
    John W. Evans, Respondent, vs. The Missouri, Iowa and Nebraska Railway Co., Appellant.
    1. Charter of M., I. & N. R. R. — Railroads—Condemnation of land — Acquiescenee in, by owner, what acts not equivalent to — Subsequent restraining order. —The charter of the Mo., Iowa. & Nebr. R. R. (Sess. Acts 1851, §§ 7, 9, 10, 483 ; Sess. Acts 1857, \ 10,) provided that on tender or deposit of the amount found by the commissioners due the land owner on condemnation of his land for railroad purposes, the company might go on and complete the road. A land owner having excepted to the report of the commissioner?, under such proceeding. it wns held that he having exhausted his statutory remedies his failure to ask for ¡m injunction or the appointment of ¡t receiver or other equitable intervention, while the road was being constructed over his lend, was not tantamount, to an acquiescence in its construction, but t.hfit ofter its construction, the road being insolvent, he was entitled, on proper steps token, to payment of the «mount, «warded, or in default thereof to nil order restraining the company from operating' its road over his property.
    
      Appeal, from Schuyler County Circuit Court.
    
    
      F. B. Hughes A. J. Baker, for Appellant, cited :
    Pro-volt vs. 0., R. I. & P. R. R., 57 Mo. 256 ; MoAulay vs. W. & R. R. 33 Yt. 311 ; State vs. Rodman, 43 Mo. 260 ; Torrey vs. Camden & Atlantic R. R. Co., 3 C. E. Greene 293 ; Green-laugh vs. Manchester & Birmingham R’y Co., 3 Myl. etc, 785 ; Hentz vs. Long Island & O. R. R., 13 Barb. 648 ; Erie etc. vs. Delaware etc., 6 C. E. Greene, 283 ; Goodwin vs. Cincinnati etc., 15 Ohio St. 168; High Inj. §§ 387, 397 ; Commissioners of Highways vs. Dunham, 43 Ills. 86 ; Harness vs. Chesapeake & Ohio , Canal Co. 1 Md., 248 ; Ross vs. Elizabethtown & Somerville R. R.- Co., 1 Green. 422 ; Browning vs. Camden & Woodbury R. R. 3 Green. 4 ; and commented on Richards vs. Des Moines Yalley R. R-, 18 Iowa 259; Stewart vs. Raymond R. R., 5 S. & M. 568 ; Bowers vs. Bears, 12 Wis. 213.
    
      liigbee, McGoldrick, 4* Caywood, for Respondent, cited:
    Waither vs. Warner, 25 Mo. 277 ; 1 Redf. Ra.ilw. 238, § 3 and notes 4, '5 ; Id. 238, § 6, and note 8 ; High Inj. §§ 392, 393 and note 1; §§ 396, 399-401 ; Williams vs. N. Y. Cent. R. R., 16 N. Y. lll(referred to in Till. & Sherm. N. Y. Pr. Yol. 1, 695,) Henry vs. Dubuque & P- R. R. 10 Iowa, 54j); Horton vs. Hoyt, 11 Iowa, 496 ; High Inj. note 1, § 392 ; and commented on Anderson vs. City of St. Louis. 47 Mo. 479 ; Provolt vs. O., R. I. & P. R. R., 57 Mo. 256.
   Sherwood, C. J.,

delivered the opinion of the court.

On the hearing of this cause, the court below made an order whereby it was adjudged and decreed that defendant pay to plaintiff, on or before the 11th day of January, 1875, the amount of damages adjudged to Mm at the April term, 1873, on account of certain condemnation proceedings, instituted by defendant, for a right of way over plaintiff’s land. And it was also adjudged that defendant pay interest on the sum thus assessed, together with costs, as well of that proceeding as of the present, and that in the event that such payment was not made at the time designated, that a writ of injunction issue restraining defendant from operating its road and train of cars thereon, over plaintiff's premises, until such sum be paid, etc., etc.

