by fundamental right, and without any power in him to gainsay or prevent. Possessing this fundamental right and acting in this representative character, the state declares to the company that it may acquire the land upon the payment of a stun of money to be fixed by three commissioners appointed in a specified mode. This declaration being made in the only way the state could make it — that is, by a written law — there is, so far as the ownership of the land is concerned, an assent or agreement, in the most authoritative form known to our institutions, to sell the land to the company. Whether this be considered as properly and strictly the owner’s assent or agreement, as we contend, or as an act of confiscation on the part of the state not involving assent or agreement on his part at all, but directly in opposition to his wishes, and perhaps disregarding and overriding his actual dissent, matters not; for, if only the latter, it is certain that the state does not act for itself but for him, taking his land and exacting the compensation for it, paying the compensation to him, and then decreeing the land to the company. The sale following the confiscation — if that be the proper term — is without doubt with the state’s assent; which assent — being in relation to the owner’s property, and having the effect to securing his right to just compensation, and not for any affair or property of the state — must, in legal contemplation, be regarded in the same light as that of a trustee for his cestui que trust, or of a guardian for his ward. Here then is the assent of one party — the vendor — given by the state. What is the next step ? Nothing on his part, but some act on the part of the company desiring to own the land. What is that act ? Simply the presentation of a petition to a designated tribunal by the company, asking to be invested with the title to the land in the mode prescribed. This is, when reduced to its elementary form, merely an acceptance by the company of the terms on which the state has declared it may purchase the land. When this petition is filed, the other assent — that of the purchaser — is obtained; and at that moment a contract in solemn and authoritative form is entered into — the state, on the one side, speaking through an enactment — the company, on the other, through its petition ; the state,, on the part of the owner, agreeing to sell — the company agreeing to buy. From the moment that petition is filed the land and its owner are bound. He can not alienate the land so as to avoid the company’s right; he can not seriously impair its value without subjecting himself to the restraining action of the judiciary, if the company invoke it. He can not resist the progress of the proceeding to the conclusion authorized by the law. The right which the company acquires by filing the petition is a vested right; vested in the very commencement of the proceeding, and not capable of being devested if the terms of the law be complied with. It exists only in virtue of its agreement to take the land on those terms. The other party to that agreement is the owner, represented by the state, whose assent the state has already given. This right of the company, viewed in its legal aspect, is nothing more or less than a right to a specific performance of the state’s engagement on behalf of the owner. As this right can not exist, consistently with legal principles, in favor of one party and not in favor of the other, it follows that the owner may equally insist on a specific performance of the company’s agreement. Any other view places the owner at the mercy of the company, and renders him liable to interminable vexations; for there is nothing to prevent the presentation of one petition after another, and the dismissing of them, to any extent the company may see fit. The conclusion from the whole argument, therefore, is, that the company had no legal right, after filing the petition, to dismiss the proceeding; and much less after the appointment of the commissioners and the filing of their report and the company’s failure to except to it within the time prescribed by the statute, which is equivalent to agreeing to it. This conclusion is in accordance with the tenth section of the charter of the company, which requires that if no valid objection be made to the report within ten days after it is filed “ the court shall enter judgment,” &c. Up to this point the argument has proceeded upon the assumption of an assent by the owner, given by the state for him, and in law regarded as his in effect, whether actually so or not. But this assumption is not indispensable to sustain the position that the filing of the company’s petition was a contract on its part to take the land. The law recognizes contracts where the obligor is competent but the obligee is not, and enforces such contracts— as in the case of infants — where they are for the benefit of the obligee. If, in the case in hand, it be held that there was no contract or assent on the part of the owner, still there was a contract on the part of the company in his favor, which the law will, and should, enforce. (The King v. Commissioners, &c. 4 Barn. & Adol. 383 ; The King v. Hungerford Market Co. 4 id. 327 ; Doo v. L. & C. Railway Co. 1 Engl. Railway cases, 257 ; Stone v. Com. Railway Co. id. 375 ; Tawney v. Lynn & Ely Railway Co. 4 id. 615 ; Walter v. Eastern Counties Railway Co. 6 Hare, 594; Burkinshaw v. B. & O. J. Railway Co. 4 Engl. L. & Eq. 489 ; Regina v. B. & O. J. Railway Oo. 15 Q. B. 634; 4 Eng. Law & Eq. 276; Pinchin y. L. & B. Railway Co. 5 De Gex, Macnaughton & Gordon, 851, 864 ; Wilkerson y. Buchanan County, 12 Mo. 328 ; 85 Brit. Stats, at Large, 141, 146.)
    II. This proceeding can not be regarded as an action at law or a suit in equity. It is a special statutory proceeding for effecting a particular object in a prescribed mode. The court in the execution of the special powers conferred upon it could do no more than the statute under which it acted authorized. The charter of the company did not authorize the court to dismiss tiffs proceeding on the motion of the company; it could not therefore legally do it, any more than without statutory authority it could render judgment against the company for the damages assessed or decree the land to the company. (Matter of Beekman street, 20 Johns. 269.)
    III. This not being an action at law nor a suit in equity, no appeal lies to this court. The charter of the company gives no right of appeal, and the general law in regard to appeals — the practice act of 1849 — does not reach this case. (Hannibal & St. Joseph R. R. Co. v. Morton, 20 Mo. 70.)
    IV. The third section of the act of December 12, 1855, (Sess. Acts, 1855, Adj. Sess., p.-,) did not confer the right to dismiss the proceedings. Whatever rights had been previously acquired could not be affected by it.
   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 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 originated 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 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 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 ,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 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. 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 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 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.


source: Caselaw Access Project

author: Napton, Judge,

license: Public Domain

text:
    The North Missouri Railroad Company, Appellant, v. Reynal, Respondent.
    1. North Missouri Railroad Co. v. Lackland, (ante, p. 515,) affirmed.
    ,2. Where a railroad company, after having commenced proceedings for the condemnation of land upon which its railroad is located, exercises its right of dismissing the proceedings before the judgment of the court upon the report of the viewers or commissioners is rendered, the company should pay the costs and expenses growing out of the suit.

