
    The Kansas Pacific Railway Co. v. Streeter and Strickler.
    1. Judgment; Service; Notice. There cannot ho a valid personal judgment without notice. To sustain such a judgment there must he due service of legal process.
    2. Railway Corporations; Condemnation of Lands. Proceedings hy railway company to obtain the right of way, are under the State laws, and those laws do not authorize any person through whose land said road may run, to take any steps to have the land condemned, and a valuation thereof made.
    
      
      Error from Davis District Oov/rt.
    
    James W. Streeter and S. M. Strigklbr presented tlieir petf tion to tbe district court for tbe appointment of commissioners to assess tbe damages sustained by them, as tbey alleged, because of tbe construction of tbe railroad of tbe plaintiff in error over certain lands of theirs. Their petition alleged that tbe Railway Oompcaivy was incorporated by an act of Congress, (12 Stat. at Large, 489,) and tbey asked that tbe damages be assessed according to tbe provisions of tbe act amendatory thereof; (13 Stat. at Large, 356.) Tbe court appointed tbe commissioners, requiring them “ to assess tbe damages according to law.” Their report was made and filed in tbe Davis district court, and tbey assessed tbe damages of defendants in error at $800, for which sum judgment was entered against tbe Railway Company. No notice of tbe proceedings was given to tbe Rcdlway Oompcmy, and tbey bring tbe record here by petition in error for review.
    
      J. R. Usher, and E. W. Dennis, for plaintiff in error:
    1. It appears that tbe commissioners were acting under tbe requirements of tbe charter of tbe company, for tbey seem to have taken into account tbe advantages and disadvantages of tbe road to tbe land. (Kas. Ter. Laws of 1855, p. ,914, § 8.) Whereas by tbe petition asking for tbe assessment of tbem,_ under tbe act of congress, tbe damages were to be tbe value of tbe land, if tbe road was not built. (See. 3, of act of congress, of July 2, 1864.)
    2. Tbe proceeding was not properly commenced. Under tbe company’s charter tbe land-owner has no remedy except in trespass or ejectment, or may be by a proceeding to compel tbe company to proceed to have tbe damages assessed. There is no provision for tbe land-owner to petition for tbe appointment of commissioners.
    ' 3. Tbe judgment is void. Notice of tbe proceeding was required, whether tbe damages were assessed under tbe charter, or the act of congress. It is a fundamental principle of tbe law that there cannot be a valid personal judgment without notice.
    4. If the proceeding is under the act of congress, the report is not in accordance with the act, and the case ought to be reversed for that reason, though a notice was not required.
    
      White c& Austin, for defendants in error. No brief on file.
   The opinion of the court was delivered by

Kingman, O. J.:

The defendants in error being the owners of several parcels of land in Davis county, presented a petition to the district court of that county for the appointment of commissioners to assess the damages sustained by them, because, as they alleged, of the injury done to their lands by the construction of the railway of plaintiffs in error over the same. The commissioners were appointed and made their report, assessing the damages at $800. Upon this report a judgment was rendered against the plaintiff in error for the amount thereof. No notice whatever was given the Eailway Company of this proceeding. It would be a novel judicial proceeding whereby a man could obtain a judgment against another without any notice to him, and a proceeding not authorized by law. Eor this reason the judgment must be reversed.

There is a more fatal objection. The proceedings seem to have been taken under the acts of Congress ; 12 Stat. at Large, 489; 13 id., 356. Ve do not think these acts authorize this Eailway Company to obtain the right of way though the lands of other persons. The proceedings to do so must be taken under our State laws, and they do not authorize the owner of the land to take any steps to have the land valued. Ills remedy is plain. He can proceed in ejectment, or trespass, or get damages for use and occupation; and if he proceeds in time, by injunction. The right of eminent domain, transferred by the State to a corporation for a public purpose, could hardly be used by the owner to sell his own lands at a valuation. He does not know how wide the public necessities may require the right of way through his laud; and he cannot sell them one hundred feet when the necessity may be only for twenty-five because through other land the road needs one hundred feet.

The judgment is reversed.

Valentine, J., concurring.

Brewer, J., not sitting.  