Hunt v. Smith

9 Kan. 137

• Court: Supreme Court of Kansas
• Decided: January 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

The questions involved in this case we decide as follows:

I. The statutes of Kansas authorizing real estate to be appropriated to the use of a railroad company for a right of way (Gen. Stat., pp. 212 to 215, ch. 23, §§81 to 89; Laws of 1870, pp. 155, 156, §§ 1, 2,) so far as they apply to this case do not contravene the provisions of § 4, article 12, of the constitution, and are not unconstitutional or void.

II. An owner of land is not in the actual occupancy of the same within the meaning of § 49 of the act concerning private corporations, (ch. 23, Gen. Stat., p. 203,) unless he is an actual resident thereon; and where such owner is not an actual occupant of the land notice of the appropriation of a part of the same for a right of way for a railroad given by publication in a newspaper, as provided by amended § 86 of said act, (Laws of 1870, p. 155, §1,) is sufficient. See also Gen. Stat., p. 1000, § 1, subdivisions 23, 24, 25.

III. It is not necessary under § 48 of said ch. 23, concerning private corporations, that a railroad company should file with the county clerk a map and profile of the entire line of their proposed road through the county before they can apply under amended § 87 of said act, (Laws of 1870, 156, §2,) to have commissioners appointed to make an appraisement and assessment of damages to any part of the property along the line of said road. A map and profile of what the company desires to have appraised, etc., is sufficient.

IY. Such commissioners must appraise the value of the land appropriated, and assess the damages to that not appropriated, irrespective of any supposed benefits to that not appropriated. St. Joseph & Denver C. Rld. Co. v. Orr, 8 Kas., 419.

y. It is not necessary that the report of the commissioners should show upon its face more specifically what portion of any particular tract of land was appropriated or appraised, or for the taking of which damages were assessed, than to show that the land appropriated was a strip through a certain quarter-section of land (describing particularly the quarter-section,) one hundred feet wide along the line proposed by the railroad company; for such strip cannot vary from that shown by the map and profile of the company filed in-the county clerk’s office, and such map and profile make it definite and certain what land is appropriated.

VI. It is not necessary where only a strip of land one hundred feet wide is taken, that the report should show expressly that the commissioners deemed such strip necessary. ,

VII. Where the commissioners in their report use numerals only to express the valuation of the land taken, and the damages to that not taken, and where it is evident from the report that the commissioners intended that such numerals should represent dollars and cents, the report is not void because the commissioners omitted to use either the dollar-mark, or the words “dollars” and “cents,” or some abbreviation of the same.

VIII. Nor is the report void because it does not show that any crops, buildings, or improvements were valued, or damages thereto assessed, or that there were no such crops, buildings or improvements on the land to be taken or damaged by the appropriation of such right of way.

IX. Nor is the report void because it simply shows that the commissioners valued the land taken, and assessed the damages to that not taken, and does not show affirmatively that they did not deduct from the said value or damages anything for benefits to the land not taken..

We shall not discuss the several questions herein decided except the seventh. We shall however here quote the very able opinion delivered by the judge of the court below, which we think sufficiently discusses them, and which we think gives sufficient reasons for the decision of the questions therein discussed. The said opinion reads as follows .-

“The plaintiff has been the owner of the premises de“eribqd in his petition since the 4th of September 1869, and has been in possession of the same continuously from that time to the present, part of the time personally, and part of the time by tenants. They are partially improved, and have upon them a dwelling-house and two. stables. Since the 1st of May last no person has resided on them, but the plaintiff has had the key to the dwelling-house during this time, and every few days has visited them to look after and care for the same. No part has been in cultivation during the present year-

“The railroad company, with a view to obtaining the right of way for a road running westwardly from the city of Leavenworth across the premises of the plaintiff to the westexm bouxxdaxy of the county, and thence on to the city of Dexxver, in Colorado, instituted px’oceediixgs to coxxdemn such x’ight of way through this coixxxty, and claiming to have complied with the provisioxxs of the statute relating thereto, have entex-ed upon the plaintiff’s land axxd commenced to gx’ade the road. It is now claimed by the plaintiff that these proceedixigswere irregular and void; and that the defendants should be enjoined fronx constructing their road across his prenxises until a right so to do is acquired by a strict compliance with the provisioxxs of the law pertaining thereto. It is claimed the statute under which these proceedings were had is, in an essential particular, in coxxflict with the provisioxxs of the constitution, axxd therefore xnxll axxd void in whole. I caxxxiot yield assent to this proposition. The constitxxtioxi provides in substance, that xxo right of way shall be appropriated by any corporation until full compensation be made iix xnoxxey, or. secured by a deposit of money, irrespective of any beixefit from any improvement proposed by such corporation; and it is claimed that the statxxte contemplates that the benefits which may accrue from the proposed railway shall be taken into consideratioxi in the assessment of damages. It is xxnnecessary to quote the provisions of the statute bearing upon this question. It is sufficient to say that they do not in terms, or by fair implication, provide that the benefits which may accrue from the construction of the road shall be taken into consideration in determining the compensation to be made to the owner. Nor is it conceded that the statute would be void, even though the repugnance claimed by the plaintiff actually existed; but it is unnecessary to determine this question, and therefore I pass it without any fux’ther observation.