      Appeal from St. Charles Circuit Court.

      E. A. Lewis and Coalter, for ajipellant.

      C. D. Drake, for respondent.
   Napton, Judge,

delivered the opinion of the court.

This case is in all respects like the case of the same company against Lackland, except that the appellant here — after notification that his lot in St. Charles was wanted by the company, and after it had been assessed by commissioners— abandoned his business, which was that of a carpenter, and removed to a farm in the country, selling off the tools of his trade before removal. As the company had a right to discontinue their proceedings previous to the judgment of the court upon the assessment, the inconvenience and pecuniary loss attending the appellant’s course is not chargeable to the ^company, but they, will be made to pay the. costs and expenses growing out of the suit, as in the case heretofore decided. The other judges concurring, the judgment is reversed, and the cause remanded.


author: Napton, Judge, BiCHARDSON, Judge.

text:
    Louisiana & Frankford Plank Road Co., Respondent, v. Pickett, Appellant.
    1. The eighth section of the “ act to authorize the formation of associations to to construct plank roads and macadamized roads,” approved Pebruary 27, 1851, (Sess. Acts, 1851, p. 259,) is in conformity to the constitution in so far as it authorizes the jury, appointed to assess the damages received by the land owner, to take into consideration the “advantages of said road to said owner.”
    2. The “ advantages” which may be taken into consideration in determining the “just compensation” to which the land owner is entitled, are the direct and peculiar benefits or advantages accruing to him in particular in respect of the residue of his land unappropriated, and not any general benefit or increase of value received by such land in common with other lands in the neighborhood.
    3. The provision contained in the eighth section of the “ act to authorize the formation of associations to construct plank roads and macadamized roads, (Sess. Acts, 1851, p. 259,) authorizing the appointment of a “jury oí five disinterested land owners of the county to assess the damages,” &c., is in conformity with the constitution; they do not perform the proper and usual functions of a jury in civil or criminal cases.

      Appeal from Pike Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      E. Hunt, for appellant.
    I. The “just compensation” to which the defendant was entitled was the value of the land taken without regard to any supposed advantages of the road to the defendant. (Constitution, art. 13, § 7.)
    II. This value should be assessed by a jury of twelve men.
    III. The proceedings are also erroneous and void because they do not show what quantity of land has been taken for the road; how wide a strip of how long ; or where it enters or leaves the quarter section ; nor is there any description separating it from the land not taken for the road.

      A. H. Buckner, for respondent.
    I. No exceptions were taken to tbe direction of tbe court to tbe jury as to tbe mode of assessment; nor was tbe objection made before tbe jury.
    II. Tbe road bad been surveyed and located, and tbe petition states the quarter section through which tbe road is located ; so that if tbe award of tbe jury does not specify the particulars, they can be made perfectly certain. “ That is certain which can be made certain.” (4 Whart. 47.)
    III. The act is constitutional so far as it authorizes tbe advantages to be set off against tbe injury sustained. (8 Barr. 445; 13 Barb. 169 ; Whitman v. Wilmington B. R. Co. 2 Harring. 514.) Damages may be assessed in any fair and equitable way without a jury. (Gardner v. Newburg, 2 Johns. Ch. 162, Jackson v. Winn, 4 Litt. 323 ; 2 Mass. 489 ; 4 Whart. 47.)
   Napton, Judge,

delivered the opinion of the court.

The application of the Plank Road Company to the justice, in this case, stated that the road, as surveyed and located by their engineer and adopted by their board of directors, ran over the defendant’s land, and the quarter section occupied and owned by the defendant is particularly described; but the exact route of the road is not specified any further than by reference to the survey of the engineer, which was not made a part of the petition nor filed with the papers.

In the circuit court, to which the case ultimately went by appeal, a jury of five men was ordered, and it was agreed that their sealed verdict should be filed in vacation and a judgment entered thereon by the court. At the first term of the court after the verdict was rendered, a motion was made to set aside the proceedings and dismiss the case, 1st, because the 8th section of the act of February 27, 1851, entitled “An act to authorize the formation of corporations to construct plank roads and macadamized roads,” was unconstitutional; 2d, because a jury of five men instead of twelve were appointed ; 3d, because the jury were directed to allow advantages to set off tlie value of tlie land; 4th, because the application to the justice was not specific enough in relation to the exact position and quantity of the land desired to be condemned.

Upon this motion all the proceedings before the justice, and the appointment of a jury or commissioners by the circuit court, and the instructions of the court to the commissioners, were submitted to the court, and the motion overruled and, bill of exceptions taken. The instructions thus referred to in the bill of exceptions are as follows: “ The jury shall go upon the land over which the road is proposed to run, and shall assess the damages sustained by said Pickett, taking into consideration the advantages, if any, which said road may be to said Pickett, and the jury shall make out in writing their verdict and all shall sign it, and it shall be sealed and delivered to the clerk by one of the jurors.”

The point in relation to the constitutionality of the layr in question has been already considered and decided by this court in the case of Newby v. Platte County, ante, p. 258. The instruction given by the court was erroneous in not restricting the jury to such direct and peculiar benefits or increase of value as were occasioned to that part of Pickett’s land not taken for the road, and directing them to discard from their consideration any general benefit or increase of value received by such land in common with other lands in the' neighborhood. This has been determined to be the proper construction of this and similar statutes. (See Newby v. Platte County, ante, p. 258; Pacific Railroad v. Chrystal, post, p.-.)

The appointment of five instead of twelve men to assess the damages is not, in our opinion, inconsistent with the constitution. That provision in the state constitution which declares that the right of trial by jury shall remain inviolate is not applicable to cases of this character. The persons appointed to assess the damages in cases of this kind do not perform the proper and usual functions of a jury in civil or criminal trials. They might with more propriety be termed commissioners, and their number is a matter of discretion with the legislature. (Livingston v. The Mayor of New York, 8 Wend. 100.)

