
    The Atlantic and Great Western Railroad Company v. Josiah Robbins et al.
    3. The owner of land which has been unlawfully and wrongfully taken and appropriated to its use by a corporation authorized by law to appropriate land, can not maintain an action for the value of the land so taken and appropriated, and also damages accruing by reason of such taking and appropriation, if the circumstances are such that he may recover the land itself.
    
      2. In such case the owner may recover compensation and damages, by spe. cial proceedings, under section 21 (69 Ohio L. 88, 95; Rev. Stat. 6448-6450), or the land itself, as in other cases of unlawful entry.
    Error to the District Court of Trumbull county.
    September 20, 1873, Josiah Robbins commenced an action against the plaintiff in error, a railroad corporation, in possession of and operating the Cleveland and Mahoning Railroad, to recover compensation for the value of land unlawfully appropriated, and damages for the incidental injury to the residue of the parcel.
    He alleged ownership in fee of a long narrow strip of land, extending from the north bank of the Mahoning river northward to the south line of the Cleveland and Ma-honing railroad track and depot grounds, in the village of Niles, Trumbull county, and that the plaintiff in error unlawfully entered upon said strip of land adjacent to its-track and depot grounds, and between that and Walnut street in said village, which crossed said strip between said track and the river, and has converted the same to its own-use unlawfully, by laying down about one thousand feet of track, and using the same as an appurtenance or adjunct to its road and depot grounds.
    The prayer is for compensation for the ground so used, and damages to the residue of the strip not taken; or‘if that relief can not be granted, then for a recovery of the-land so used, and for damages for its detention.
    November 17, 1873, the defendant answered, denying plaintiff’s title and right to possession, and setting up title and right to the possession by conveyance from plaintiff through several parties to itself.
    At the June term, 1874, the death of Josiah Robbins was-suggested, and his administrators were made parties-plaintiff.
    At the November term, 1874, upon a trial by jury, a verdict and judgment was had in favor of the administrators for $3,059.70.
    At the same term this judgment was, upon defendant’s motion, set aside, and leave granted the plaintiffs to amend •the petition and make new parties.
    January 16, 1874, an amended and supplemental petition was filed in the name of the administrators and the heirs •of said Josiah Robbins. The averments of the original petition are affirmed, and it is further stated that the de fendant is an insolvent railroad corporation, and that .although that part of said strip of land north of "Walnut street has been made an adjunct of the railroad, yet it can be separated from defendant’s track and depot grounds without injury to its property ; also, that while defendant originally entered by permission to occupy for a temporary purpose, and with the understanding that nothing should be changed, yet said conversion, by laying tracks, and use, was fraudulent and with the known dissent of the said Robbins.
    The prayer was also amended so as to ask for a recovery ■of the full value of the land, with interest thereon and damages for the fraudulent taking, and that the same be de■dared a lien on the premises; and if they can not so charge the land, then that they recover the land itself and other proper relief:
    No answer was filed to this amended petition.
    February 3, 1874, and, as plaintiff in error claims, before rule day for answer expired, and in its absence, a trial was had, resulting in a verdict for plaintiffs for $3,438.42 ■damages.
    February 8, and before judgment, defendant moved for a now trial, which motion was heard March 8 and overruled, to which exception was taken.
    On the same day, on application of the plaintiffs, and without, other evidence than that heard by the jury, the court found specially and entered upon its journal as follows :
    “ And as to the further motion for relief herein claimed, the court, at the request of plaintiff’s counsel, find the further facts to be that the lands in question are a parcel of land truly described in the petition in this case; that the same are not connected with or adjacent to the other lands nor to or with the railroad of defendants, nor its appurtenances, except at the end of the same where it connects with the depot grounds of defendant, and that the same is not necessary to the full use of the residue of said railroad and' its appurtenances, nor except as one additional sidetrack thereof, and that the same was converted and appropriated by defendant as an appurtenance of its railroad while the same was in defendant’s temporary possession for only a temporary purpose hy agreement with said Josiah Robbins, now deceased, and without his knowledge; the-above facts were found by the court from evidence given on the trial before the jury, and no evidence except that given before the jury was given to the court, and the plaintiff'' demanding judgment on said verdict and also.the further-relief demanded in said petition, the court are of opinion that, as matter of law, the plaintiffs are entitled to a judgment for the recovery of the sum found by the verdict of' the jury as aforesaid; but the court hold as a matter of law that upon said facts the plaiutiffs are not eutitled to the-further relief sought in the petition, and as to the said further matters said petition is dismissed, to which plaintiffs except, and then it i.s hereupon considered and adjudged by the court that the plaintiffs recover of the defendant the said sum of $3,438.42 and their costs taxed.”
    To reverse this judgment, denying the equitable relief,, the plaintiffs below prosecuted error to the district court, and at the April term, 1876, obtained a reversal of that part of the judgment, and also a judgment, charging the-amount recovered, upon the land, with an order of sale upon default of payment by a day named.
    To reverse this judgment of the district court is the-object of the present petition in error.
    Some of the errors assigned go to the validity of the verdict and judgment at law, in the common pleas. Some to the validity of the judgment of the district court.
    Among the latter, it is alleged, that the district court erred in holding that said judgment at law,-in the common pleas, was a valid judgment on which to found its judgment for equitable relief, and that the court of common, pibas erred in rendering the money judgment for the plaintiff' below.
    The defendants in error, after the usual joinder in error, plead specially in bar, that after the rendition of said judgment at law, in the common pleas, the present plaintiff prosecuted error to the district court to reverse said judgment, and that such proceedings were had thereon that at the April term, 1876, said judgment was affirmed, which affirmance is still in full force. To this there is no' reply.
    It thus appears that both parties prosecuted proceedings-in error, independently of each other, to reverse, in part, the judgment of the common pleas. The plaintiffs below to reverse so much as denied them equitable relief, and the defendant below to reverse the judgment at law. In the former case the judgment, denying equitable relief, was reversed, and such relief granted; and, at the same term of the court, in the latter case, the judgment at'law was affirmed.
    Additional facts are found in the record and relied on, but in the opinion of the court it is unnecessary to state them.
    
