Beck v. Louisville, New Orleans & Texas Railroad

65 Miss. 172

• Court: Mississippi Supreme Court
• Decided: October 15, 1887
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the Court.

The liability of the railroad company for entering upon the land and building its road, without acquiring title to the right of way, was to the then owner, Klein. As the land afterwards became the property of the' appellant, she is entitled to recover it, and the price of acquiring the right of way must be paid to her. Building the road without securing the right of way was a trespass; but, if Klein had expressly licensed it by parol, such license would have been revocable at pleasure, and when his right to the land ceased, any license by him ended by the will of the new owner. Damages for an unauthorized entry, and the price payable for the right of way secured according to law are •distinct things. The former, being an injury to the possession, accrues to the owner at the time. The latter must go to the owner at the time of fixing the price. It is true that the owner •at the time of the taking, ( according to law is meant,) is entitled to the damages (the price) assessed.

The proposition that a railroad company majr build upon the land of one who does not object, and thereby secure the right of way subject only to liability to his claim for damages, is not maintainable in this State, whatever may be held elsewhere. A parol license may shield from liability for trespass, but it is revocable, and when revoked is no longer a protection. The only way to secure the right of way is by grant from the owner or by condemnation proceedings, or by the statute of limitations. If the road is built without securing the right of way, the owner, who has not precluded himself, may recover damages for the trespass, and may recover the land occupied by ejectment, or may enjoin in chancery the use of his land. The fact that the charter authorizes either the land owner or the company to institute proceedings for condemnation does not in any manner abridge the rights of the land owner. He is not bound to take the initiative as to such proceedings. If a company desires the right of way, it must take steps to secure it. If it does not, it must answer for every invasion of the rights of the land owner.

Reversed and remanded.