Colorado Cent. R. v. Allen

13 Colo. 229

• Court: Supreme Court of Colorado
• Decided: September 15, 1889
• Status: Published

Opinions

Mr. Justice Elliott

delivered the opinion of the court.

In September, 1877, appellant filed in the county court its petition to condemn for railway purposes certain lands belonging to the defendant, Cora Allen, who was then a non-resident of the state. The petition contained no averment of the value of the lands sought to be taken, nor of the amount involved in the proceeding. An order of publication was made, notice was published, and the defendant Cora, not appearing, was defaulted. Commissioners were thereupon appointed, who reported the compensation for her said lands to be $180. This report was filed and approved October 9, 1877, and no further proceedings against the 'said Cora appear of record for more than six years.

In April, 1884, the petitioner filed its motion for an entry of the rule as to said- lands of the defendant Cora, alleging the payment of the $180, as aforesaid, for the ostensible purpose of becoming seized in fee of said lands according to the statute of eminent domain; but, without obtaining any ruling upon such motion, the petitioner on the same day filed its supplemental petition, referring to the original petition herein, and the proceedings had thereon, and asking that one James L. Allen, the husband of said Cora, might be summoned to show what right, title or interest he had, or claimed to have, in said lands. The said James, being summoned, demurred to said supplemental petition.

The said Cora also appeared, and moved the court to vacate and set aside all proceedings and orders, of every kind and nature whatsoever, taken or had in said cause or proceeding subsequent to the filing of the original petition, so far as the same related to her rights or property, on the ground that the court had never acquired jurisdiction over her person, and had never acquired jurisdiction of the subject-matter of said proceeding, and because the petition did not state facts sufficient to give said court jurisdiction. The demurrer does not appear to have been ruled on; but the motion was afterwai’ds, upon argument, sustained, and thereupon the petitioner filed its amended petition.

On motion of said defendants, certain portions of this amended petition were stricken out, and, petitioner having filed amendments thereto, the defendants again demurred; but this demurrer was not ruled on, and again petitioner, by leave of court, filed a second and further amended petition, which was in substance as follows:

. ‘1 And. now comes said plaintiff, and files its second and further amended petition herein, as to and concerning the lands herein condemned as the property of said Cora Allen, and alleges: (1) That the amount herein involved does not exceed the sum of $2,000. (2) That plaintiff is, and was during the year 1877, a domestic corporation authorized by law to construct and maintain a line of railroad passing through said county, and through or contiguous to the lands hereinafter mentioned. (3) That it is, and was at said time, necessary for plaintiff to take and occupy for railroad purposes certain lots or parcels of land [describing them as in the first petition], (4) That defendant Cora Allen was in the year 1877 the owner of record of said lots, and still claims to be such owner; and the said defendant James L. Allen is, and then was, the husband of said Cora, and for that reason is made a party hereto. (5) That the compensation to be paid by plaintiff to said defendant for the said taking and occupancy of said lots cannot be agreed upon by the parties interested. (6) That just previous to such taking and occupancy of said lots in 1877, an attempt was made by plaintiff to have such compensation assessed in this present action; and such proceedings were had, and such things done, that the sum of $180 was then, to wit, on or about the 10th day of October, 1877, paid by plaintiff to said defendant Cora Allen, and by her accepted as for and on account of such compensation. (7) That subsequently, to wit, on the 10th day of July, 1883, said defendant Cora Allen, by suit against this plaintiff by her then begun in another tribunal, claimed to be still the owner of said lots, and that previous to said 10th day of July this plaintiff had always claimed in good faith title to said lots (since said attempted ascertainment of compensation), and had occupied the same openly, continuously and uninterruptedly from said 10th day of October until said. 10th day of July, and during said period between said last-named dates had received no intimation nor notice of any adverse claim to or upon the same.

“Wherefore the plaintiff prays that the compensation to be paid the said defendant Cora Allen, for and on account of said taking and occupancy of said lots, this honorable court will cause to be assessed; and that plaintiff recover from said defendant said sum of $180, with interest, and other relief,” etc.

The defend ant moved to strike out of this last amended petition the sixth and seventh paragraphs thereof. The motion was sustained as to paragraph 7, but denied as to paragraph 6, and thereupon the cause was tried and disposed of as an ordinary proceeding for the condemnation of lands for public use. The jury found the value of the land to-be $2,000;'no additional damages or benefits. The verdict being sustained by the court, the appellant brings the case here on appeal, assigning as error certain rulings of the court before, during and after the trial.