The application to the justice should have stated with more, certainty the particular land desired; but as the line of the road was surveyed, and a reference made to the survey in the application, we should not for this cause alone think it necessary to reverse the judgment. The motion to dismiss was properly overruled; but the court should have appointed another commissioner with proper instructions.

The other judges concurring, the judgment is reversed, and the cause remanded.

BiCHARDSON, Judge.

I concur in the reversal of this judgment because it does not appear, from any part of the record, what portion of the defendant’s land the plaintiff proposed to' take and occupy for its road. The survey is not made a part of the petition, and is not referred to in the judgment; and, as it does not appear where it is filed, it can not connect itself with the proceedings so as to identify the land sought to be taken. The commissioners may have estimated the damages in reference to a particular location of the road through the defendant’s land, and reported no injury; whereas, if af-terwards the plaintiff should adopt a different route than that examined by the commissioners, the defendant might suffer great loss, which he could not avert by the judgment of condemnation; for it fails to show the line of the road in reference to which the estimate was made. ■

But I am not satisfied with the rule which the majority of' the court have laid down in reference to the computation of benefits to be set off against the damages for the right of way. I do not think the point is decided in Newby v. Platte County. (See ante, p. 258.) The learned judge who delivered the opinion in that case mentions the rule adopted in ’ Massachusetts, and suggests that the legislature seems to have recognized the principle in the St. Louis charter; but he does not give bis own opinion, and the question was left open. I have always supposed that the constitutional provision, that “ no private property ought to be taken or applied to public use without just compensation,” only meant that the person whose property is taken for a public work should be indemnified against loss, and that it was only intended to secure redress for any damage that might result from the exercise of the right of eminent domain. Compensation is an equivalent for property taken or for an injury done to another ; and the spirit of the term “just compensation” is preserved when the person whose property is taken is made whole. If the owner is benefited more than he is injured, it can not be said that he has sustained a loss or that he has not received a “just compensation.” The constitution does not determine how the equivalent shall be made; but it seems to me that it does not contemplate the payment of damages to an owner for the privilege of running a road through his land, when the enhanced value given to the-land is greater than any injury it sustains; and any appreciable advantage accruing to the property ought to be taken into the account in appraising the damage.

If a railroad is made through a tract of land of one thousand acres, worth five dollars per acre, situated in a large prairie remote from fuel, timber or market, and ten acres of the land, worth fifty dollars, are taken for the road, but the direct and certain consequence of the location of the road is to enhance the value of the whole tract ten dollars per acre, it could hardly be said that the owner was damaged, or that he should be paid a premium for having a market and other conveniences brought to his door. And though his neighbor, whose lands are not touched, may also be benefited by the construction of the road, his gain is none the less, and he can not complain that the enhancement is not local and peculiar to him alone. The material question is whether the property, in reference to the value of the whole tract, is benefited or injured.

This view of the subject is maintained with much ability by the courts of several of our sister states. (Greenville & Columbia R. R. Co. v. Porltow, 5 Rich. 428; 8 Penn. 441; Alton & Sang. R. R. Co. v. Carpenter, 14 Ill. 190 ; Pierce on Am. R. R. Law, 206.)


author: BichardsoN, Judge,

text:
    North Missouri Railroad Company, Defendant in Error, v. Gott, Plaintiff in Error.
    1. In a petition in behalf of the North Missouri Railroad Company for the condemnation of the land upon ■which its railroad was located, it was alleged that the road passed hills and valleys, and that a strip of one hundred and fifty feet in width was necessary for the construction of the road; held, that tills allegation was not traversable.
    2. In a proceeding, instituted in behalf of the North Missouri Railroad Company to condemn land, three commissioners or viewers were, in accordance with prayer of the petition, appointed to assess the damages; held — it not appearing that said company had accepted the provisions of the general railroad law of February 24, 1853, (Sess. Acts, 1853, p. 128,) requiring the appointment of five commissioners, &c. — that the proceeding was properly conducted -under the act of incorporation of March 3, 1851. (Sess. Acts, 1851, p. 483.)

      Error to Montgomery Circuit Court.

    The commissioners appointed by the court to “ assess the damages” sustained, adopted the following rules: “ 1. The commissioners should assess and give damages for the land taken for the road at its market value at the time taken. 2. They should take into their consideration the enhanced value of the whole tract of land, through which the road runs, in consequence of the road, and also the injury the road is to the whole tract by separating its parts or otherwise, and offset the one against the other, and give to the owner by way of damages any excess of injury over such advantages.”
    The commissioners assessed the “ compensation” of defendant at $287.40.

      Hunt and Broadhead, for plaintiff in error.
    ' I. The court ought to have called for evidence to sustain the issue, whether there were hills and valleys on the sur-veyecl route rendering one hundred and fifty feet necessary to construct the road. (General Railroad Law, Sess. Acts, 1858, p. 121, § 15).
    II. Five commissioners should have been appointed instead of three. (Sess. Acts, 1853, p. 121, § 15.)
    III. The petition asks for an absolute title, and the court by its decree granted it, whereas the general railroad law only gives the use of the condemned land to the company.
    IY. On refusing to set aside and dismiss the whole proceedings the court ought to have appointed a new board of commissioners. They adopted a wrong rule in assessing the damages. They ought not to have taken into consideration the enhanced value of the land which was common to all the adjacent lands, and offset this increase of value and general benefit against the special and local damage sustained by the defendant by having his land divided into small and valueless parts. The commissioners can only offset local and special benefits against local and special injuries. (18 Barb. 169 ; 16 Barb. 6,100, 273; 17 Wend. 649.)

