
    RAILROADS — APPROPRIATION.
    [Trumbull Circuit Court,
    November 15, 1888.]
    
      Pittsburgh & Western Railroad Co. v. Jacob B. Perkins.
    1. Receivership — Action to Compel Appropriation.
    Where a railroad company is m the hands of receivers appointed by the court in another state, not for the benefit of creditors, nor because the company is insolvent, but for some reason of which this court is not aware, presumably some scheme relating to reorganization, the title and estate of the railroad being in the company, the company, not the receivers, is the proper party in an action to compel appropriation of lands to which the company has no title and upon which its road has been constructed.
    1 Purpose of Sec. 6416, Rev. Stat.
    The object and purpose of Sec. 6416, Rev. Stat., relating to the filingof a petition for appropriation of land by a railroad company in the probate court, and requiring a description of the lands sought to be appropriated and the use to which they are sought to be applied, evidently, is to compel the railroad to appropriate such an amount of land as the court shall determine necessary for its purposes, but such rule cannot have much force in a case where a railroad company has taken possession of land and operated its road upon it for several years, and both parties seem to be content, so far as the amount of land taken is concerned.
    8. Jurisdictional Averments Under Sec. 6448, Rev. Stat.
    Inasmuch as Sec. 6448, Rev. Stat., requires a petitioner in a proceeding to com pel a corporation to appropriate property in its possession, to which it has no right, legal or equitable, to allege in his petition that the land has been occupied by parties having no legal or equitable title thereto, that notice has been duly served, and the time of limitation under the notice has elapsed, such statements are jurisdictional. The inference of the whole statute is that possession gives no equitable right nor any legal title to the lands.
    4. Date of Compensation for Lands Unlawfully Taken.
    A railway company, by taking possession of and constructing its road across the lands of another without appropriating the same, or entering into any written agreement therefor, acquires no legal or equitable title thereto under Sec. 6448, Rev. Stat., authorizing proceedings to compel the appropriation of property so held. The railroad company, in such case, is a trespasser, and, notwithstanding it has held certain lands for fifteen years, the value of the land at the time proceedings were -brought, not at the date when it was taken, _should govern in estimating damages for its unlawful appropriation._
    
      5. Property Owner’s Acts — Estoppel.
    A railroad company having taken possession of lands of another without appropriation or written contract the owner does not lose the remedy afforded him by Sec. 6448, Rev. Stat., relative to requiring appropriation, by standing by and seeing a road constructed and operated on his lands unless he stands by in such manner as to lead the road to believe that it may have the right of way without paying for it and assents to their going on the land.
    6. Unrecorded Map Admissible as Evidence.
    An unrecorded map of lands through which a railroad passes, showing the location of the railroad and availability thereof for division into lots, is admissible in an action to compel appropriation, ior the purpose of showing in what manner it might he divided and what may be done as to divisions.
    7. Depositions — Discretion of Trial Court.
    ■ It is within the discretion of the court to refuse to grant a motion to continue the hearing of a proceeding to appropriate land a sufficient time to give the railroad company an opportunity to take the deposition of the land owner, who is not present at the trial and is without the county.
    Heard on Error.
    
      
       Affirmed by the Supreme Court, in Railroad Co. v. Perkins, 49 Ohio St., 326, aa to date when compensation should be determined.
    
   Caldwell J.

This case was commenced in the probate court and taken from there on error to the common pleas, and on error from the common pleas to this court.

The tacts are that Jacob Perkins died intestate, having at the time of his death a large tract of land, some six hundred acres or more, lying close to the city of Warren, a part of the land perhaps being inside ol the corporate limits, and leaving a son, the defendant in error in this action, J. B. Perkins. In his will he provided that the trustees should take his estate, care for it until his son arrived at a certain age, when it was to be turned over to him; and there was a provision in this instrument that the trustees should not sell or encumber propertjr.

