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strict compliance with the provisions of the statute giving the authority and prescribing the course of proceeding. Hampden Paint, etc., Co., v. Springfield, etc., R. Co., 124 Mass. 118. “The universal rule laid down by the books is that, where property is taken for public uses by the exercise of the right of eminent domain, the compensation must be fixed at the date of taking the property ; that is, the time the public make the appropriation. That this means the time of taking and appropriating the property by appropriate legal proceedings, and not the time of some previous wrongful and tortious entry, necessarily follows from the constitutional provision which requires compensation first made. Until that time the property still belongs to the original owner. The fact that a railroad company has, in advance of proper condemnation proceedings, committed a trespass, and wrongfully taken possession of land, gives it no right to insist that such proceedings, subsequently instituted, shall relate back to the date of the trespass." "Blue Earth Co. v.
v St. Paul & S. C. R. Co., 28 Minn. 503, 10 Am. & Eng. R. Cas. 209. See, also, Isom v. Mississippi Cent. R. Co., 36 Miss. 300; Dearborn v. Boston, C. & M. R. Co., 24 N. H. 179; South Park v. Dunlevy,91 Ill. 49: Missouri Pac. R. Co.v. Hays, 15 Neb. 224, 14 Am. & Eng. R. Cas. 177; St. Joseph & D. C. R. v. Orr, 8 Kan. 419; Driver v. Western Union R. Co., 32 Wis. 569; Cooley, Const. Lim. 694; California S. R. Co. v. Colton Land & Water Co., (Cal.), 14 Am. & Eng. R. Cas. 194. In the case of Cook v. South Park, 61 Ill. 121, the court, in considering the application of the word “ taken," as used in the constitution of Illinois, which is similar to that of this state, uses this language: "The taking of the land, the appropriation of it, prior to the performance of the prerequisite of the statute, would be utterly inconsistent with the obvious meaning of the words of the law. If the land cannot be entered upon or used before payment of compensation, it cannot, with any propriety of language, or with reference to the common signification of the term, be said to be taken before payment." It is very clear from the terms of the constitution, , from reason and authority, that no appropriation of the land or permanent right to its use could be effected, except either by condemnation, or contract, unless a simple license or permission to enter would be sufficient to give that right.
Upon hearing exceptions to the report of the commissioners, plaintiff was permitted, very properly, to show all the facts and circumstances under which the entry on the land was made. There is nothing in the evidence tending, in the remotest degree, to prove that plaintiff entered upon the land in the fall of 1886, under any agreement with the owners that
the right to the easement should vest at that date, or that
the payment of compensation should be postponed to a subsequent day. There was no agreement
a land owner to of any kind shown. Then plaintiff acquired no object to en.
right to the land in 1886 under any contract. The
evidence did not show that the owners of the land were given permission to enter thereon. One of plaintiff's witnesses testified that one Parker gave permission to plaintiff to proceed with the work on the land, but it was not shown that he was interested in the land, or that he had authority from those interested to give their consent. It was sufficiently shown that the owners knew of the entry, and made no active opposition thereto. All plaintiff then has upon which to base its claim of right in the fall of 1886 was the physical entry on the land without opposition or expressed objection from the owners. What right did defendant waive? It is true that defendant could have enjoined the entry, or prevented it by physical force; but was it necessary to do this in order to preserve its proprietary rights in his property, or its right to compensation? It seems to me the only right waived' was the right to prevent, by legal or physical means, the entry on its land before payment of damages. We think all the authorities cited by appellant bear out this idea, and go no further. Provolt v. Chicago, R. I. & P. R. Co., 57 Mo. 259; Ring v. Mississippi Riv. Bridge Co., Id. 497; Mueller v. St. Louis & I. M. R. Co., 31 Mo. 262; Soulard v. City of St. Louis, 36 Mo.552; Baker v. Chicago, R. I. & P.R. Co., 57 Mo. 274; Allen v. Wabash, St. L. & P. R. Co., 84 Mo. 657. After the public has acquired rights in a road, already constructed and in operation, a different question would arise as to the extent and effect of the waiver of the landowner. Often the corporation secures advantages incidentally, by invoking the rights of the public, as was done in some of the cases cited. None of the well considered cases of any court hold that the mere entry cn land, and the construction of the road, under an implied license of the owner, would estop the owner from thereafter asserting all the rights and remedies guarantied him by the constitution. A different rule would be wholly inconsistent with principles of right and justice. The corporation could abandon its location even after damages were assessed. Rev. St. 1879, $ 894. There would not exist that mutuality which would give the landowner a right to damages regardless of the right of future abandonment by the company. The statute only gives to the corporation the right to initiate the proceedings to condemn. If circumstances are such as to make a postponement necessary or desirable, and the land owner con