“Several Objections ax’e made to the regularity of the proceedings to condemn the right of way. Tlxe law' requires a map axxd profile of the route of the proposed road into or through, the county, to be filed with'the county clerk before commencing the construction of the road. The distance of the company’s road in this county is about eighteen miles. At the time the commissioners fo .lay off-the route and assess the damages were' appointed by the judge, (Oct. 3, 1871,) a map and profile .of only the first division of ten miles bad been made and filed with the clerk, and a map and profile of the entire distance through this county was not filed until the 9th instant, (Nov., 1871,) on which day the report of the commissioners wa$ also filed in the same office; but the plaintiff’s premises are situate within the limits of the first division. If no map and profile of that part of the road which runs across the land of the plaintiff had been filed, as the law requires, at the time the commissioners were appointed and the published notice of thirty days given, it is possible the omission would have been fatal, and the entire proceedings void as to the plaintiff. But a map and profile from the initial point for a distance extending beyond the premises of the plaintiff had been filed in due time, and this secured to the plaintiff every benefit and advantage that could possibly result from the filing of a map and profile of the remaining part of the road in this county, and • every 'purpose of the statute, so far as the plaintiff was concerned, was thereby subserved.

“It is also claimed the report of the commissioners does not state that it is necessary to take the quantity of land the company seek to appropriate, nor sufficiently show what quantity was actually condemned. As to the last point, I think it does show with reasonable certainty the quantity taken. It shows it to be a strip 100 feet in width along the line proposed by the company, which I understand as referring to the map and profile filed with the county clerk; and that it amounts to seven and 63.100 acres. This is sufficient both as a description and designation of the quantity of land taken. As to the other point, § 82, p. 211, Gen. Stat., provides: 'Upon application being so made in writing, such board of county commissioners shall forthwith proceed to lay off such route, side tracks, etc., for such distance through their said county as may be so desired-, and of such width within the limits aforesaid, and upon such location as may be desired by such corporation, having the same carefully surveyed, and ascertaining correctly the quantity of land necessary for such purposes.’ The report contains no statement that the 100 feet in width is .necessary, but I do not think the statute requires this. It says the commissioners, within the limits prescribed by law, are to lay off the route, side tracks, etc., of such width and upon such location as may be desired by the corporation; and having done this, they are then to carefully ascertain the quantity necessary to be taken. When the statute says the route shall be laid off of such width and on such location as the corporation may desire, it does not mean that the width and location of the route shall be left to the judgment of the commissioners. They are not to determine whether it is necessary or not to take the quantity of land sought to be appropriated by the company, but are to lay off the route as wide as the company may desiré, so long as the limits of the statute are not transcended. If, then, the commissioners are not to determine the necessity of taking the quantity of land desired by the company, there would be a manifest impropriety “in requiring of them a statement that there was a necessity for the quantity taken.

“Another objection to the report is, that it does not show that the damages were assessed as the law requires; that is, irrespective of any benefits which may be supposed to accrue from the construction of the road. It is true the report does not state that the commissioners, in assessing the damages, did not take into consideration the benefits which might result from the proposed road; but it does state that, having taken the oath required by law, they met at the proper time and place ‘and proceeded to lay off the route for said railroad along the line proposed by said company, and to appraise the land to be taken by said company, and assess the damages occasioned thereby;’ and that they ‘do award compensation and damages in the premises as follows, . viz.’ And- then follows a tabular statement showing the owner’s name, description and quantity of the several tracts over which the route passes, the width and quantity of the land appraised, its value, the damages assessed to each several tract, and the total compensation allowed, including therein the appraised value of the land taken, and the damage awarded the owner. The law requires the report to embrace the proceedings of the commissioners, which are, in respect to the matter now under consideration, the assessment of all proper damages occasioned by taking the right of way for the purpose proposed. The report says the damages are assessed at a certain sum stated. There is no statement or suggestion that any supposed benefits were taken into consideration. As the law expressly requires that the commissioners shall not take the accruing benefits into consideration, I think the presumption should be, that the law was obeyed by them in this respect, and therefore-that their report need not in terms state that the law was not violated in this particular.

