
    The Cleveland and Pittsburg Railroad Company v. Owen Stackhouse.
    "Where a petition states only that a railroad company, in locating and constructing its road on and through the plaintiff’s land, appropriated about two-acres of the land to its own use, and located its road through the land in a diagonal manner so as to greatly injure the same, and committed other-acts and trespasses upon the land to the plaintiff’s damage of one hundred, and fifty dollars: Held—
    1. The petition does not state facts sufficient to constitute a cause of action.
    2. The defect being not merely a want of facts necessary to constitute a perfect statement of the cause of action, but a want of facts necessary to constitute-a cause of action, such defect is not cured by verdict.
    *Error to the district court of Columbiana county.
    The original action was brought by the plaintiff, Stackhouse, to recover from the Cleveland and Pittsburg Eailroad Company for an alleged trespass. • The plaintiff stated in his petition that he was “the owner of a certain tract of land in said county, and that said company, well knowing the same, in locating, laying out, and constructing their railroad on and through the premises . . .
    without the plaintiff’s consent or approbation, did appropriate-about two acres of said plaintiff’s land to their own use, and also-located said railroad track through said premises in a diagonal manner, so as to greatly injure the said premises, and causing said plaintiff to build extra fences along said railroad, and by digging-ditches along and through said land, which injured and'damaged the owner; and other acts and trespasses committed and done by said defendants, to the said plaintiff’s damage of one hundred and fifty dollars; and therefore said plaintiff sues,” etc.
    The defendants below, in their answer, say they are not guilty of said trespasses, and, in bar to plaintiff’s action, say that on or about the 26th day of December, a. d. 1849, said company did appropriate nearly two acres of land of the plaintiff for the use and purpose of a railroad, and that said appropriation was made in due form of law, under and by virtue of the provisions of the act passed “in or about February, 1849,” authorizing the city of Cleveland to subscribe to the capital stock of the Cleveland and' Pittsburg Railroad Company, and for other purposes; that in pursuance of the provisions of said act, three appraisers were duly appointed and qualified, who returned according to law their assessment of damages, and award in the premises, which was duly filed in the office of the clerk of the court of common pleas of said county, on or about the 27th day of December, 1849; and at the .June term, 1850, there being no exceptions filed thereto by said plaintiff, said award, and the proceedings in the premises were ordered to be entered of ^record, and that the same were accordingly recorded, to which record inference is made. And the defendants say that they took possession of the land so appropriated by virtue of the proceedings aforesaid, and that the same remain unreversed and in full force, and that they did no damage to the plaintiff’s other lands not appropriated; and that their possession is not wrongful. The defendants also say, in their answer, that the plaintiff offered to convey said lands to them in fee simple, at the price of forty-five dollars, but that they declined purchasing the same, and that they proceeded to take possession, and to construct their road upon said land with the knowledge and consent of said plaintiff, and have continued to run their trains and use said road over said premises ever since that time, doing no unnecessary injury thereto, and being confined in their operations to the lands so appropriated. The defendants, in their answer, also aver that the plaintiff had, previous to the commencement of this suit, renewed his juoposition to sell and convey in fee simple, at the price of forty-five dollars, and had executed and delivered, as an -escrow, to a mutual friend, a deed of said land, to be delivered to ■the said company upon their paying said sum of forty-five dollars, but that, before the company had time to receive the notice and pay the money, the plaintiff withdrew said deed and retracted his proposition. The defendants do not in their answer aver any payment of the amount of the award.
    On the trial of the case in the common pleas, the plaintiff recovered judgment for one hundred dollars ; from which the defendants .appealed to the district court.
    At the May term, 1856, of the district court, the case coming on for hearing, and no one appearing for the defendants, a jury was -called, and the case being submitted to them upon the issues joined, ■¡returned a verdict for the plaintiff, assessing his damages at one hundred and fifty ’dollars, for which judgment was rendered by the court, and for costs, against the company.
    At a subsequent day during the same term, the defendants’ attorney appeared and filed his motion to set aside said judgment: 1. Eor irregularity in the proceedings off*the court in not deciding the issues of law arising upon the answer ; 2. For neglect of the plaintiff’s attorney to inform the court of a mutual agreement by counsel in relation to the case, and unavoidable absence of counsel for defendants, as shown by his accompanying affidavit therewith filed.
    The defendants’ counsel also, at the same time, filed his motion in arrest of judgment for cause: 1. That the judgment is against the law ; 2. That the facts set forth in the petition show that the action could not be maintained against the 'defendants.
    A motion for a new trial for the same causes stated in the foregoing motions was also filed on behalf of defendants.
    These several motions were overruled by the court, and to the overruling of which the defendants’ counsel took no exceptions.
    Upon the record showing these facts, this petition in error is filed to procure the reversal of the judgment of the district court.
    The following are the errors assigned:
    1. The facts set forth in the petition of the said plaintiff show that the plaintiff could not maintain an action at common law for any of the injuries in said petition alleged.
    2. The court submitted the case to the jury in the absence and without the consent of the defendants and their counsel, without first determining the issue of law raised by the answer.
    3. The court overruled the motion of the defendants for a new trial upon the facts set forth in the affidavit of the counsel of defendants.
    *4. The court overruled the motion of defendants in arrest of judgment.
    5. The court rendered judgment in favor of the plaintiff and against the defendants when, by the law of the 'land, the court should have rendered judgment against the plaintiff, and in favor of the defendants.
    