In 1872, while the trustees were in charge of this estate, I think it was in 1872, but I would not be sure, the Painesville and Youngstown Railroad Company, in building its road through between these two cities, crossed this land or that portion of it which is here denominated as about one hundred and sixt3’-three acres which lies next to the city; built its road from the southeast corner through to the northwest or nearly to the northwest corner, diagonally; built it without any arrangement with these trustees, regarding themselves as having no authority to sell or enter into any .arrangement in this matter, as it is stated, and they continued to operate the road after it was constructed for some time and, perhaps in 1878, a mortgage on the road was foreclosed and it was sold, and the company reorganized, taking the road known as the Painesville & Youngstown Railway Company. This company continued to operate until sometime in 1885 or 1886, perhaps, when the company passed into the hands ot the defendant. The defendant was at that time in such a condition in regard to this railroad property that it had two trustees appointed to take this property and operate it for the time being.

When the Painesville & Youngstown Railway Company was being closed up there was litigation carried on in Lake county, commenced sometime in 1882 or 1883 or 1884 ; I have not the exact date, undertaking to marshal all the liens and claims against this Painesville & Youngstown Railway Company. J. B. Perkins was a defendant in that action and set up some claim for this land, 'but under'a holding of the court, that claim and all claims iounded, as it was, were not acted upon and were left without prejudice and in a short time after the termination of that litigation this action was commenced, the petition, I think, being filed in May, 1887.

It is claimed here that there was error in the probate court and that error is set out in the brief of counsel for the railroad company, and it is claimed that the common pleas court erred in affirming the proceedings of the probate court.

The first objection that is noticed to these proceedings on behalf of counsel lor the railroad company is, that the petition, taken altogether, shows a right of action in the plaintiff or shows that there was a right of action in the plaintiff other than the action he has brought, and that taken altogether this petition shows that the railroad company had rights, had acquired rights, in this strip of land over which the road passes, which would not permit the proceedings which were had in this action, and in view of what I shall say hereafter I will give it no further attention at thjs time.

Then the objection is made that they were not the proper parties to this action; that these receivers should have been made defendants; and in fact, the objection goes so far as to claim that the railroad company is not a proper party and should not have been a party at all, but that the receivers alone should have been sued in this action.

We have given this matter the attention that we think'it is entitled to and we think that the land owner in this instance had a right to proceed, if he had a right to proceed in this way at all, directly against this company. The title, the estate of the road generally, was in the company; and the matter as set forth in the brief of counsel shows most conclusively that these receivers were not here for any other purpose thajr that simply the company was seeking some reorganization and making some private arrangements, although doing that, if necessary, in the courts of Pennsylvania, and shows also that these receivers were appointed by a court in Pennsylvania to operate this road during the pendency of these proceedings. They are not appointed to operate in behalf of creditors; not appointed to operate because the company was insolvent, but because of some proceedings there and because of arrangements in the company that are not made known to the court in this action. And, we find that the claim as set up in the answer is not that these receivers were necessary parlies; but that not making them parties is a complete bar to this action and the objection in the brief is aimed at the same point. We think it is not well taken. The action is properly brought.

The next objection is that the probate court did not find what land was necessary. Now, it is necessary for the probate court to make some finding in regard to these matters. There was no objection taken at the time to the findings that the probate court made; it is only sought to be raised further in the case, after that adjudication is made complete, as complete as it ever will be made in that action unless there should be a retrial de novo — new proceedings. There were no exceptions taken at the time and only raised further on after the jury was summoned and the case proceeded to trial; then the matter is raised and tried; and we find by examining the record, that the court did quite fully comply with the requisites of the statutes.

The object and purpose oí this requisite of the statute, Sec. 6416, Rev. Stat., is certainly very clear to any one who examines it; and a■ railroad company, in appropriating land through which it wants to run its road, might appropriate very much more than is necessary, or, on the other hand, it may appropriate less than is necessary and thus render quite worthless or subject to great danger from fire, and so forth, other portions of the landowner’s property lying close to and adjacent to the track; and the object is evidently to keep the railroad company from taking and using more than is necessary of the party’s land, 01 from taking and using less than is necessary to run its road, and hence it is left to the court to determine.