sents to a previous entry, there can be no injustice in fixing the compensation at the date of the actual appropriation, the date contemplated by the constitution as the time for making compensation. Such silence and inaction on the part of de. fendant, as is shown in this case, may estop it to claim the improvements put upon the land, or possibly to reclaim the land itself in lieu of damages; but there could be no estoppel to claim its proprietary rights to the land, and its constitutional rights to compensation therefor before they could be divested. The land was not taken, within the meaning of the constitution, until the money was paid into court, and the compensation was properly estimated upon the value of the land at the time the assessment was made by the commissioners. The question does not arise, in this case, whether plaintiff could deny a taking at any time between its entry and the assessment, and is not considered or determined. The court committed no error, then, in the declaration of law given, fixing the time of assessing damages as the time at which the value of the land should be reckoned ; and plaintiff was not injured by the action of the court in striking out its amended petition in view of our conclusions as to the proper date for fixing the amount of compensation.
2. It would have been proper for the court to have instructed the commissioners as to their duty in assessing the damages, and as to the proper rules by which they should have been governed in making their esti
Instructions mate. The abstracts of record furnished by appellant fails to show that any instructions were asked. Doubtless they would have been given had either party made a request for them. The court, in civil cases, is not required to give instructions, whether asked or not, as is the rule in criminal cases. It was not shown upon hearing the exceptions that the commissioners committed any error in making their estimates ; on the contrary, it appeared that only the value of the land actually taken was allowed as damages, and that at the lowest estimate placed upon it.
3. It is objected that the report of the commissioners contains no description of the premises condemned. The description describes the tract of land through which
Description the road runs, and gives the following description
of premises. of the part appropriated: "A strip, belt, or piece of land one hundred feet in width, extending from the east side to the west side, over and across said land, through the center of said strip, belt, or piece of land the center line of the railroad of the Chicago, Milwaukee & St. Paul Railway as now surveyed and located, so as to leave one-half in width on each side of said center line.” The report also shows that a
Efforts of parties to agree.
plat of the road, showing its location through the land, was filed with the petition. The evidence shows that the road had been built across the land before the report was made. This description is much more specific than the one approved by this court in the case of Kansas City, C. & S. R. Co.v. Story, 96 Mo. 620, 36 Am. & Eng. R. Cas. 584. The road it. self is a sufficiently designated monument to make the de. scription sufficiently specific. Cory v. Chicago, B. & K. C. R. Co., 100 Mo. 288, 44 Am. & Eng. R. Cas. 183.
4. The next objection is that the court acquired “no juris. diction, for the reason that no efforts at agreement were
made by the parties before the condemnation proceedings were commenced.” The petition states that such efforts were made, and no issue was ten
dered on the question by defendant. It must be taken that the allegation of the petition was true. It was not necessary that this averment should be sustained by oral evidence. Cory v. Chicago, B. & K. C. R. Co., 100 Mo. 288, 44 Am. & Eng. R. Cas. 183.
5. The only remaining complaint of appellant that need be noticed is that he should have been awarded a jury trial to
determine the compensation to which defendant Waiver of ja
was entitled. The constitution certainly provides ry trial.
that the right of trial by jury shall be held invio. late in this class of cases. If either party had demanded a jury trial, it would have been error for the court to have de. nied the right. The constitution, in order to insure a speedy assessment of damages, and thus avoid delays in public enterprises, provides that such damages may be assessed, in the first instance, by a board of commissioners. The assessment made by this board is final, unless questioned by one party or the other. Either party has the right to question the report by exceptions, or a demand for a jury, or both. A demand for a jury, by force of the constitution, avoids the report of the commissioners, and secures a trial by jury. Without such demand the jury trial will be waived. There is no doubt the constitutional right of trial by jury may be waived. Kansas City, C. & S. R. Co. 7'. Story, 96 Mo. 619, 36 Am. & Eng. R. Cas. 584; Merrill v. St. Louis, 83 Mo. 244; Jones 1. St. Joseph, F. & M. Ins. Co., 55 Mo. 342. No errors appearing in the proceedings of the circuit court, the judgment is affirmed. All the judges of this division concur.