Proceedings to condemn property for public use under the act of eminent domain are purely statutory, and the statute must be strictly pursued. The province of the court and jury are defined by the terms of the act. The court did not err in disregarding, or in treating as surplusage, petitioner’s prayer for judgment against defendant for the sum of $180. The only way petitioner could make the payment of that sum available under the renewed proceedings was by having it applied in substantial satisfaction, or by way of reduction of defendant’s compensation, in case it should be shown at the trial that defendant had received such sum in full, or on account of compensation for the lands taken as alleged in the amended complaint. Gen. Laws 1877, ch. 31; Mills, Em. Dom. §§ 87-90; Railroad Co. v. Jackson, 6 Colo. 340; Knoth v. Barclay, 8 Colo. 300.

The original petition did not contain any statement of the value of the property sought to be taken, nor any averment of the amount involved in the proceeding. There was no personal service of process upon the defendant Cora Allen, nor was her husband made a party until the proceedings were renewed in 1884, and then it was expressly alleged that James L. Allen was the husband of said Cora at the time of filing the original petition. On account of these defects the attempted condemnation proceedings were without force of themselves to pass to petitioner the defendant’s title to said property, or any right or interest which she may have had therein. Nevertheless, if, with notice of what the petitioner had sought or attempted to accomplish by said proceedings, she voluntarily accepted from the petitioner as compensation for her property a sum equal to the amount so awarded, she could not thereafter regain possession of the premises, nor secure further compensation for the taking. Neither did the court, by assuming, six years thereafter, to vacate the proceedings under the original petition, take away any right or interest which the petitioner may have acquired in or to said premises by virtue of its payment and defendant’s acceptance of such compensation therefor; for in such case, though the defendant was not bound by the proceedings, she would be bound by the payment and acceptance of the $180 for the land; and the minutes of such proceedings might, perhaps, under certain circumstances, be resorted to for the purpose of refreshing the recollection of witnesses as to the basis of such payment and acceptance. Mills, Em. Dom. § 329; Water Co. v. Middaugh, 12 Colo. 434.

The act of 1877, entitled “Eminent Domain” (sec. 2), inquires the husband to be joined as a party in proceedings thereunder when the wife’s lands are sought to be taken against her consent; hence it is argued that she, being a feme covert in respect to such proceedings, is not estopped like other persons by accepting the fruits of an invalid award. We need not determine the validity of this argument, since we do not consider that she was in any way bound by the proceedings or by anything she did by virtue of them.

The act of eminent domain in no way interferes with the wife’s power to voluntarily dispose of her property for public or private use the same as if she were sole. If the compensation to be paid for the lands sought to be appropriated or damaged for such use can be agreed upon, she may make a valid conveyance therefor independent of her husband, as well as if the conveyance were for any other purpose. It is only when the compensation cannot be agreed upon, and proceedings are instituted for the purpose of determining the same, that the statute requires the joining of the husband as a party. There is nothing in the act to indicate that a married woman may not, at any time before or after the commencement of condemnation proceedings, or during the progress thereof, whether the proceedings be defective or otherwise, ‘ ‘ bargain, sell and convey her' real property, and make any contract in reference to the same, as if she were sole.” This she was fully empowered to do by the act of February 12, 1814, in the language above quoted. Under the latter act it has been declared that " a married woman can do what she will with her own property as any other individual, sui juris, without reference to any restraints or disabilities of coverture. ” Wells v. Caywood, 3 Colo. 493.

The enfranchisement of married women brings to them corresponding responsibilities. Additional responsibility is the natural accompaniment of increased power and privilege. In the case before us, the proceedings culminating in the original award, being wholly invalid, were powerless to coerce the defendant in the slightest degree. Hence, if it should be shown that she thereafter voluntarily accepted compensation for her lands, she must be regarded as acting wholly independent of said proceedings in so doing; and, being emancipated from the thralldom of coverture in matters outside of such proceedings, she must be held bound by the consequences of such acceptance the same as any other individual. To the extent a married woman is sui juris she is subject to the law of estoppel. Water Co. v. Middaugh, supra; 2 Herm. Estop. § 1105.