Of course that rule cannot have, and the reason of that rule cannot have much force in a case where parties have taken possession of the land and operated a road upon it for a number of years and seem to be content with that. 'Now, if the land owner is content with that taken in this proceeding, it seems to us that the reason of the rule under those circumstances must fade entirely away; hence, the rule is of no importance in this proceeding.

Objections were taken to the introduction of a map. A map was drawn, not placed on record, which was used in the trial in the probate court. It was drawn by a competent engineer. Objection was made to this map and it was admitted. The court expressly confined the admissibility of this map and said he admitted it in evidence* to the jury to show the location of the railroad and the availability of the land ior division into lots. This map has it divided into lots and shows in what manner it might be divided and what might be done, as to divisions, and for these purposes only, and the defendant to that excepts. We have compared the ruling of the Supreme Court in Cincinnati & S. Ry. v. Longworth, 30 Ohio St., 108, in regard to the admissibility of a map and the character of those proceedings and we think the court, confining 1 his map, as it did, for the purpose for which it was admitted, did not err in admitting it as testimonv.

There is a complaint that during the trial of this case the court would not continue the case a sufficient length of time to give the attorney for the railroad opportunity to take the deposition of the defendant in error.

The defendant in error resides in Cleveland, was not here at the trial, and it seems they desired to ask him some questions; it would seem from the testimony, to ask him some questions particularly for the purpose of contradicting him by showing what he had said on certain occasions. In this the court acted purely at its discretion in a matter of that kind, for the circuit court in the eighth circuit decided only a short time ago, that during the trial of a criminal case, where they expected the witness to be present, and where he had agreed to be present, but, residing out of the county, and that owing to sudden illness, he was unable to be present in court, a refusal by the trial court to permit the testimony of the party to be taken, although they had to go only from Medina county to Columbus to take that evidence, was not erroneous.

And, while the judges of the eighth circuit felt that they would have acted a little differently from what the trial court did, they did not feel at liberty in a case of that character, under all the circumstances of it, taking into consideration what they expected to show by this witness, to interfere with the discretion of the court. This is certainly a case of equal importance, and where the court had a right to exercise its discretion, it did not abuse that discretion. That being true, there was no error in this refusal.

He says that he was prejudiced by the rulings of the court in refusing to allow him to cross-examine Burrows as to certain conversation that Burrows had or that Burrows overheard, to which the counsel of Perkins took exception in another action; and without stopping to consider that matter, for it does not seem to be insisted upon very vigorously, we will say there was no error in the rulings of the court in this matter.

This brings us now to what the attorney tor the railroad company says is the great question in this case. That is this: In a proceeding of this kind, are you to take the value of the property (this road was located upon this land in 1872 and these proceedings were brought in 1887), as it was in 1872 when the road was located, or are you to take the value as it was in 1887, and is now, at the time these proceedings were brought; that is, as it was at the time the proceedings were commenced? Upon that we have taken a great deal of time to examine this case; have inquired into all the authorities we could find here, and have given it a good deal of consideration. This remedy sought here is statutory; it is found in Sec. t>448, Rev. Stat. Now, this is giving the parties a new remedy, this statute; and in a case that went to the Supreme Court it was argued as giving a new right and also argued on the other side that it did not give a new right, and the object and purpose of this argument was no doubt that if it gives a new right, then the statutory proceeding prescribed is the exclusive remedy; but if it only gives additional remedy to a right already existing, then it is not the exclusive remedy, but is merely a cumulative remedy.