“But a further and final objection presents a serious and difficult question to satisfactorily determine. Sec. 49, p. 203, Gen. Stat., is as follows: ‘The company shall give Avritten notice to all actual occupants of the land over Avhich the route of the road is so designated, and Avhich has not been purchased by or donated to the corporation.’ The plaintiff has not. donated or sold the right of Avay to the company, and no Avritten notice has been given him, though verbal notice of -the' route over his premises was given him by the chief engineer; but I cannot consider such a notice as sufficient under the statute, and if the plaintiff Avas an actual, occupant,of-his.-premises.within' the- scope and meaning of this proAdsion of the laiv, I should be compelled to hold the omission to give the Avritten notice fatal, and that the company acquired no right Avhatever to the right of Avay, and the plaintiff Avould be entitled to his order of injunction. It Avill be borne in mind that the premises of the plaintiff have not been in cultivation during the present year, and that Avhile the plaintiff has had the key to the dwelling-house, and every few days has vdsited his place to look after and care for it, no one has liA^ed thereon since the first of May last. The question is, is the plaintiff an ‘actual occupant’ Avithin the meaning of the section just quoted, and therefore entitled to the personal Avritten notice therein provided for? The law requires a general notice to all, to be published for thirty days, and for special reasons requires an additional personal notice •in Avriting to each actual occupant.' Noav it Avill be conceded as a general rule that the OAvner of real estate Avhich he cultivates,or improves, is to be deemed an occupant of it, although he does not reside thereon; but in my judgment the Avords ‘actual occupants,’ as used in this section, arc to be interpreted according to their more general and popular usage and acceptation. I think the Avord ‘actual’ AVas intended to qualify and explain the Avord ‘ occupants,’ and that Avhil'c the last-mentioned Avord, standing alone, might be considered as equivalent to the phrase ‘ parties in possession,’ yet as limited and qualified by the Avord ‘actual’ preceding it, it has a more restricted and popular signification. It certainly emphasizes and adds force, or rather intensity, to the idea, and it seems to me was only intended to apply to persons actually residing upon the premises at the time the notice should be given. It will be observed that the notice is not to be served upon the owner, but upon the ‘actual occupant’ wherever he may be, or whatever his right or title to the premises he is occupying; from which I think it is evident, the intention in requiring the special notice in writing to the person actually a resident upon the land over which the route runs; was to afford him an opportunity to protect his interests whatever they might be, and in case he was a mere tenant, that he could give timely information to the owner, it being supposed that if the party residing on the land was not himself the owner he would know the whereabouts of the latter. (Gen. Stat., 1000, clauses 23, 24, 25.) To hold that because land over which the route of a proposed railway passes, is improved in whole or in part, but upon which no one is residing, the railroad cpmpany must at their peril give this written notice to the person making these improvements, no matter Avhere he may be, Avould in effect substantially render the laAV ineffectual, in my judgment. Suppose he is in the military or naval service, or on a journey in a foreign country, or possibly a citizen and inhabitant of another country, must these great highways of commerce, so vital and necessary to the development and prosperity of our state, Avait on the performance of an act in many cases quite difficult, and in not a feAV impossible for months and even years? for example, a rude dwelling on the prairie, Avith perhaps a feAV acres broken up, but no inclosure, and upon AA'hich no one resides, the party far away, -or unknoAvn, etc. I cannot think the legislature have conferred on companies the right to appropriate the way for railroads upon an impossible condition. The injunction prayed for Avill be refused.”