      S. Burke, for plaintiff in error:
    By this proceeding, the plaintiffs sought to recover compensation for the value of the real estate actually appropriated by the railroad company for railroad purposes, and damages in consequence of the appropriation thereof, sustained by his other property in the vicinity. Eor such an alleged wrong such an action will not lie. See Little Miami Railroad Co. v. Whitacre et. al., 8 Ohio St. 590.
    By the act of the legislature of 1872, (69 Ohio Laws, 88) a remedy is given to the owner by proceedings under that statute in the probate court; and, inasmuch as the legislature has provided specially for the assessment of damages in such cases, the remedy thus prescribed must be followed. See Pierce on American Railroad Law, 224; 18 Ohio, 232.
    
      George M. Tuttle, for defendant in error:
    The first objection made in the argument is, that the action did not lie, because a special remedy for such an injury had been provided by the act of 1872.
    The statute referred to did not confer the right, nor first .give a remedy. No such statute takes away the old remedy. Comyn, Dig. Action upon Statute, C.; Aling v. Harris, 5 Johns. 175.
    Besides the' statute referred to expressly reserves the old remedy. 69 O. L. 95, § 21.
   Johnson, J.

¥e pass, without special notice, several novel phases of this case — such as the joinder of the personal and legal representatives of Josiah Robbins in this action ; the prayer for full compensation for the land appropriated, and damages for its fraudulent conversion, joined with a prayer for equitable relief; the special finding of facts touching the equitable relief, not upon evidence submitted to the court, but upon that addressed to the jury, a month before, upon the issue as to damages ; and the prosecution of two independent proceedings in error at the same term of the district court.

Upon these questions no opinion is expressed.

It appears from the record, that the administrators, and the heirs, as plaintiffs, have recovered a judgment in money, as compensation for land adjoining defendant’s railroad track and depot grounds, because it has unlawfully and fraudulently converted the same to its own use, contrary to the wishes of said Robbins, while in possession by his consent for a temporary purpose only.

It further appears, that the parcel of land so appropriated may be separated from the railroad track and grounds, without injury to the railroad. It does not appear that either the plaintiffs, or said Josiah Robbins are, in any way, «stopped or barred of their rights to recover the land itselfj as in other cases of unlawful entry upon lands.

The question presented by these facts, is, was there a valid judgment for money, upon which to base the equitable relief afforded by the district court? That court assumed there was, and made that judgment a charge upon, the land.

The whole record was before that court, and if, upon its face, there was no such judgment upon which to found the prayer for equitable relief, then that court erred, in making such judgment a charge upon the land. Potter v. Meyers, 31 Ohio St. 103-106.

The validity of the judgment at law, was an essential prerequisite to the decree of the district court, making it a ■charge upon the land, and granting an order of sale to pay the same.

Eor this reason the matters set up in the special answer ■of defendant in error are not a bar to this inquiry. Although, in form, there were two independent proceedings in error, there was, in fact, but one case and one record. The special answer, which it is admitted states the facts, shows that both parties were, at the same time, before the district court, upon errors assigned by each to the same record. In this court it is specifically assigned as error, that the district court erred in affirming the judgment of -the common pleas. This brings the whole case before us as fully as if there had been but one petition in error in the .district court, and cross-errors assigned.