Eminent Domain-Time as to which Damages are to be computed-Rule where There has been Wrongful Entry. - There is considerable conflict among the cases as to the time at which damages are to be computed where property has been taken in the exercise of the right of eminent domain. See title “ Eminent Domain," 6 Am. & Eng. Ency. Law, p. 564; See also California So. R: Co.v. Colton L. & A. Co. (Cal.), 14 Am. & Eng. R. Cas. 194; Missouri Pac. R. Co. v. Hays (Neb.), 14 Id. 177; Jones v. N. 0. & S. R. Co. (Ala.), 14 ld. 217 ; In re Union Depot S. R. & T. Co., 14 Id. 233; West v. Milwaukee, L. S. & W. R. Co., 10 Id. 415. But where there has been a wrongful entry the rule is undoubtedly as it is laid down in the principal case, and the compensation is to be estimated as of the time of the award of the commissioners or the time of the trialas distinguished from the time of such wrongful entry. Blue Earth Co. v. St. Paul & S. C. R. Co., 28 Minn. 503, 10 Am. & Eng. R. Cas. 209.
In Texas Western R. Co. v. Cave, (Tex., March 6, 1891,) 15 S. W. Rep. 786, the same rule was followed and it was held that the value of the land taken, and the injury to the land not taken, are to be assessed as of the date of the condemnation, and r.ot as of the time of original wrongful entry by the railroad company. The court said : “ The damages awarded by the judgment are all prospective in character, the price for which the future burden is placed on the land ; and a holding that a past unlawful occupancy, which gave no right to continue to occupy, would cut off the right of a landowner to damages based on every element entering into the measure of compensation for taking of land for a public use, could find no justification in principle or authority. Such a holding could stand only on the theory that the wrongful possessor, who thereby has acquired no property in the thing possessed, should for his wrong doing be placed in a more favorable position when he seeks to recover the right to possess than would the person who seeks lawfully to acquire the right to possess and use before he takes possession. The law offers no such rewards for wrong doing. For any injury done to plaintiff's land or use of it, occurring more than two years before this action was brought, he was doubtless barred. The court found that the tract of land through which the railway runs was worth, when the road was first constructed over it, from $50 to $100 per acre, but that at the time of trial it would be worth $1,000 per acre if the railway was not on it or to continue on it, and it is urged that “the judgment of the court is contrary to law and evidence, in this: That it finds for the plaintiff, E. W. Cave, against the defendant, the Texas Western Railway Company, and, in estimating the damages, takes as the basis of such estimate the value of the land at the time of the trial, and not at the time when the road was built on the property, and the cause of action accrued, and the strip of land taken and appropriated by the defendant company. At the time the railway was constructed on plaintiff's land the law furnished a method whereby the railway company might have had condemned for its use so much of the land as was necessary, and had it done so plaintiff's damages would have been assessed with reference to the value of the land at that time, but this it did not and now seeks to do when the land has become more valuable than it formerly was, and the price it must now pay is the sum which the value of the land at time of condemnation makes necessary to compensate the owner for the taking. The wrongful possession was not a 'taking, within the meaning of the laws which prohibit the appropriation of private property to a public use without due compensation to its owner. If the railway company desired to condemn land worth only $50 or $100 per acre, it should have caused condemnation to be made when that was its value; and, not having done so, it has no just cause to complain that the law gives to the landowner damages based on the value of the land when it did have condemnation made. The unauthorized construction of the railway on plaintiff's land gave defendant no right in or to the property, and its value at the time such possession began cannot affect the question of damages, which must be measured by the value of the land at the time of condemnation and consequent injury to the owner by the taking; for, although increased in value while defendant was wrongfully
37 A. & E. R. Cas.-9