Though the petitioner may have paid, and the defendant may have accepted, $180 for her lands, and thus the full and complete equitable title may have passed, yet she was not thereby divested of her legal title to the premises. To secure the legal title the petitioner might have resorted to an equitable action to compel defendant to convey the same, or, being in possession, might have relied upon such payment and acceptance with notice as an estoppel to' defeat any action defendant might bring to recover possession or further compensation. But it was also proper, under the act of eminent domain, for the petitioner to renew proceedings to acquire any title to the premises remaining in the defendant, or to extinguish any claim she might assert thereto. Section 6 of the act provides for such a contingency, and expressly authorizes proceedings to perfect the title in case the assessment shall fail or be deemed defective against any one who has title, claim or interest in the premises sought to be taken. Section 5 also provides for amendments to the petition or other papers whenever necessary to a fair tidal and final determination of the questions involved. Railroad Co. v. Strange, 63 Wis. 178.

By filing the amended petition on which the trial was had the petitioner must be held to have admitted that there was some title, interest or claim to the property remaining in the defendant Cora Allen. But it was at liberty to show, by proper pleadings and proof, if it could do so, that such title or claim was nothing more than the hare legal title, without any equity in the defendant, and that the damages were merely nominal, or that her estate was something, less than the full legal and equitable interest, on account of the payment and acceptance of the compensation therefor, as pleaded; but nothing in disparagement of defendant’s title, unless fairly within the scope of the pleadings, could be properly admitted in evidence. Mills, Em. Dom. § 160; Knoth v. Barclay, 8 Colo. 300; Railway Co. v. Haggart, 9 Colo. 347; Thurston v. Portland, 63 Me. 149; Miller v. Newark, 35 N. J. Law, 460.

Paragraphs 6 and 7 of said amended petition, though not in the most complete form, yet substantially set forth the defendant’s estate in said premises in such terms that the parties could and should have been allowed to show the very truth of the matter in relation to "the alleged payment and acceptance of the $180 as compensation for the premises, and so fairly try and finally determine the questions involved in the controversy, as provided in sections 5 and 6 of the act of eminent domain as above specified. Railroad Co. v. Strange, supra; Brisbine v. Railroad Co. 23 Minn. 114.

The ruling- of the court in striking out paragraph 7 of the last amended petition must be regarded as error, since said paragraph, as well as paragraph 6, contains material matters necessary to the determination of the controversy between the parties. The refusal of the court to allow petitioner to show by competent evidence “that the sum of $180 was paid by the petitioner to the defendant Cora Allen, the owner of said land, and by her accepted in full payment thereof,” was also erroneous. It may explain, but does not justify, the ruling of the court below, that at another stage of the trial the petitioner’s counsel advanced a different theory, or assumed an inconsistent position, in argument, concerning the rights of the parties in relation to the matters in controversy. The evidence thus offered was in support of the allegations of the petition, it was material to the issue, it related to the very essence of the controversy between the parties, and should have been received. As was said by this court in Hall v. Rockwell, 8 Colo. 105: “This court reviews a case upon the record. * * * A theory-adopted by court or counsel, not in harmony with the record, cannot influence our judgment.”

Petitioner offered to show an outstanding tax-deed to the property in one Armstrong, who was not a party to the proceeding. As there was no averment ■ in any of the petitions disparaging the defendant’s title, except the petitioner’s own claim, as above stated, the offer was properly refused.

In proceedings to condemn property for public use, the burden is upon the defendant to show the value of the property or interest therein actually taken, as well as the damages, if any, to the residue of such property. The burden of showing benefits, if any, may be upon the. petitioner, as well as the burden of showing the necessity of the taking, where such matters are litigated. In this case there was no controversy as to the necessity of the . taking. It was not error to allow the defendant to open and close at the trial. Mills, Em. Dom. § 92.

Whatever may be the rule in other states, or in the absence of statute, there can be no doubt that under our law (St. Em. Dom. § 17) the true and actual value of the property or interest therein, belonging to the defendant at the time of the appraisement, is to be allowed and awarded to the owner of such property or interest.

The former opinion in this case is withdrawn, and the judgment of the county court is reversed, and the cause remanded. In view of the nature of the action, and the circumstances of the case, no costs will be awarded against the appellee.

Reversed.