PIaymond, President.
Petitioner, the Chesapeake and Ohio Railroad Company, on the 25th day of October,"1870, filed its petition in the Circuit Court of Kanawha county, representing that the line of its road had been located by its engineers through and over certain lands therein mentioned and described, giving the boundaries of the land sur[227]*227veyed for its railroad. And in its petition tRe company represented that it proposed to take for the purposes of its road the lands embraced within the boundaries named, under, and by virtue of its acts of incorporation. And the company in its petition represents that Amelia "W. Bradford has a life estate in the lands within the boundaries named, and that Cora P., Lillian C., and William A. Bradford, Jr., all children of the said Amelia "W. Bradford, and infants under the age of twenty-one years, are the owners of the remainder in the said lands, and as such, are entitled to compensation from it for taking the laúds and constructing and using its railroad through the same. The company states in its petition that Amelia W. Bradford, as tenant for life of said lands, has conveyed her life interest therein to it, by deed..duly executed and recorded; and that Amelia W. Bradford was the guardian of her said infant children, duly and regularly appointed. And the company in and by its petition prayed the Circuit Court to appoint five' disinterested freeholders, commissioners to ascertain what would be a just compensation to the persons entitled thereto, for the real estate so proposed to be taken, and for such other and further orders and proceedings as should be necessary to entitle it to the lands.
It is agreed by the counsel in the, cause, by a writing signed and filed by them with the papers, that Amelia ~W. Bradford, guardian of the infants, and the infant Defendants, had legal notice-of the filing of the petition in the Court below, and that said Amelia W. Bradford is the legal guardian of the infants. After the filing of the petition and legal service of notice on the guardian and infants according to law in such case, and at a Cri-cuit Court of the county of Kanawha, held on the 26th of October, 1870, the Court determined that the company had the lawful right to take the lands for the purposes stated in its petition. And thereupon, five commissioners were chosen and appointed in the mode pre[228]*228scribed by law, to ascertain a just compensation for taking tbe lands described in tbe petition, and to whom tbe same should be paid; and that they report their proceedings under the order of their appointment, to tbe Court as soon as convenient. Afterwards, on the 8th day of July, 1871, the Court, in consequence of the commissioners theretofore appointed not being able to agree, caused to be chosen and appointed, five other commissioners to act in lieu of the former commissioners, (who were removed,) with the same powers and duties, and for the same purposes as directed by the former order. Afterwards, on the 25th day of November, 1871, by consent of the parties, the order entered in the cause on the 8th of July was set aside by the Court, and five other commissioners were chosen and appointed for the purposes stated in the petition, and who were ordered by the Court to ascertain a just compensation for taking the lauds described in the petition, and to whom the same should be paid; and that they make report of their proceedings under the order of their appointment, to the Court as soon as convenient. The commissioners last appointed acted on the 3d day of April, 1872, and in their report, of that date signed by three of them, they say “ we find that Amelia W. Bradford has conveyed her life estate in the real estate to the applicants, and are of the opinion that sixteen hundred dollars will be a just compensation for the interest of Cora P., Lillian C., and ¥m. A. Bradford, infant children of said Amelia, in the real estate hereinbefore described, which is proposed to be taken by the applicant, as well as for damage to the interest of said infants in the residue of the real estate of the Defendants, beyond the peculiar benefits that will be derived by the interest of said infants in respect to such residue from the work to be constructed.” Afterwards, on the 8th day of July, 1872, the company, by its attorneys, asked leave of the Court to discontinue the proceedings ; and, on motion of the Defendants, time was granted them to show cause [229]*229against the company’s motion ; and at the same time, on motion of Defendants, the report of the commissioners before referred to was ordered to be filed. The Court afterwards, on the same day, after hearing the evidence as veil for the motion of the company to discontinue their proceedings, as against the motion, overruled the motion. And thereupon the company tendered three several bills ■of exceptions to the opinion of the court in overruling its said motion which vere duly signed and made a part of the record. The company also filed three exceptions to the report of the Commissioners vhich appear at large in bill of exceptions dSTo. 2; and are as follows, to wit:
“1st. Because the Commissioners erred in awarding the entire damages assessed in this case to the children of Amelia Bradford, when the interest of saidjchildren in the land mentioned in the petition is contingent upon their surviving the said Amelia W. Bradford, which event may not happen.
2nd. Because the sum awarded is exorbitant and unconscionable.