This action of the lower court has caused this appeal by defendant. It is assumed by counsel that plaintiff must be presumed to have waived or postponed his right to insist upon immediate payment for his land. On what a slender foundation this assumption rests will be readily seen by reference to the defendant’s charter and the agreed facts of this case.

That charter (Acts 1857, § 10, and Acts 1851, 483, §§ 7, 9, 10,) gave “ full power to survey, mark, locate and construct a railroad,” and “provides, in order that the progress of the work may not be impeded, that after said viewers have filed their report and plat in the office as aforesaid, the company, after having made a tender of the amount of damages to the person or persons, or made a deposit of the same with the clerk of the county court in which the case may be pending, shall be authorized to proceed in the construction of the work as fully as though no disagreement had arisen.”

The parties failing to agree, commissioners were, in July, 1872, at the instance of the defendant, appointed, who assessed the plaintiff’s damages at $1.00, which sum, defendant, having already located its road, deposited with the clerk, and proceeded to construct its road. The plaintiff filed exceptions to the report\of the viewers, and at the January term, 1873, the court set aside the report and appointed other commissioners, who, at the April term, 1873, assessed plaintiff’s damages at $48, and their report was confirmed and judgment rendered aceoidingly. Meanwhile, however, the defendant’s road had been completed and in operation twenty miles west from plaintiff’s land, prior to the setting aside of the report of the first commissioners, and the defendant’s insolvency is admitted, an execution having been issued and returned nulla bona. It is manifest that there was no acquiescence by the plaintiff in the condemnation proceedings, unless that can be thus termed, which consists only in active resistance. What more than he has done could be required at his hands ? For it seems he could not have enjoined the company from entering on his land for the purpose of doing that which the law gave express authority, viz: marking, surveying and locating its road. And the same remarks are equally applicable to the subsequent proceedings to condemn the right of way and the construction of the road. And this because the company was only exercising its statutory powers ; powers explicitly granted, as the act in terms shows, in order to prevent the work from being impoded. (1 Redf. on Rly., § 97, 371; Walther vs. Warner, 25 Mo. 277.) And even if it were doubtful as to whether equity would interpose by injunction, notwithstanding the grant to the company of legislative authority, still this doubt should certainly not work the plaintiff an injury, nor should laches or acquiescence be imputed to him because he did not in addition to, and in conjunction with, his statutory methods of resistance, appeal also to chancery for aid, when it was at least doubtful whether any assistance from that quarter could, under the circumstances, be secured. It 'will not be directly claimed, though this is frequently done in an indirect and roundabout manner, that the rules of either law or native justice should change because a corporation happens to be plaintiff or defendant. If, in the present instance, the plaintiff had, of his own head, sold the strip of ground in controversy to an individual defendant, no one would doubt that unless waived by some affirmative or unambiguous act, the vendor’s lien, still existing in all its original preference and priority, would be capable of enforcement, notwithstanding the insolvency of the purchaser. Would not this doctrine, a fortiori, apply where the property is seized in invitum — seized by a corporation in derogation of common law and common right ? If the vendor’s lien has its origin in the idea that it would be unconscionable to allow the vendee to retain property voluntarily sold to him, and not pay its price, would not such retention be equally against good conscience, where the sale is compulsory, and the property transferred by mere operation of law? It would seem clear, beyond question, that the usual equity of a vendor in this regard would be so greatly strengthened by that imperious constitutional mandate, which prohibits property from being taken without just compensation, as to require, if anything, more cogent evidences of waiver than under ordinary circumstances ; for surely a constitutional right should not be lightly inferred away, nor should courts be ingenious in drawing remote and strained inferences in support of an assumed waiver, where a corporation is to be benefited thereby ; inferences which they would speedily scout, were natural persons, under similar circumstances, invoking remedial justice.

If the law favors uniformity, if, indeed, it is no respecter of persons, there can be no difference in point of abstract principle, nor yet in its application, whether applied to the adjustment of rights between a natural person and a corporation, or where a like adjustment is sought between individuals alone. These remarks are induced by the position of defendant’s counsel, before referred to, and by the authorities cited in support of that position.