      W. 8. G. Otis, for plaintiff in error.
    
      Vance and Belden. for defendants in error.
   SuTLnnr, J.

It is provided by section 263 of the code, that “ issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference bo ordered as hereinafter provided.” *

The defendants saw fit to answer instead of demur to the petition. There was, therefore, no question of law raised to the court. No replication was then required to the matters set forth in the answer as a defense, but the same were to be regarded as denied by tho plaintiff. No one was present to waive a jury on the part of the defendants, nor was a jury waived by the plaintiff; the issues of fact raised by the answer, the action being for the recovery of money, could, therefore, only be tried by a jury; and this disposes-of the second assignment of error.

Again, it is provided by section 297 of the code, that a new trial of an issue of fact may be granted in the same court after a verdict by a jury, for certain causes therein expressed; but those causes, or some one of them, must be made to appear, in order to entitle the-party to such new trial. It is a sufficient answer to tho third assignment of error, that no bill of exceptions was taken, showing wliat proof was made on the hearing of the motion for a now trial; nor does it appear that the defendants, or their counsel, even excepted to the overruling of the motion.

As to the fourth assignment, it appears, from the ^record,, that there was nothing lost to the defendants by the motion in arrest being overruled, inasmuch as the motion, which could only have been made to sot aside the verdict, was not filed until some time after the judgment had been rendered.

There remains to be considered, then, only the question raised by the first and fifth assignments of error—the sufficiency of the matters set forth in the petition to sustain the judgment. The simple question presented for our consideration may therefore be answered by ascertaining whether the verdict would, at common law, have been subject to a motion in arrest of judgment; or, under tho provisions of our code, to bo set aside or vacated for being “ contrary to law,” before the rendition of judgment.

It is required by the provisions of our code (section 85), that the petition contain a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition.. And a want of a statement of facts sufficient to constitute a cause of action is made a cause of demurrer. But it is not every defect in the statement of facts which renders illegal the judgment rendered, or would render a verdict in favor of the plaintiff “ contrary to law,” and so, under the provision of the code (section 297), constitute cause for setting it aside, and thus arresting the judgment. Where only the statement of the plaintiff’s cause of action is inaccurate or defective, the defect was a,t common law cured by a general verdict in his favor; for all circumstances in such case necessary to make the title thus imperfectly stated complete in form and substance, requiring proof on the trial, are, after verdict, presumed to have been proved. Thus, in an action of trover, where no value oí the chattel is mentioned in the declaration, upon the return of a verdict for damages in favor of the plaintiff, such verdict has always-been held good, and judgment rendered thereon has been sustained. But where the omission is such in the petition, that no cause of action is in fact stated, such omission can not be cured by any legal intendment after verdict. *This necessarily follows from the fact that evidence being necessarily confined to the proof of the-issue, and no cause of action being stated, no cause can be presumed to have been proved in the ease.

What, then, is the cause of action stated in the petition? It is. that the defendants, in locating, laying out, and constructing their railroad through the lands owned by plaintiff, without his consent or approbation, appropriated about two acres of said laud “ in a diagonal manner, so as to greatly injure said premises,” and thereby causing incidental injury to the plaintiff. And this is the whole gravamen of the action. It is not averred that the defendants did any unnecessary injury; nor is it averred that they did not strictly conform to the provisions of the statute in making said appropriation. The statute authorized railroad companies'to appropriate-lands for the purpose of constructing their roads, and jmovidod, at the same time, for a just compensation to the owner. An appropriation was not therefore unlawful, and the facts stated, as a cause of action, do not constitute a trespass. There is no averment that the defendants failed to pay the amount awarded for said’lauds, or that the plaintiff has failed to receive the legal compensation to which entitled, for all damages sustained by reason of such appropriation of his lands.

The balance of the cases decided and to be decided at December term, I860, will be published in Volume XI.

The judgment of the district court must therefore be reversed, and the cause remanded.

Judgment accordingly.

Brinkerhoee, C. J., and Scott, Peck, and Gholson, JJ., con-: curred.  