3rd. Because the Commissioners did not ascertain the value of the land taken and damage to the residue of the tract, but merely ascertained the interest of the children of Amelia W. Bradford in such land damages. It was proven to the court that all the claim, right or title, of Amelia W. Bradford, and her children, in and to the lands proposed to be taken by the Company; for the purposes in its petition stated, was, and is conferred, and claimed from and' under the will of Luke Wilcox, deceased, and the clause thereof which is in these words, to wit: 2nd. I give and bequeath unto my daughter Amelia, during natural life, and after her death, to such children or child as she may leave, my interest in the land conveyed to me by Jas. Hewitt, by deed bearing date on the 16th day of September, 1833, and of record in the clerk’s office, lying above Lens Creek; also, the interest conveyed to me by James Armstrong in said lands, by deed of record in the [230]*230clerk’s office, together with the appurtenances thereunto belonging, excepting therefrom a burying ground, in the held, of fifty feet square enclosure. Also, so much of my the estate of Leonard Morris, deceased, conveyed to me by James Jewitt, and of record in the clerk’s office. All of that part of my interest that is in the old field or River survey, and all my interest that is on the back land above Lens Creek, and to the left hand fork on the same. Also the following slaves, and personal property, to wit: Fifteen negro slaves, named Charles, Charlotte, and her children, Judy, Nancy, Alfred, Dan, Julia, Ann, Harriet, and "William and Step-toe Dennis, Kate, Jasper, and Mark, together with the increase of the female slaves. Also all my household and kitchen furniture, of every kind whatsoever; also, all the books contained in my library. If my daughter, Amelia, shall depart this life without children or child, then, in that event she shall have the right to dispose of the aforesaid property as she may deem fit or best.”
Amelia W. Bradford, the mother of the infants, is still living, and if the infants are entitled to damages for the land proposed to bo taken, they are so entitled, by reason alone of the clause of the will above quoted, as fully appears from the proof in the case.
The court overruled the exceptions taken to the report of the commissioners, by the Company, and rendered judgment upon the report in favor of the infants, Cora P. Bradford, Lillian C. Bradford, and "William A. Bradford, against the Company for the sum of $1600, the damages assessed by the Commissioners with legal interest, from the 3rd day of April, 1872, and-their costs by* them about their defence expended, including a docket fee of $20, as allowed by law.
From this judgment and the order of the court overruling the Company’s motion to discontinue proceedings, the Company has appealed.
The 2nd Section of Chapter 42, of the Code, provides,, that, “ In any case in which real estate may lawfully be [231]*231taken for a purpose of public utility, application may be made to tbe Circuit Court of the County in which the estate is situated, to appoint'Commissioners to ascertain 'a just compensation to the owners of the estate proposed to be taken.”
The 4th section of same chapter provides that, “That the proceedings may be instituted jointly against all the owners of the real estate proposed to be taken.”
The 6th section provides that of the application ten days notice shall be served on the owners, claimants? and persons holding liens, and that thé notice may be given either before the application for condemnation is presented to the court, or afterwards. The 7th section provides, “If an owner or person holding such lien or claim be under disability, and there be a guardian or committee for .him, such guardian or committee shall be notified.” The 10 th section provides that “Upon its appearing that the proper notice has been given, and that the case is one in which the applicant has lawful right to take private property for the purposes stated in the application upon just compensation, five disinterested freeholders, shall be appointed commissioners to ascertain what will be a just compensation to the person entitled thereto for each parcel of real estate proposed to be taken.”