In the case of Provolt vs. C., R. I. & P. R. R. Co. (57 Mo. 256), a case which goes far beyond any other to be found in the books, it was held that ejectment could not be maintained against a railroad company, although failing to pay the owner for his land, and this upon the ground of his, having waived his right to insist on immediate payment. But though the remedy by ejectment was denied, because of the supposed waiver, it was still held that the plaintiff was entitled to equitable relief, ex. gr. by having a receiver for the road appointed. That case is claimed as the counterpart of this, and so it would seem to be, and it is insisted that a waiver which should preclude a recovery in ejectment, should likewise preclude an-injunction. And there would appear to be no little force in the observation, because either method of redress, if enforced, would effectually interfere with the interests of “ the public,” by preventing the operation of the road, which appears to be regarded by defendant’s counsel as a very strong point.

In Walker vs. C., R. I. & P. R. R. Co., (same volume), it was held that mere silence and inaction for the time being, on the part of the land owner, while a railroad was being built over ’his property, would not be construed into acquiescence nor estop him from his action of ejectment. And in Walther vs. Warner (25 Mo. 277), cited with approval in the Provolt case, it is said in conclusion, that “ all the cases in all the books seem to assume that an individual cannot be absolutely deprived of his property without the actual payment of the assessed price, even though a proper provision is made in the act authorizing the taking of it; and perhaps it would be better to hold that, even in cases where proper provision is made for the payment of the price, so that the property is allowed to pass, it passes subject to the condition that the price is subsequently paid, so that if for any cause it be not paid, the party may re-possess himself of it on account of the condition broken.”

It is altogether unnecessary to say whether the facts in the Provolt case were of a character to establish the inference of a waiver. It is sufficient to observe that, applying the rule before announced, the same rule which should govern between ordinary vendor and vendee, we have after careful consideration of the facts before us, been unable to discover anything .on the part of plaintiff, even remotely indicative of an intention to surrender, or so much as postpone the right which the constitution so sedulously protects. For he met the railroad company at the very threshold of controversy, exhausted every means of statutory resistance, and I, for one, will never say that this amounts to either laches or acquiescence, or that his appeal to a court of equity for the enforcement of a plain, constitutional right shall be in vain.

The case of McAuley vs. Western Vt. R. R. Co., (33 Vt. 311) an action of ejectment cited in the Provolt case as “ strikingly in point” originated in a written contract between McAuley and the railroad company, to take stock at its par value for his -damages. And the company entered with the consent of the owner, and completed its road in 1851. During the progress of the work, and when near completion, the parties disagreeing merely as to the quantum of damages, proceedings were instituted by the company, damages assessed, and their amount in stock deposited with the clerk, McAuley having repeatedly refused to receive it, and there it remained at the commencement of the action of ejectment, six years thereafter. But there was no attempt on his part to revoke the license, granted the company to enter on his land, although he discovered the alleged fraud (which consisted in the particular line of location of the road through his land) before the damages were assessed. Meanwhile, however, the decree of foreclosure obtained upon the first mortgage became absolute, and the title to the road and franchise passed to the trustees under the mortgage. And this appears to have occurred prior to the bringing of the ejectment suit. The only burden of McAuley’s complaint, as is clearly shown by Judge Redfield’s opinion, was not the taking of his land ; on this score he had and made no objection until he brought his suit. On the contrary, “his great desire” (as the learned judge remarks) “seems to have been that the damages should be agreed upon, and that he should be released from all claim under the written agreement to accept stock. To this extent his remonstrances were sufficiently loud and intelligible. ” * * * “ And he was therefore willing that they should go forward in the construction of their road, if they would only agree to pay him the money for his land damages.”