      E. A. Lewis, for defendant in error.
    I. The motion to set aside the report and appoint a new board of commissioners was properly overruled. The commissioners did not exceed their authority in assessing damages upon one hundred and fifty feet width; for that was what they were expressly appointed and required to do by competent authority. It was not within their province to decide whether one hundred and fifty feet or less would meet the necessities of the company, but only to assess damages for the land described in the petition. (Sess. Acts, 1851, p. 485, § 9.) The affidavits of Magee and Lee show that there were “ hills and valleys” within the contemplation of the charter. (Sess. Acts, 1851, p. 485, § 7.) The question of the insufficiency of the damages can not be reviewed in this court upon the record presented.
    II. The motion to dismiss the proceedings was properly overruled. The proceedings were properly instituted under the charter of the company and not under the general railroad law. The provisions of the latter have exclusive application to companies organized under that act alone. The asking for a fee simple title is in conformity with the charter, (Sess. Acts, 1851, p. 485, § 10,) and the provision granting the same is not unconstitutional. (21 Mo. 294 ; 8 Whart. 555 ; Walther v. Warner, ante, p. '217.') But even were it unconstitutional, that would not support this motion to dismiss, but would go to modify the form of the final judgment only.
    III. The rule for estimating the damages was correctly laid down, or was at least such as the defendant could not complain of. (Sess. Acts, 1851, p. 485, § 9 ; Sess. Acts, 1853, p. 130, § 16; Newby v. Platte County, ante, p. 258; 14 Penn. 245 ; 4 Whart. 47; 8 Penn. 445 ; 4 Cush. 291.)
   BichardsoN, Judge,

delivered the opinion of the court.

The objections of the appellant to the proceedings of the circuit court, and relied on here for the reversal of the judgment, are, 1st. That the defendant was denied the right of trying the issue made on the statement in the petition, that the road passed hills and valleys, and for that reason the width of one hundred and fifty feet was necessary ; 2d. That the commissioners to assess the damages ought to have been appointed pursuant to the provisions of the general railroad law of 1853 ; 3d. That an improper rule was adopted by the commissioners in assessing the damages. The other points are embraced in the second objection.

This company was incorporated March 3d, 1851, (Sess. Acts, 1851, p. 483,) and the 7th, 8th, 9th and 10th sections of their charter prescribe their powers and duties and the mode of procedure for acquiring the right of way. The seventh section gave them the right to hold a strip of land the whole length of the road not exceeding one hundred feet in width, “ provided that in passing hills or valleys the said company are authorized to extend said width in order to effect said object.” The reason of this provision is manifest, for greater width is necessary where the -unevenness of the surface requires deep excavations or heavy embankments; and as the land condemned for the right of way is of no value to the company but for the bed of their road, this power is not liable to be abused, and is restrained by the consideration that the assessment of damages is influenced by the width of the land taken. The petition averred that the road through the defendant’s land passed hills and valleys, and that the width of one hundred'and fifty feet was necessary for the construction of the road. The statement was no doubt made on the report of the engineer, whose judgment in that matter controlled the plaintiff, and the allegation was not tra-versable by the defendant.

The 9th section provides, that if the owner of land over which the road passes refuses to relinquish the right of way, upon proper petition to the judge of the circuit court, it shall be his duty to appoint three disinterested citizens of the county to view the land and assess the damages. All the details of the proceeding are furnished, and no further legislation was necessary for this company on that subject. The 14th and 15th sections of the act entitled “ An act to authorize the formation of railroad associations and to regulate the same,” approved February 24th, 1853, (Sess. Acts, 1853, p. 121,) prescribe the mode to be pursued for condemning land for railroads, which differs in many respects from the proceeding directed in the plaintiff’s charter. They require the petition to contain elements and averments essentially variant from the requirements of this charter, and direct the court or judge to appoint five commissioners for the assessment of damages, four of whom are to be selected from a list of twelve names to be submitted by the parties. The 56th section declares that all railroad corporations then existing, or which might thereafter be chartered, should respectively possess the powers contained in that act, and should be subject to all the duties, liabilities and provisions, not inconsistent with their charters, contained in certain enumerated sections, including sections fourteen and fifteen. The mode of assessing damages in the plaintiff’s charter is inconsistent with the 14th and 15th sections of the general railroad law ; and, by the express declaration of the act, it does not operate to modify or repeal provisions in the charters of corporations inconsistent with it. It does not appear that this company has adopted the provisions of the act of 1853, and this proceeding was therefore properly conducted under the act of incorporation.

It is not necessary to decide whether the rule adopted by the commissioners for the assessment of damages was correct, for it is sufficient to say that it was more favorable to the defendant than the rule laid down by this court in Newby v. Platte County, (ante, p. 258,) and he can not complain. The judgment will be affirmed.


text:
    Pacific Railroad, Defendant in Error, v. Chrystal, Plaintiff in Error.

    1. The benefits that may be charged, under section 9 of the act incorporating the Pacific Railroad (Sess. Acts, 1849, p. 219), against land owners adjacent to said road — portions of whose lands may he taken and appropriated to public use — and deducted from the value of the land taken, in estimating the “just compensation” to which such land owners are entitled, are the direct and peculiar benefits resulting to them in particular, and not the general benefits or advantages they, in common with other land owners in the vicinity, derive from the use to which the portions taken are appropriated.
    2. The “ value” — in the sense of the ninth section of said act — of the land taken is its value independent of the location of the railroad; and the “ disadvantages,” that may be taken into consideration, are the injuries resulting to the land owner, in respect of the residue of the tract unappropriated, from the particular mode in which part thereof is taken, or the use to which it is applied.

      Ei'ror to Franklin Circuit Cowrt.