The attention of the court is specially called to that part of the section providing that: “When a corporation authorized by law to make appropriation of private property * * * has taken possession of and is occupying or using the land (it must be a company entitled to make appropriations), of any person * * * for any purpose, and the land so occupied or used has not been appropriated and paid for by the corporation, or is not held by any agreement in writing with the owner thereof, * * * such owner or owners, or either of them * * . * may serve notice in writing upon the corporation in the manner provided tor the service of a summons against a corporation, to proceed under this chapter to appropriate the land; and on failure of such corporation for ten days so to proceed, said owner or owners * * * may file a petition in the probate court of the proper county” (here is something they must be able to state; setting forth the fact of such use or occupation by the corporation, that the corporation has no right, legal or equitable, thereto, * * * that the notice provided in this section has been duly served, that the time of limitation under the notice has elapsed, and such other tacts, including a pertinent description oi the land so used or occupied.”

This section then provides a remedy where the land has not been appropriated, where there is a written contract between the owner of the land and the corporation located upon the land; and where the petitioner can state these jurisdictional facts, that is, that the land has been occupied, that the person thus occupying it has no legal or equitable rights thereto, that he has served no notice required in this section. These would seem to be jurisdictional tacts inasmuch th'e court requires them to be alleged in the petition. It is evident, then, that this section means that you cannot avail yourselt of this remedy if there has been a legal appropriation. You cannot avail yourselt of this remedy if there is a written contract in regard to this matter between the parties. You cannot avail yourself of this section, of this remedy, unless you can state in your petition these jurisdictional facts.

If that is necessary, then, when the party filing the petition says that the defendant has no legal or equitable rights to this land, it must mean the same .there, that they must have some legal and equitable rights other than could have been acquired by this possession; that must be self evident. Therefore it means simply this, that if they have gotten on there.

Suppose the land is owned by persons jointly, or cotenants, and they have obtained the rights of some cotenants, or suppose they have acquired a title where there are two or more titles outstanding to get in and have some title in that'way; and this must be confined to that, where they have some title to the land and have gained possession under it.

The whole statute, then, taken altogether must mean that if the railroad company has simply gone upon that land and located its road there, that it acquires no title and no equitable right by so doing, and we are confirmed in that by Atlantic & G. W. Ry. v. Robbins, 35 Ohio St., 531, 539, a case of a great deal of interest that went up from this county. It says: “Until paid,” where they proceed under this section, “the title and escate remains in the heirs;” that is, until the land is paid for. “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.”

This is what the statute means by unlawful entry and possession. When we consider that the statute requires that they shall pay for the land before they use it, that if they do contrary to the provisions of the statutes and the constitution and go upon land they must go upon it unlawfully and therefore wrongfully.”

The present action was originally one at law. By amendment equitable relief was also demanded. Such an action in case of unlawful 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 in the case as under proceedings, authorized by the above statutes. Such payment to the administrators would not estop these heirs. The title is still in them.

In this very case, they had occupied these lands and the court say that Robbins himself was not so estopped is clear; he took pains to show that in his petition, by asking for a recovery of the lands in the event he was not entitled to compensation or damages, and I will notice another instance in a lew moments.

So that this statute, then, provides that in a case where possession has been taken, the petitioner must be able to state that the railroad has no legal or equitable claim therein, and the argument of the statute is a clear inference — the inference of the statute is that possession gives no right, no equitable right nor any legal title to the lands.

It is said that where a party stands by and sees this thing go on, that this remedy is lost to him. That may be true where he stands by in that manner whereby he may mislead the road to believe that he intends they should have the right of way without paying for it and he assents to their going on his land; then it may be true, but where the circumstances were as we consider them in this case, that that assent was not fairly to be understood by the railroad company and is not to be understood by the court, that there was any assent on the part of Perkins, nor was there delay tor any such purpose, nor such intent, nor could the railroad company inter such intent under all the circumstances of this case.