By reason of a special act of the Legislature applicable to this Company three of the Commissioners signing the report is sufficient as was done in this case. The 14th section provides what the commissioners shall do, and prescribes the plan of their report, a part of which is “we have viewed the real estate owned by-mentioned in the said application, and are of opinion that-will be a just compensation for so much of the said real estate as is proposed] to be taken by the said applicant, as well as for damage to the residue of the said real estate beyond the peculiar benefits which will be derived in respectto such residue from the work to be constructed.” The 17th [232]*232Section provides tkat wken tke report kas keen returned unless good cause be skown against it, or it be defective or erroneous on its face, tke court skall confirm tke same, and-order it tobe recorded on tke ckancery order book. m, 7 , . . . Ike 18th section provides that at any time within twelve months after tke report has been confirmed, and ordered to be recorded tke sum so ascertained with legal interest thereon from tke date of tke report until payment may be paid by tke applicant to tke persons entitled thereto, or into court, and tkat upon such payment, the title to tkat ' part of tke land so paid for skall be absolutely vested in fee simple, except tkat in case of a turnpike or other road, (not including, however,; a railroad,) the right of way only shall be vested. Tke 19th section provides. “If good cause be skown against tke report, or if it be defective, or erroneous on its face, the court, as may seem to be proper, may set it aside or recommit it, &c.” The 20th section provides, that “After such report has once been, made, though it be set aside, recommitted or new Commissioners appointed, the applicant, upon paying into court tke sum ascertained by suck report, with legal interest thereon' from tke date of tke report, until payment may,, notwithstanding the pendency of further proceedings, enter upon, take and use for tke purpose specified in tke application, that part of tke land in respect to which suck payment is made.” Section 21 provides, tkat “Wken after suck payment into Court as is mentioned in tke preceding section, a subsequent report is made, which is confirmed, and ordered to be recorded, if tke sum ascertained by suck subsequent report exceed what was so paid, and tke applicant fail to pay the same, judgment skall be given against him for tke amount _ of suck excess with legal interest thereon from tke date of suck subsequent report until payment; but if what was so paid exceed tke sum ascertained by suck subsequent report, tke excess skall be paid back to tke applicant, out of tke fund in Court, or by the person to whom it shall have [233]*233been paid.-” Section 22nd provides that, “When j udgment is rendered against the applicant, pursuant to the last section, for any excess ascertained by such subsequent report with interest, the applicant shall, thereafter, have no right to the possession of the land until the judgment is satisfied. But from the time of such satisfaction by the payment of the money to the persons entitled thereto, or into Court; or from the time of the confirmation of such subsequent report, if no additional compensation be thereby ascertained, the title to that part of the land for which such compensation has been made, shall be absolutely vested in the applicant in fee simple, except, as before excepted, in case of a turnpike or other road.” The 23d section provides that, to enable the Court to dispose properly of any money so paid into Court it may have inquiry made by a Commissioner to ascertain what persons are entitled thereto, and in what proportions, and may direct publication to be made requiring all to appear before the Commissioner, that their respective claims may be passed upon. Upon report of the Commissioner or from the evidence before it without such report, the Court shall make such disposition of the money, as may seem to it right. It is further provided that in cases not otherwise, provided for, the applicant shall pay the costs of the proceedings, and a reasonable docket fee to be fixed by-the Court, but not to exceed $20, may be allowed to any party, if it seems proper to the Court.
I have stated with particularity the substance, and mostly the language of the chapter of the Code, touching this case, to the end that my vieAvs as hereafter stated may be moi’e clearly appreciated and understood.
It is a fundamental principle contained in the Constitution of the United States, and the Constitution and Baws of this State that private property, shall not be taken for public use without just compensation. And with us it cannot be taken against the will of the oAvner, unless such taking has been authorized by laiv. The [234]*234justification, for taking private property from its owners for public use, is that, the public interest, and pub-lie good are paramount in magnitude, and importance †0 prj;vate interest, and, therefore, private interest must yield-to that of the public. Still the just respect of these who constitute the public, for private right, and private interest, has hitherto been so strong, as to induce' the Constitutional'- provisions that "private property shall not be taken for public use without just compensation.” This is a wise and salutary provision. It should bo strictly adhered to and not suffered to be evaded or perverted. It will be seen by careful attention to the sections of law which I have quoted, that it is not the mere ascertainment of the value of the property proposed to be taken according to the forms of law, that authorizes the invasion or taking of the property of the private citizen by a corporation organized for purposes of internal improvement, nor is it the confirmation of the report of the Commissioners by the Court, nor both together. It is the payment of the value of the property taken, ascertained in the manner provided by law. The mode of ascertaining the value of the property is prescribed by law to enable the applicant to take the property from the Owner, if he desires so to do by making the compensation within twelve months after lhe report of ‘Commissioners has been confirmed. If he. fails to pay the ascertained value within that period it is. claimed with