    Delafield, for plaintiff in error.
    I. The right of eminent domain can not be granted to a private person or corporation for private uses. (2 Kent, Com. 889, note and cases cited; 2 Dali. 804.) A railroad company whose road is nowhere by the law declared to be a public road is nothing more than a private person in the law. (Harding v. Goodlett, 3 Yerg. 41; Gardner v. Trustees of Newburg, 2 Johns. Ch. 161.) Nowhere do we find in the acts of incorporation, whether original or amended, any declaration of law that the Pacific Railroad is a public road for public uses. It clearly does not come under the general road laws of the state. It is only a private corporation.
    II. By the constitution of the United States no freeman can “ be deprived of life, liberty or property without due process of law.” This means, by the law of the land and by a jury of twelve men. (2 Kent, Com. 13 ; 2 Coke, Inst. 50 ; 19 Wend. 659 ; 4 Dev. 15 ; 10 Yerg. 71; 2 Yerg. 554.)
    III. Private property can not be taken for public use without just compensation. Prospective benefit is no compensation. No compensation whatever was adjudged to defendant.

      S. T. Sf A. D. Glover, for defendant in error.
    I. No exceptions were saved to the decisions of the court below. The only exception taken was to the refusal of the court to appoint new commissioners after the report had been confirmed.
    II. A writ of error will not lie in this case. (Hannibal & St. Joseph R. R. Co. v. Morton, 20 Mo. 70.)
    III. The constitutional guaranty that secures the right of trial by jury is not violated by the provision in the charter for the appointment of commissioners to assess the damages. (Beckman v. Saratoga, R. R. Co. 3 Paige, 45; 19 Yerm. 478 ; 5 Yerm. 186 ; 11 N. H. 19.)
    IY. Railroads are public improvements from which benefits result to the public; and the right of eminent domain may be exercised either directly by the agency of the government or through the medium of corporate bodies. (3 Paige, 45 ; Bloodgood v. Mohawk R. R. 14 Wend. 51.)
    Y. The provision of the charter authorizing the commissioners to consider the advantages arising to the owner of the land sought to be condemned is constitutional. (Meacham y. Fitchburgh R. R. Co. 4 Cush. 291; 8 Cush. 600; 5 Blackf. 384 ; 8 Wend. 100 ; 17 Wend. 669; People v. Mayor of Brooklyn, 4 Comst. 419 ; 6 Barb. 209 ; 16 Barb. 69; 17 Wend. 669.)

         Richakbson, Judge, having been of counsel, did not sit at the hearing of this cause.

   Napton, Judge,

delivered the opinion of the court.

Most of the points made and discussed-in this case have been decided by the court in other cases during this term, and it will not therefore be necessary that they be particularly noticed.

The order of the circuit court to the commissioners appointed to assess the damages to Chrystal’s land was, that said commissioners, in forming their estimate, make due allowance or deduction for any advantages or benefits which the said William Chrystal will derive from the said Pacific Railroad, but not allowing him the benefit of any rise in land in consequence of the survey.”

Although no exception was taken to this order, or the instructions contained therein, at the time it was made, yet, inasmuch as the order may be considered as the chart by which the commissioners were guided, the motion of the defendant to set aside the assessment or report and appoint new commisioners may be regarded somewhat in the light of a motion in arrest, and as sufficient to authorize this court to review the action of the circuit court.

In the case of Newby v. Platte County, (ante, p. 258,) this court held that “ the benefits to be charged the land owners whose lands are taken for a railroad, and deducted from the compensation to be allowed for the value of the land taken and the injury resulting to other adjoining land, must be the direct and peculiar benefits which result to them in particular, and not the general benefits they derive in common with other land owners in the vicinity from the building of the road.”

The value of the land taken means its actual value independent of the location of the road. The disadvantages spoken of by the act are the injuries arising from the taking of only a part of a tract, which, from a -variety of causes, may more or less impair the value of the part left, or entirely destroy its value.

It is manifest that the order of the court to the commissioners did not conform to these principles. The report should therefore have been set aside and a second assessment made with proper instructions.

Judge Scott concurring,

the judgment is reversed and the cause remanded;

Judge Richardson not sitting.


author: Richardson, Judge,

text:
    Hannibal, Ralls County & Paris Plank Road Co., Defendant in Error, v. Menefee, Plaintiff in Error.
    1. The fact that the directors of an incorporated company may have violated the provisions of the charter of the company -will not release a subscriber to the stock of the company from his liability to pay calls made upon his subscription of stock.

      Error to Ralls Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Lipscomb and Anderson, for plaintiff in error.
    I. The answer of Menefee was a good defence, and should not have been struck out.
    Richmond, for defendant in error.
   Richardson, Judge,

delivered the opinion of the court.

This corporation was organized under the act to authorize the formation of associations to construct plank roads and macadamized roads,” approved February 27, 1851. (Sess. Acts, 1851, p. 259.) The original articles of association were signed by the defendant, who subscribed for eight shares to the stock of the company, and, after a part of the road had been made, he was required by the directors to pay instal-ments on bis stock, which he refused to do ; and this suit was brought to recover the calls that were due. The only defence set up in the answer is, that the directors had violated the charter of the company, which required the construction of a plank road, by causing three miles of the road to be made of gravel; and for that unlawful act of the directors the defendant insisted, as a matter of law, that he was discharged from his obligation to pay his subscription. The answer on motion was stricken out and judgment rendered for the plaintiff. The only question in this case for our consideration is, whether a stockholder is discharged from the payment of his subscription because the directors of a company may violate its charter. The principle involved here is clear of the question, how far a stockholder may be affected in his obligations or relations to the company by a material change in its charter made without his consent; for it is not pretended that any alteration was made in the charter by any authority competent to change it, but only that the directors abused their trust.

The directors are merely agents of the corporation. They do not own the stock subscribed, and can not sue for it; and therefore a defence that might be made to a suit, brought in their names and for their personal benefit, would not be responsive to an action in the name of the corporation. This suit is in the corporate name of the company that represents all the stockholders, each one of whom is interested in the proper administration of the assets of the company ; and the suit is practically for their benefit. The real question is, whether a stockholder is discharged from the payment of his subscription and from his duty to bear the part he has assumed of a common burden with other stockholders, because his and their agents in some particular may transcend their authority.