In Platt v. Railway Co., 43 Ohio St., 228, 240 [1 N. E. Rep. 420.], there was a case up near Toledo. The Lake Shore Company appropriated more land than it needed for its tra'ck, and this land was afterwards, a part of it, sold by the Lake fcihore Company to the Pennsylvania Company, twenty-five feet of this strip of land they had appropriated. The question came into court by the lormer owner of the land suing the railroad company >for damages caused to him by the railroad company putting another track there, and the Supreme Court says, where the latter company, that was this Pennsylvania Company, by reason of such purchase constructed on said surplus of land a railroad and operated the same for several years, the land owner is not authorized to recover by civil action such surplus so enjoined in the operation of such railroad thereon; but he may by action treat the transaction as an abandonment of such surplus by the first company and as an appropriation by the last company and recover damages as upon an appropriation; that is, when the Pennsylvania Company went up there and built their railroad, he may afterwards treat that in that way, it being virtually an appropriation, and sue and recover.

The court in the opinion said: “And in such case, where the interest, as here, was an easement, it is not merely for the stale to complain, but the owner has his'remedy directly, Sometimes this remedy may be to compel condemnation under the statute.”

Now, that is one remedy — the one we will consider here: “But the Pennsylvania Company is a foreign corporation without power of condemnation.”

Therefore, that remedy was not available in this action. “Sometimes the remedy may be by action to recover possession or to restrain the running of trains until compensation is made; but where the plains tiff has stood by, as may have been the case here, until the improvement was made, either of such remedies would be harsh. Under the circumstances disclosed in this petition an action to recover as upon appropriation seems to be the proper remedy, and consideration of the following cases will show as well that such action is warranted as that here was a clear case of abandonment.”

And there comes in the remedy, one of these remedies .not being available, the other two being harsh, he having stood by, the party may now avail himself of this fourth remedy, and treat the possession taken as an appropriation and sue lor his money, whatever the damage has been to him.

That is not saying by any means, but that the court would have held that this company had the power to appropriate this land; it is not saying but the court would have held it was his remedy and the remedy he mujt follow in this very action: hence the case does certainly not decide, if the company there first had the right to appropriate land in Ohio, that he might not have followed the statutory remedy under consideration. That being the case, and a majority ol this court looking upon the statute as giving this lower party, who is located there, no right by reason of location; that there was no such standing by as would imply any right in the company or any title in the company; that this remedy is now available to Mr. Perkins in this action.

The time of the proceedings, is the time for the fixing of the value of the property and it is so ruled by a majority of the court.

I believe this as far as it is necessary to consider the exceptions raised. They are all considered, and the maj’ority of the court affirm the judgment below.

Laitbie, J.,

dissenting.

This case is one brought in the probate court for appropriation or to compel the appropriation of property by the plaintiff in error, and the facts disclosed are that the property was taken wlnlly into the possession of the railroad company and a road built and constructed there in 1878 and was thereafter continuously used by the company.

This proceeding was commenced in 1885. The court ruling that the value ol the property, that is the damages to be assessed to the plaintiff in the proceeding was to be assessed as of the date of the commencement of the proceeding, and not as claimed by the railroad company as of the date of the possession taken. This, by a majority of the court, is affirmed and in a very few words I will state why upon this proposition I cannot concur in that opinion. 1 do not dissent from any other proposition held in the case except this. While I have doubts upon the propriety or competency of introducing Ihe plat in evidence, I am not so sufficiently pronounced in my opinion as to dissent from the holding of the court upon that proposition, and I dissent only upon this, and I do it, first, because the time of injury and the assessment of damages must be fixed and certain and not fluctuating; and it is to be, in a class of cases like this, one of three times. It must be either at the time of the act done of taking possession of the property or it must be at the time of the commencement of proceedings or of the trial. The court establish that it shall be at the time of the commencement of the proceedings, twelve years of the time intervening between the time of the act of taking possession and the -time of the commencement of the proceedings.

Now, as I have said, the time for the compensating of damages must be fixed and certain ; it cannot be fluctuating at the will or election of plaintilt. He cannot elect or take the time of the commencement of proceedings for it instead of the time of the injury, because of the rise in value of the property and therefore an increase to him of damages or the amount to be awarded to him. It is not at his election ; it must be fixed and certain.