plausibility that he no longer has the privilege of invading or taking the property by paying the ascertained value. If after the expiration of twelve months the applicant still desires the property, it is. claimed and has been held by some Courts, that he can not take it or acquire right to it, against the will of the owner without again having its value ascertained asbe-fore. It is not intended by the law that because the applicant has the value of the property ascertained, and the report of the Commissioners affirmed by the Court, that the applicant shall therefore pay the value, and become in-[235]*235vested with the fee simple right to the property. When the value of the property is . ascertained he may find that he does not need it; that it is not necessary to take it from the owner. But it is intended that the applicant shall not be in anywise authorized to take or injure the property, unless the ascertained value of the property is paid within the time prescribed by law. And if the applicant after the value is ascertained at any time after the' confirmation, and recordation of the report, takes or injures the property without first paying the ascertained value, he is a trespasser, just as though he had never caused the value of the property to be ascertained, and is liable to be treated, sued and mulcted in damages therefor, as any other trespasser. It is, therefore, evident that it is not the meaning or intention of the law, that a personal judgment shall or may be given against the applicant for the ascertained value of the property, except when he pays into Court the amount ascertained by the report of Commissioners^, anda subsequent report of Commissioners is made, (which; is confirmed and ordered to be recorded,) and which ascertains damages in excess of the amount before ascertained. In this case, as well as all others, the applicant may at any time within twelve months after the report has been confirmed and recorded, pay the sum ascertained with its legal interest from the date of the report until the payment, to the persons entitled thereto, or into Court, and upon such payment the title vests in fee simple in the applicant. Still, in this case, the Court rendered an absolute judgment against the applicant at the time of confirming the report for the amount of damages, as well as, the costs, and from anything that, appears an execution, could at any time issue after the judgment for the whole amount thereof, against the applicant, though the twelve months may not have expired. If the applicant pays the ascertained value into Court after the return and confirmation of the report, such payment and the re[236]*236corded proceedings, are his justification for taking the property, because altogether they invest him with the fee simple title to the property, with the exceptions mentioned in the laws. Without the payment ofithe ascertained value within the time specified, the applicant has no authority or license to take or injure the property more than any other person, and if he does, he is a wrong doer and is liable to be treated as such in every respect.
I very much doubt, whether it is competent, under the law, for the Commissioners to ascertain an amount less than the full value of the whole title to the land proposed to be taken, though I do not determine that qnestion as I deem it unnecessary. The Commissioners in ascertaining the compensation to be made to Cora P. Lillian C. and William A. Bradford, evidently acted upon the supposition that they were the owners of a vested remainder in fee simple in the lands after the determination of the life estate of their mother, subject to no limitation or contingency, and ascertained and fixed the compensation accordingly. The Circuit Court in confirming the report was, doubtless impressed with that opinion. A careful examination of the clause of the will of Wilcox, which I have quoted, must dispel that view as being erroneous. The estate conferred by the will, exclusive of the vested life estate, I think, amounts to a contingent remainder. It certainly is not a vested remainder without limitation or contingency. If the children to whom the compensation is made, by the report, should suWve their mother, and no other child be born before the mother’s death, then they become the owners of the property, and would be entitled to the whole of the compensation given, but they may die before their mother, and another child may be born and survive the mother, or the mother may survive all her children. If this be the correct view then it would be wrong to pay the ascertained compensation to the three children named, for another person or persons may be entitled [237]*237to demand and receive it. In proceedings to take tke property of tke owner tke Court must pursue tke Statute conferring tke jurisdiction, in its orders and judgments. Tke wkole autkority of tke Court in suck case is conferred by tke Statute. Tke Counsel for tke Company in preparing tke petition, wkick was filed, evidently, at tke moment, misapprekended tke ckaracter and extent of tke estate, of tke tkree ckildren of Mrs. Bradford. But, afterwards, discovered tke error, and sougkt to correct it as far as possible, by moving tke Court to dismiss tke proceedings. If tke Court kad dismissed tke proceedings wken tke motion was made, \ it skould liave done so at tke cost of tke Company. As ’ tke proceedings were commenced in apparant error and misapprekension I tkink tke Circuit Court skould not liave confirmed tke report of tke Commissioners, and erred in not dismissing tke proceedings at tke cost of tke applicant.
Tor these reasons tke judgment of tke Court below against tke Appellant rendered on tke 15th day of July, 1872, and tke order of tke same Court made on tke I8h of July 1872 overruling the motion of tke Appellant to discontinue,tke proceedings must be reversed with costs to tke Appellant in this Court. And this Court proceeding to give suck judgment as the Court below skould have given, tke report of tke Commissioners filed in tke Court below must be set aside and tke proceedings dismissed, and judgment against tke Appellant in favor of tke Appellees for their costs, including a docket fee of $20, up to, and including tke 8th day of July, 1872.
Patjll, Moore and Hoffman, Judges, concur in the foregoing opinion.