So far as said opinion reaches, Ave agree with the district court. But it is claimed that because the commissioners did not use the dollar-mark, or the Arords “dollars” or “cents,” or some abbreviation thereof, or some other express Avord or character to show that the numerals Avhich they used in their report to express the valuation of the land taken, and the damages to that not taken, that the report is void. We do not think so. The commissioners reported among other things that they “proceeded to lay off a route for said railroad along the line proposed by said company, and to appraise the land to be taken by said company, and assess the damages occasioned thereby, and to award compensation and damages in the premises as follows, viz.: * * * Owners’ names, F. R. Hunt; description, N.E.-|- section 21, township 8, range 22; acres in tract, 160; feet in width appropriated, 100; acres appropriated, 7.63; value thereof, 572.25; damages sustained, 527.75; total value and damages, 11.00.00.” The latter part of this quotation, commencing with the words “ owners’ names,” is in tabular form. The commissioners, as will bo seen from this quotation, used the words “appraise,” “assess,” “aAvard,” “compensation,” “damages,”and “aMuc” AAdth reference to said numerals—Avords AAfhich in contemplation of laAV can have no meaning at all unless the figures they refer to are intended to represent money. In legal contemplation land cannot be assessed, appraised, or valued, nor can compensation or damages be awarded therefor, except in money. Money is the legal representativa of all other property, and is the only legal representative of other property. When any one speaks of value or damages he must mean value or damages in money, as that is the only legal measure of value or damages knoAvn to the business Avorld. This latter proposition is established not only by the laws of this country, but is also established by the universal custom and usage of all ciAdlized nations. But it may be claimed that there is nothing in this report to shoAv AArhat kind of money the commissioners intended by said numerals, Avhether American or Foreign, Avhether eagles, dollars, dimes, cents, or mills. There certainly need be no difficulty upon this point. If these numerals are intended to represent money at all, they must represent Avhatever may be legally denominated .money in this country, and nothing else. They must 'represent AArhatever the laws of the United States declare to be or recognize as money. Neither can there be any difficulty in determining Avhat denomination of money said numerals are intended to express. Dollars are the legal money-units of this country, made" so by tl\e laAArs of the United States. 1 Stat. at Large, 248, § 9; 1 Bouvier’s Law Diet., title, Dollar. Hence, Avhenever figures are used intending to represent money such figures must of course be understood to represent '“dollars,” unless a different intention is clearly expressed. The point or dot, resembling a period in punctuation, separating certain figures on the right from those on the left, is the decimal point. It makes the figures on the right decimals of a unit of whatever is intended to bo expressed by those on the left-. Those on the left as we have already seen are intended to represent dollars, hence those on the right must represent decimals of dollars. As only two figures on the right arc thus separated from the others, these two figures must represent hundredths of dollars, or in other words, •“cents.” This is well-settled by almost universal usage everywhere in the United States. It is not necessary that every word or phrase used in any instrument should be written out in full in order that the instrument shall be valid. In many cases characters, figures, symbols, signs, marks, points, or abbreviations, may be used instead of the words which they represent. Thus, the character “&” stands for •“and;” the Arabic numerals 1, 2, 3, 4, etc., stand for one, two, three, four, etc.; “ &c.” and “ etc.,” respectively stand for ■“and so forth;” “!$” for dollars; “c.,” “ct.,” “cts.,” for cent, or cents; “m.,” for mills; “It.,” for lot; “bk” for block; •“tx.,” for tax; “vl.,” for valuation; “T.,” for township; '“R.,” for range; “sec.,” for section; “qr-scc.,” for “quarter-.section,” and “ pt.,” for part, etc. (Blackwell on Tax Titles, (2 ed.) 202, and cases there cited.) We suppose that all the usual signs or symbols used in mathematics, chemistry, music, astronomy, and other sciences, the characters used for denoting certain weights and measures, the marks of punctuation, and the ordinary abbreviations used in written composition, might be used in proper cases without invalidating the instrument in which they should be used. Even in some cases whole words or whole phrases may be omitted entirely— siihply being understood—without in the least invalidating or affecting the instrument from which they are thus omitted. Scarcely anything is more common in written composition than what is termed in grammar an “ellipsis,” and yet it is seldom that an ellipsis would invalidate an instrument. The language is just as good English, and just as valid in law, as a rule, with the ellipsis as with every word and phrase written out in full. Even many of the characters, figures, signs, symbols, marks, points, and abbreviations we have mentioned are by immemorial usage just as much a part of the English language as the letters of the alphabet themselves; and just as much a part of the English language as the words formed by combinations of these letters. Even these letters are only arbitrary characters, borrowed from the Latin at not a very remote period. In our language there are many words each of which have many different significations, or shades of meaning; there are many different words which express nearly the same idea, that is, which are nearly synonymous; and there is scarcely any limit to the order or arrangement of words in a sentence. A wide and almost unlimited discretion is allowed in the use of language. All that is required isy that the language shall be intelligible. The great end and object of all language is attained when the person using the language has made himself to be perfectly understood. This we think the commissioners in their report have done. No one can read the report of the commissioners and mistake their intention.

We have been probably more elaborate upon this point than is necessary. The reason we have discussed the question at such length is because counsel for plaintiff in error have referred us to certain decisions concerning the validity of tax titles which seem to lay down a different doctrine. It is well known that courts have usually construed everything strictly, and sometimes illiberally, as against the holders of tax titles. Such should not be so in this case. The owner of the land can, in condemnation proceedings, appeal from the valuation and appraisement of the commissioners if he be dissatisfied with the same, and have his appeal tried before a jury in the district court. (Laws of 1870, page 155, §1.) We think therefore that we should not construe the report of the commissioners upon tills subject cither liberally or illiberally, strictly or loosely, but should construe it reasonably. In> those tax cases referred to courts themselves admit that they construed the proceedings strictly as against the holder of the-tax title, and do not claim that they construed them reasonably. The judgment of the court below is affirmed.

All the Justices concurring.