If the- directors contract a debt beyond the scope of their power, which they pay, and then call upon a stockholder to contribute his part to reimburse them — if it was simply a controversy between the principal and his agents — contribution would be denied. But the directors have no power to change the charter of a company, and if they violate it, their unlawful act will not release a stockholder from the payment of his stock ; for if it releases one it would release all; and if all were discharged, the corporation would be virtually dissolved, and its just creditors would receive nothing, though their debts were contracted in good faith and for the immediate benefit of the company. The defendant only complains that three miles of the road were made of gravel, and we must suppose that the remainder of it was constructed of plank and strictly in conformity to the articles of association; but if the defence is valid, it would be equally so if only the third of a mile was made of gravel; and in that case what would become of the obligation of the company to pay for that part properly made ? The laborers and others who assisted to make it would look, not to the directors individually for payment, but to the company, and the company would necessarily rely, for the means to pay with, on the stock subscribed ; but this would be a poor dependence if every stockholder could refuse to pay because his agents had in some other particular abused their trust.

The recognition of the principle asserted in the answer would tolerate repudiation by a corporation of its honest debts in every case where it relies for means on the collection of its stock subscriptions, and the stockholders could discover that the directors in any manner had violated their charter. If it is a good defence that the directors violated the charter, any other unlawful act would justify a like refusal to pay; and creditors of a corporation, who advance money or perform labor on the faith of the capital stock subscribed, would be the sufferers by tlio improper conduct of directors, rather than those who clothe them with authority and authorize them to contract for the corporation.

The motion to strike out the answer was properly sustained, and the judgment will be affirmed with the concurrence of the other judges.


text:
    Lindell, Plaintiff in Error, v. Hannibal & St. Joseph Railroad Co., Defendant in Error.
    1. The Hannibal and St. Joseph Bailroad Company entered — under the second section of the " act to amend an act entitled ‘ an act to incorporate the Hannibal and St. Joseph Bailroad Company/” approved February 23, 1853, (Sess. Acts, 1853, p. 321,) — upon the land of plaintiff and cut timber for the construction of their railroad; held, that the plaintiff vas not entitled to treble damages under the “ act to prevent certain trespasses.” (B. C. 1815, p. 1068.)

      Error to Marion Circuit Court.
    This was an action against the Hannibal and St. Joseph Bailroad Company to recover the value of timber cut and carried away from the land of the plaintiff, Peter Lindell. The jury found a verdict for the plaintiff, and found the value of the timber taken by the defendant from- the land of the plaintiff to be $1554.35. The plaintiff moved the court for judgment for treble the value of the timber as found by the jury. The court overruled the motion and gave judgment for single damages only.

      Lipscomb and E. Bates, for plaintiff in error.
    I. The declaration is sufficient under the first section of the “ Act to prevent certain trespasses.” (B. C. 1845, p. 1071; Ewing v. Seaton, 17 Mo. 465.) The company in their pleading do not claim to own the land or the timber taken therefrom ; nor do they pretend to have had a probable cause to believe the timber taken was their own. They claim only “ that they had probable cause to believe they had a right by law to enter upon the land and remove the timber.” Between a supposed right to take another’s property and the ownership there is a vast difference. The fourth section of the above cited act concerning trespasses has reference to ownership and not to a supposed right to take. Nothing will extenuate the trespass but the belief that the land or the timber taken therefrom was defendant’s own. (Emerson v. Beavaus, 12 Mo. 511.)

      II. The second section of the act of February 23,1853, (Sess. Acts, 1853, p. 321,) is unconstitutional and void. (Const, of Mo., art. 13, § 7; Bloodgood v. M. & H. R. R. Co. 18 Wend.-.)

      Anderson, for defendant in error.
   Napton, Judge,

delivered the opinion of tbe court.

In this case the court refused to treble the damages found by the jury, for the following reason : “ It appears from the record evidence that the entry was made under the second section of an act entitled 4 An act to amend an act entitled ‘ An áct to incorporate the Hannibal and St. Joseph Railroad Company,’ ’ approved February 23, 1853; it further appears from the evidence that the company, after they commenced cutting the timber, applied to H. W. Hollingsworth, a justice of the peace for Marion county, who upon said application appointed three disinterested freeholders of the county to assess plaintiff’s damages, and that said householders, after having been sworn by said justice, did upon their own view — made after the timber had been cut and a portion of it removed — assess the plaintiff’s damages at eleven hundred dollars, and made out their report in writing, which was produced on the trial; and the court is of opinion that, under the above state of facts, the defendant had probable cause to believe that the timber taken was its own, and that under the fourth section of the act entitled; ‘ An act to prevent certain trespasses,’ approved February 10, 1846, the plaintiff is entitled to single damages only.”

This construction of the fourth section of the act of 1845 concerning trespasses is, we think, correct. To hold otherwise would be to attribute to the legislature the gross inconsistency of declaring on one page of the statute book that this company could go upon the plaintiff’s land and take the timber wanted for the construction of their road, and on the next page declaring that this authority, thus solemnly given, should not even furnish the company with a decent excuse for doing the very thing the legislature have permitted. If this is not a case in which there was probable cause to believe that the defendant had a right to make use of the timber of the plaintiff, it is not easy to conjecture what cases would come within the meaning of the fourth section of the act concerning trespasses referred to. It will always turn out, whenever an action of trespass is sustained, that the defendant was mistaken in thinking, if he did so think, that the land or the timber was his own ; and if his opinion be held immaterial in fixing the amount of damages, it must follow that in all cases they must be trebled. And if an opinion, based upon a plain provision in a legislative act clearly giving him the power to commit the trespass, is not one that furnishes the probable' cause specified in the section, it is not easy to conceive of any other grounds of belief which would have more plausibility. But this is the very point upon which, as we understand the act of 1845, the legislature have placed the trespasser’s exemption from treble damages. Ignorance of the fact or the law is the matter which relieves the defendant from the penalty inflicted upon wilful and wanton trespassers.