All these circumstances were taken into consideration, and the plaintiff was held not entitled to maintain his action. And the obvious justness of that decision, proceeding as it does on the grounds of license, imthe first instance, under a written agreement, of silent acquiescence for six years after the discovery of fraud, and the acquisition of rights by innocent third parties upon the faith of that agreement, cannot be questioned. But the facts of that case bear not the faintest resemblance to this ; and it is a total perversion of language to assert the remotest analogy between them. And the same may be said of Goodin vs. Cincinnati and White Water Canal Company (18 Ohio St., 169), for that was a bill in equity between a portion o£ the stockholders of the Canal Company and two railroad companies, in consequence of a fraudulent combination, whereby the canal was despoiled and a railroad track built thereon. There was laches in that case also, and the complaining stockholders of the Canal Co. might well be “presumed” to know and acquiesce in what their own directors were doing.

Greenhalgh vs. The M. & B. R. R. Co., (3 Mylne & Cr. 784) was a proceeding for specific performance of a written contract between the plaintiff who was an “ assenting party ” to a bill offered in parliament to establish the South Union R. R. Co., which, by act of parliament, was consolidated with a bill for the formation of the M. & B. R. R. Co. A temporary injunction in aid of the proceeding for specific performance was granted, which, on final hearing, was dissolved on the grounds above stated, in connection with the fact that the plaintiff had written to the company expressing his entire willingness to let it have such portion of his land, embraced in the written contract, as might be desired. •

Toney vs. C. & A. R. R. Co. and R. & D. B. R. R. Co. (3 C. E. Green., 293) was merely a proceeding by the contractors who built a branch road for one company to compel defendants to pay for the work, and to restrain the R. & D. B. R. R. Co. from using the branch road till paid for. Injunction was refused because plaintiff’s remedies at laio were ample, and it was observed : “If the road was in their possession they could maintain trespass ; and if not in their possession and not let to the company, possession could not be obtained by ejectment.”

Erie R. R. Co. vs. Del., Lack. & Western and Morris & Essex R. R. Co’s, (6 C. E. Green., 283) was a contest between rival, railroad cornpanies as to which .was entitled to a right of way, the title to which was in dispute. Besides the complaining company had not only witnessed without objection the construction of the rival road, hut had lent its “active assistance” by selling for a large sum of money a portion of his own land to aid in the construction of the road complained of, and it was held that injunction could not be granted, and this very properly, owing to the equitable estoppel which had clearly arisen.

There is nothing, therefore, in the incidents of these cases at all parallel to the case at bar, or which give the slightest support to the position taken by defendant’s counsel; and the like observation applies to Commission of Highways vs. Dunham, (43 Ill. 86); Ross vs. E. & S. R. R. Co., (1 Green. Ch. 422); Browning vs. C. &W. R. R. Co., (3 Green. Ch. 47); and in Harness vs. Chesapeake & Ohio Canal Co., (1 Md. Ch. 248). also cited for defendant, where an injunction was granted, it was held that the act of the legislature only conferred a “ temporary privilege ” on the company to proceed with its work ; a privilege which ceased when the damages assessed were not paid. And it was also .said: “If the owner has the right to insist upon the payment of the money before his property is wrested from him, (and such right cannot be disputed) what is to prevent him from invoking the aid of the court for his protection, if the judgment for the money remains unpaid. The argument that the judgment is no more than a general lien, does not militate against this right of the owner of the land. His title does not rest upon his right, as a judgment creditor, but upon the act-of assembly, and upon that settled and fundamental doctrine according to which the owner of property, taken for public use, is entitled to compensation, and as Chancellor Kent says, “ to have it paid before or at least. concurrently with the seizure and appropriation of it.”

The further position is taken for defendant, that although the road is completed and in operation, the owner not paid, the company bankrupt, and all the injury done to plaintiff that can possibly be done, and after “ the public has acquired a right ” that this is a reason why equity should not interpose by granting restrictive relief.