On the other hand had it deteriorated in value, if, for instance, it had run from ten thousand dollars down to one thousand, the railroacl company could not compel him to forego full compensation for the injury which he sustained at the time, because he is entitled to full compensation for all the injury which the act caused him; and in this way it is simply robbing him if the land was worth ten thousand dollars at the time it was taken and only one thousand at the time the proceeding was commenced. The time must be fixed and determined and it should be at the time ot the injury or of the act of taking possession.

Secondly, because generally the time for the assessment of damages is when the ininry is full, complete and perfect. In this instance the injury was full, complete and perfect when the company took possession of his lands and built their road upon it, which was said to be in 1878 This would say then that the act was done in 1873, which caused this injury and the damages ought to be assessed as of that injury and as of that time. That is the general rule, and any delay in paying the compensation is to be in law compensated for by the payment or allowance ol interest.

Again, third, he has approved and confirmed the act of the company and waived the tort. He has confirmed the act of appropriation in fact in 1873, and having thus confirmed the act, which the company did in 1873 in taking his land, that is the time to be fixed for assessing its value.

Fourth, because the damages belonged to the owner of the land at the time ol its taking. This is perfectly well settled, that where land is taken actually and invaded by a railway company, taken into its possession, work done upon it and track built upon it, the injury is to the then owner of the land, and of course the compensation belongs to him and it does not pass to or vest in the grantee, subsequent grantee or owner of the land unless it has been sold or transferred to that grantee specifically. The grantee buys the land afterwards with the railroad upon it at a diminished value and pays that much for it, and the owner from whom it was taken receives that much less for it. His property has been taken from him and it is to him the compensation goes. If the rule established by the majority of the court is to prevail it does not go to the owner of the land at the time of its taking, but to the owner of the land at the time of the commencement of the proceedings, which would be a violation of all known principles of law. A conveyance of land with incumbrance upon it, conveys it just in the condition which it is in. Hence, too, I say that the construction, as put upon it by a majority of this court, of this statute is too broad for this reason, it would give the right to compel a railroad company to appropriate land in this instance to the then owner although he did not own it at the time the company took the land and to be responsible to the original owner and to be responsible also to the party who never purchased the chose in action or right.

Again, the railway company enters upon the possession of a man’s land without any writing, no written contract, but the understanding that they shall pay to him a reasonable compensation tor it. There is nothing in writing, but they enter with his full consent and with the understanding that they shall pay reasonable compensation for it. If he subsequently sells the land, does he transfer the title to the grantee ? Nobody claims it, but if he does, the subsequent grantee, the now owner, would compel it because he can show the company is in possession without having legally appropriated and paid for it and not holding it by any written contract with the owner.

There is still more in the act that the petitioner alleges, to show that it has neither legal nor equitable title and it is in the possession of that company; it has equitable title because it caunot be dispossessed.

Again, fifth, because the statute of limitations runs from the time of the injury committed. If these parties wait for twenty-one years from the time when full and complete possession is taken of the lands their remedy is gone. The statute of limitations run from the time of the injury, the time of taking possession by the railway company ol the land of the owner. This, if it needs illustration, is illustrated by the doctrine laid down in Platt v. Railway Co., supra, that the party may sue a railroad company; not as stated in Atlantic & G. W. Ry. v. Robbins, supra, ior the conversion of real estate had in taking the land in actual appropriation. He retains the title in fee and all the railroad company gets is an easement. He may sue ior damages and the rule oi damages is the value of the property taken and the injury done to the adjacent property precisely as upon an appropriation. That is established by Platt v. Railway Co., supra, and it follows the doctrine in the Goodwin v. Canal Co., 18 Ohio St., 169 [98 Am. Dec. 95], which decision was announced before the passage of the act that where a landowner stood by and allowed the land to be taken and a road built upon it, he could not contest the right of the company; all that remained was compensation, so the fact comes that he may have such a remedy at law. I say the statute of limitations commencing to run from that time shows the injury from then and damages must be assessed from that date ot the injury and for any delay interest must be given.

For these reasons I cannot concur with the majority of the court.  