It is said that this second section of the charter of this company is unconstitutional. This may be so ; but the question is, whether the company honestly believed they had a right to use the plaintiff’s timber, and were acting under the supposed authority conferred upon them.by their charter. It matters not that they were mistaken in so believing and acting.' Their ignorance of constitutional law will not excuse them from paying the actual damage occasioned by their trespass; but it ought to relieve them from the penalty inflicted upon those who knowingly commit such trespasses. We concede that under the circumstances it could not be said that the company had any reason to suppose that literally the land or the timber was theirs; but the spirit of the law is to punish wilful trespasses, and not such as are committed upon a false opinion.

The case of Emerson v. Beavaus, 12 Mo. 511, does not conflict with this view of the statute. The defendant in that case sought to relieve himself from the increased damages by proof that he supposed the land upon which the trespass was committed to belong to the United States; but he did not pretend that he had any more authority to trespass on the United States land than upon that of any private citizen, and of course the plea was rejected. The defendant was mistaken as to the party whose right he was invading, but he was fully aware he was committing an unwarranted trespass.

The other judges concurring, the judgment is affirmed.


text:
    The State, Defendant in Error, v. Dwire et al., Plaintiffs in Error.
    1. "Where the facts in evidence will warrant it, the court should instruct the jury that they may reject the whole of the testimony of a witness who has wilfully sworn falsely in regard to any material-fact.

      Error to St. Louis Criminal Court.

      L. M. Shreve, for plaintiffs in error.

      C. G. Mauro, (circuit attorney,) for the State.
   Richardson, Judge,

delivered the opinion of the court.

The defendants were indicted for a riot that occurred at a fire in the city of St. Louis. One of the witnesses called by the State testified that he saw three of the defendants present participating in the riot, and on his cross-examination, in answer to a question put by defendants, he denied that he had stated to two persons, whose names were given, that he had not seen Dwire at the fire — one of the defendants whom he had implicated. The defendants afterwards introduced the persons referred to in the question, who contradicted the witness, and testified that, at the time and place indicated in the question, he told them that he had not seen Dwire on the night of the fire.

At the close of the evidence the court refused an instruction, asked by the defendants, to the effect that if the jury believe from the evidence that the witness' wilfully testified falsely to any material fact in the trial, they were authorized to discard the whole of his testimony.

The instruction did not assert a mere abstraction, but was warranted by the state of the evidence in the case; and being drawn in the words of an instruction approved by this court, in Gillett v. Wimer, 23 Mo. 77, it ought to have been given. The facts in evidence that will warrant this instruction are not necessarily such as even to create a suspicion in the mind of the judge that the witness has knowingly sworn falsely to any material matter; for it may often happen that his evidence will be received with perfect confidence in its truth, while that of his assailants will be disregarded. But when a witness is contradicted in a material fact, it is for the jury to pass on his credibility, and the party against whom the evidence is given is entitled to the declaration of law from the court contained in the refused instruction. Other witnesses implicated the defendants, but this court can not tell how far the verdict was influenced by the testimony of this witness; and though the jury may believe that he had not been successfully contradicted, the judgment must be reversed because the defendants were denied the benefit of an established rule of evidence, to be declared in the form of an instruction, and which they were entitled to for whatever it was practically worth.

In my opinion, if the jury believe that a witness has wil-fully testified falsely in respect to any material fact, it is their duty to disregard the whole of his testimony, and they should be so instructed by the court; but the other members of this court think that the jury ought only to bé told that they may do what I think they are bound to do; and whilst they concur in the reversal of this judgment because a case was presented for the application of the principle contained in the instruction, they think the word “ authorized” is equivocal, and should not be used in this connection, because it may imply to the jury that they are required to do only what they are at liberty to do.

The judgment will be reversed and the cause remanded.


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    The State, on the Relation of Washington County, v. Stone, Judge of Ninth Judicial Circuit.
    1. A writ of quo warranto is a writ of right, and issues- as a matter of course upon demand of the proper officer.

      Frissell, for Washington County.
   Richardson, Judge,

delivered the opinion of the court.

Washington County has filed a motion for a writ of quo warranto against Judge Stone, alleging that he has, as judge of the ninth judicial circuit, approved the official bond of John Edwards as clerk of the circuit court of Iron county. The object of the motion is to initiate a proceeding to test the constitutionality of the act of the general assembly, approved February 17,1857, organizing Iron county.

It was decided by this court, in the case of The State v. St. Louis Perpetual Ins. Co., 8 Mo. 330, that the writ of quo warranto was a writ of right and issued as a matter of course on demand of the proper officer, and the motion will therefore be overruled. The other judges concur.


author: Richabdson, Judge,

text:
    Smith et al., Appellants, v. Phillips, Respondent.
    1. A party relying upon a sheriff's deed to show title in himself, must produce the deed itself in evidence; unless its absence be accounted for, secondary evidence of its contents can not be admitted.
    2. Hearsay evidence is inadmissible.

      Appeal from Perry Circuit Court.