Recurring, then, to the question stated, let us inquire into the nature of this case.

It differs materially from the case of D., X. & B. R. R. Co. et. al. v. Lewton, 20 Ohio St. 401, relied on by the defendant in error.

That was the case of an entry and appropriation of land, by the corporation under a contract, to pay a sum of money at .a future day, and to construct crossings and cattle-guards on vendor’s land; and it was held that he was entitled to an equitable lien on the land sold, as well for the damages for not constructing the road as agreed, as for the unpaid purchase-money.

Neither is it governed by the principle controlling in Goodin v. The-Cin. & W. C. Co., 18 Ohio St. 169, where it was held that one who stands by, without objection, and sees a .public railroad constructed over his «land, can not, after it is completed, or a large expenditure made on the faith of his apparent acquiescence, reclaim the laud, or enjoin its use by the railroad company.

In such a case there only remains to the owner a right of compensation. This rests upon the ground of estoppel in favor of stockholders and creditors. As he did not speak when he should, he will, not be allowed to speak when he would. This case rests upon its own peculiar facts, and is not to be extended, by other cases, when an estoppel is not clearly established.

The case at bar differs from both these cases. This is the case of an unlawful and unauthorized use, and a fraudulent appropriation, against the objection of the owner, and is not under a contract of sale, or by acquiescence or other acts, upon the faith of which expenditures have been made. In short, it is an action for the trover and conversion of real estate.

It must also be kept in mind that, although the heirs of Robbins are united as plaintiffs with the administrators, they are only nominally such, and there is nothing in the record that would estop them from bringing an action of ejectment to recover the land itself, even though the judgment be paid to the administrators.

That Robbins himself was not so estopped is clear, as he took pains to show in his petition, by asking for a recovery of the land in the event he was not entitled to compensation or damages. His heirs have done nothing since to estop them. Neither he, nor they, offer to convey or surrender the title, upon being paid, and neither has done any act, so far as the record shows, that would estop him, or them, from asserting the title to this land.

The 21st section of the act of 1872 (69 O. L. 95), provides a statutory remedy, unknown to the common law, for cases like this. By it, the owner of land, taken and used by a corporation, authorized to condemn land without being appropriated and paid for, and without any agreement in writing with such owner, or any legal or equitable right thereto, may, by special proceedings, have the value of such land, ascertained by a jury, and a judgment for the purchase-money, to be collected by execution.

By this proceeding the judgment js not made a lien or charge upon the land. If not collectible on execution, and not paid in sixty days, the court may enjoin the use of the land until it is paid.

When paid, or satisfied, the title passes, by operation of the statute, section 10, to the corporation.

Until paid, the title and estate remain in the heirs. This is a special remedy in cases of unauthorized entry and appropriation, but it is not exclusive of that at common law, as in all cases of unlawful entry and possession of lands.

The present action was originally one at law. By amendment, equitable relief was also demanded. Such an action, either at law or in equity, in case of an unlawful entry, or wrongful detention of lands, is unknown at common law or in equity. This judgment does not bar an action by the heirs. Even its payment does not operate to transfer the title, as in the case under proceedings authorized by the above statutes. Such payment to the administrators would not estop these heirs. The title is still in them.

Counsel cite part of section 1219, Story Equity Jurisprudence : “ That a person who has gotten the estate of another ought not in conscience to keep it and not to pay full consideration money.”

The whole section, if quoted, would have shown that it relates to the implied trust, arising in case of a vendor’s lienT and not to a case of wrongful and unlawful appropriation, when the estate still remains in the owners.

The whole paragraph reads: “ The principle upon which courts of equity have proceeded in establishing this lien, in the nature of a trust, is, that a person who has gotten the estate of another, ought not, in conscience, as between them, be allowed to keep it, and not pay the full consideration money.” It has no relation to a case like the one before us.

Our conclusion therefore is, -that the unlawful and wrongful conversion and use of land, against the will of the owner, and under such circumstances that he is not prevented or estopped from recovering possession, will not entitle such owner, while the title still remains in him, to maintain an action to recover a judgment for the value of the land, and to an order of sale of the same to pay the judgment; aud that, in such case, the owner has his election, to proceed under the 21st section of the act of 1872 (69 O. L. 95), to recover the compensation and damages to which he is entitled to under the constitution, or by action for the unlawful entry and possession, to recover the possession and damages for use and occupation.

Whether the owner might, under such circustances, tender a title to the corporation, and maintain an action for the value, and charge it upon the land, in case of an insolvent corporation, when the land had been so changed by the corporation as to destroy its value to the owner, we need not here determine. This might depend on equitable ■considerations not involved in the present case.

The judgments of the court of common pleas and the ■district court are reversed and cause remanded for further proceedings according to law.  