This position is taken with a very poor grace by a corporation, which, under the arbitrary forms of law, has wrested property frum its owner. But the complexion of this case is not at all altered by any or all of the aforementioned circumstances. That mythical personage, “ The Public,” so often summoned as a convenlent accessory when some flagrant wrong upon constitutional right is in contemplation, can only acquire rights” in the land even of the humblest citizen by payment therefor. The plaintiff not being guilty of laches, not having waived or postponed his claim, his right to pay for his property as a constitutional condition precedent still exists in all its original vigor. And for the enforcement of this right equity will fully supply a remedy, and such a remedy as willfully meet the exigencies of-the case. For as Judge Story so eloquently observes: “ The beautiful character, pervading excellence, if one may so say, of equity jurisprudence,- is that it varies its adjustments and proportions so as to meet the very form and pressure of each particular case in all its complex habitudes.” (1 Sto. Eq., Jur. § 439.) And Lord Chancellor Oottenham repeatedly laid down the rule that it was the duty of a court of equity to adapt its practice and course of proceeding, as far as possible,'to the existing state of society, and apply its jurisdiction to all those new cases, which, from the progress daily making in the affairs of men, must continually arise.” (22 Redf. Railw., 310, § 9, and cas. cit.)

Now it is obvious that were the plaintiff’s lien as vendor to be enforced, it could only result in a sale of that portion of the railwa.y track passing through plaintiff’s land; a something which would be of no use to a third party, and if bought in by plaintiff, himself, he would be in the same situation as at present, without compensation for the injury done that portion of his land covered by the railroad track, and without pay for the damage necessarily resulting to that portion not thus included. And it is equally obvious that it would be quite as unavailing to have a receiver appointed to administer the affairs of a bankrupt corporation. But even were this not so, a court of equity, owing to the flexibility of its powers, is not confined to a single method of affording redress, but will, as just seen, adopt that method of administering relief, as will, without circuity of action, compel the party in default to do equity.

The method best promotive of such end is that resorted to by the court below, and abundantly sustained by the following authorities :

In Stewart vs. Raymond R. R. Co., (7 Smedeand Marsh, 568) where the road was already completed and in operation, but the company insolvent, an injunction was granted until the payment of damages, and if not paid in a reasonable time the injunction to be perpetual. In that case it is very pertinently said : “ The company does not pretend that the purchase money has been paid ; neither does it deny its liability to pay the damages awarded. It only insists that it is entitled to an indefinite credit and to the intermediate enjoyment of the easement, until the money to pay can be made. We know of no principle to sustain this assumption. * * * If the company has no right to the easement before the payment of the damages, the proposition that Stewart has a right to restrain the passage of the cars until such compensation, would seem to follow as an inevitable consequence.” To the same effect are 1 Redf. Railw. 241, § 6, and cas. cit.; Richards vs. D. M. V. R. R. Co., 18 Iowa, 259; Henry vs. D. & P. R. R. Co., 10 Id. 540; Horton vs. Hoyt, 11 Id. 496; High Inj., § 393; Davis vs. L. C. & M. R. R. Co., 12 Wis. 16; Cozens vs. Bangor R. R., 12 Jur., N. S. 738. And the doctrine asserted by most of the authorities, (Nichols vs. Salem, 14 Gray, 490; High. Inj. § 394; New Albany vs. Connelly, 7 Ind. 32; Parham vs. Justices, &c., 9 Geo. 341; Keene vs. Bristol, 26 Penn. St. 46), that where a statutory remedy is provided for obtaining damages for private property, taken in the construction of roads, equity will not extend its protection until such statutory remedy be first exhausted, does not affect the status of the plaintiff, as he has brought himself fully within the rule by exhausting all statutory measures of redress before appealing elsewhere for aid. The doctrine above mentioned, that it is wholly impossible for the land owner, prior to the exhaustion of the remedies the statute provides, “to obstruct or in anywise impede the progress of the work,” as well as the obvious corrollary deducible from such a premise, would seem in the Provolt case to have entirely escaped observation.

The foregoing reasons seem conclusive that the judgment should be affirmed, and it is so ordered.

All the judges concur.  