    Tin's was an action in the nature of an action of ejectment. The plaintiffs assert title to the tract of land in dispute as heirs of one Henry Clark. The defendant in his answer denies plaintiffs’ title, asserts - title in himself, and sets up the statute of limitations.
    At the trial the defendant, to show title in himself, introduced in evidence, against the objection of plaintiffs, a record of acknowledgment by the sheriff of Perry county of a deed from himself as sheriff to one Gustavus A. Bird. This acknowledgment purported to be an acknowledgment of a deed executed by said sheriff, conveying to said Bird “ a tract of three hundred arpens of land, more or less, situate, lying and being in Bois Brule township, in the county of Perry, which tract of land was sold by virtue of a decree or order of sale issued from this court in favor of Gustavus A. Bird, Ezekiel B. Herrrick, executors, and Penelope Bird, executrix of Amos Bird, deceased, against Henry Clark, and was sold on the second day of the present term of this court, and whilst the court was in session, conformably to notice, and was purchased by said Gustavus A. Bird, he being the highest and best bidder, for the sum of eighty-five dollars.” One Sanders also testified, against the objection of plaintiffs, that he had heard from one Logan, under whom defendant claimed title, and others, that Bird sold said tract to Logan.
    T. C. Johnson and Gale, for appellants.
    I. The defendant did not show title out of plaintiff. The sheriff’s deed, if any was in existence, should have been produced. The acknowledgment was inadmissible in evidence. The description therein was also defective. Nor has the defendant shown title in himself through Logan. . The declarations of Logan were inadmissible in evidence.
    II. The defendant did not make out a defence under the statute of limitations. (Blair v. Smith, 16 Mo. 273 ; 6 Serg. & Baw. 25; Sarber v. Willing, 10 Watts, 141; Small v. Proctor, 15 Mass. 495; Boston Mill Corp. v. Bullfinch, 6 Mass. 229 ; 10 Mass. 93 ; 3 Mete. 125; 6 Pick. 172 ; 8 Pick. 292 ; 10 N. H. 397; 18 Term. 294; 9 Watts, 192 ; 6 Barr, 271.)

      Noell and Frissell, for appellants.
    I. Tbe only question is as to tbe effect of tbe statute of limitations upon tbe state of facts proven. There is a clear bar. (13 Mo. 335 ; 16 Mo. 273 ; 19 Mo, 660 ; 20 Mo. 186.) The proof of the acknowledgment of the sheriff’s deed to Bird, with a continuous subsequent possession under Bird’s claim, is sufficient to raise the presumption at this date that such a deed did exist, if it is not positive proof thereof.
    II. There was no error in permitting Sanders to state that he had heard Logan say he had bought of Bird. It was competent evidence while Logan was in possession to show how he claimed, and to show that his claim was not confined to the deed to himself from Henry Clark. Logan’s sale of the whole tract to Sanders was an open assertion of dominion over it, and also shows the extent of his possession.
   Richabdson, Judge,

delivered the opinion of the court.

The best evidence of which the case is susceptible must be produced, and evidence is never primary when it carries ou its face the indication that better exists. The law requires a sheriff, when he sells real estate under execution, to execute, acknowledge and deliver a deed to the purchaser, on complying with the terms of sale ; and whenever title is asserted under a sheriff’s sale, the production of a deed is required or' its absence accounted for as a preliminary to the introduction, of secondary evidence of its contents. The copy from the! record of the sheriff’s acknowledgment was read by the defendant, to prove that a deed had been made to Bird ; but it. indicated on its face the existence of better proof of the fact, sought to be established by it; and the most that could be claimed for it was, that it was secondary evidence, which was inadmissible in any aspect of the case, without proof of the previous existence and loss of the deed.

Whether there are degrees in the various kinds of secondary evidence, it is not important to discuss, nor to decide whether, admitting the previous existence of a deed from the sheriff and its loss, the record entry read by the defendant was the best evidence of its contents ; for no foundation was laid for the introduction of secondary evidence of any kind or in any degree. The testimony of the witness that he had heard that Logan had purchased the land in controversy from Bird was also improperly admitted, and for these reasons the judgment, with the concurrence of the other judges, will be reversed and the cause remanded.


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    The State, Defendant in Error, v. Bankhead, Plaintiff in Error.
    1. An indictment, founded on section 28 of article 8 of the act concerning crimes and punishments (B.. C. 1845, p. 404), charging that the defendant, on, &e., at, &c., “ did disturb a congregation of people then and there met for religious -worship, by then and there making an assault upon one H., so near to the place of worship of said congregation of people as to disturb the order of the meeting, contrary,” &c., is insufficient.

      Error to Pike Circuit Court.

      Broadhead, for plaintiff in error.

      C. Q. Mauro, (circuit attorney,) for the State.
   Richardson, Judge,

delivered the opinion of the court.

The defendant was indicted under the 28th section of art. 8 of the act concerning crimes and punishments. (R. C. 1845. p. 404.) The indictment contained four counts, but the jury found the defendant guilty only under the third, which is in these words: “ And the jurors aforesaid, on their oaths aforesaid, further present, that the said Archer Bank-head, on the day and year aforesaid, and at the said county of Pike, did disturb a congregation of people then and there met for religious worship, by then and there making an assault upon one John E. Hedges, jr., so near to the place of worship of said congregation of people as to disturb the order of the meeting, contrary,” &c.

The court overruled the motion in arrest, and the only question presented in the record is the sufficiency of the said count. The section on which the indictment was framed describes two distinct classes of offences, and may be subdivided thus : First, “ Every person who shall wilfully, maliciously or contemptuously disquiet or disturb any congregation or assembly of people met for religious worship, by making a noise, or by rude or indecent behavior, or profane discourse, within their place of worship, or so near to the same as to disturb the order or solemnity of the meeting,” &c.; 2dly, “ or menace, threaten or assault any person there being, he shall be deemed guilty of a misdemeanor,” &c. The count is not good under the first head, for it omits to charge any offence in the terms of the law. It does not charge that the defendant wilfully, maliciously or contemptuously did any thing; and, to create an offence, this constituent of motive is required, besides the averment that the assembly met for religious worship was disturbed, and the description of the particular means used for that purpose. It is insufficient under the second head, for it attempts to charge under the first for disturbing a religious congregation, and only describes the assault as the means employed. In one case, the offence is for wilfully, maliciously or contemptuously disturbing an assembly of people met for religious worship, by any of the acts designated; and in the other, the offence is for assaulting a person in such assembly. With the concurrence of the other judges, the judgment is reversed.