Mo. River, Fort Scott & Gulf Rld. v. Shepard

9 Kan. 647

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

Opinion

The- opinion of the court ivas delivered by

Brewer, J.:

The principal question in - this case is as to* the'validity of certain proceedings for the condemnation of •the right of way through the real estate of defendant in error. The proceedings were had under art. 9 of ch. 23 of the Gen. Stat.,, pages 212, 213. It is not claimed that the proceedings were not in conformity to the provisions of this article, hut it is insisted that under §§ 48 and 49 of the same chapter, p. 203, certain things must be done before any application -can be made under art. 9; or, if this be not so, then that art. 9 :is' unconstitutional, as failing to provide for notice to the «Owners of lands sought to be taken. The proposition is thus «clearly, and forcibly,presented by. the .learned .counsel for ■defendant in error:

“Either this law requires the company to file this map and profile before-application is made to the board of county commissioners, so that the notice mentioned in section 86 can in ¡some manner describe the land to be taken, or the law is (unconstitutional, b.ecause it provides for no notice.”

Let us examine the first branch of this dilemma. Sections •48 and 49 are as follows:

“Sec. 48. Every railway corporation, before constructing ¡any part of their road into or through any county named in -their charter, shall make a map and profile of the route .intended to be adopted by such company, in such' county, which shall be certified by the president and engineer of the ■company, or a majority of the directors, and filed in the office ,«f the county clerk of the county into or through which the road is to be made.

“Sec. 49. The company shall give written notice' to all actual occupants of the land over which the route of the road is so designated, and which has not been purchased by or «donated to the corporation.”

In must be borne in mind that the question is not, whether tthese sections are obligatory, but when they are obligatory. It is conceded on b°fh sides that they are law, and that their .requirements must be respected by all railroad companies. 'The only question is, do these requirements antedate the -condemnation proceedings? It is a question of construction and intention, and not one of power. When must-the map and profile, be filed ? Sec. 48 answers the question: ■“Before constructing any part of the road.” If filed before construction commences, the clear letter of the law is obeyed-The legislature have fixed the time. Who can change it ? Ibis a matter ¿entirely within legislative control, and beyond, judicial determination. When is the construction of a road commenced ? The term has no technical meaning. What is-its ordinary acceptation ? It refers to the labor put forth to-fit and adapt a certain selected route to the running of cars-Constructing is building. Building a road—constructing a road. This certainly does not include buying the ground on which to build and to construct it. Buying a piece of ground is not part of constructing a house. It may be an essential prerequisite, but is not a part of it. Much work has to be-done before the construction of the road commences. A company must be organized, stock subscribed, a survey made,, route selected, and the right of way obtained, before the construction proper commences. The term might as well be-enlarged so as to include all these, as simply the one of obtaining the right of way. It would have been just as easy,, if so intended, to have said “before condemning the right of way,” as “before constructing the road.” It seems to us,, therefore, that the plain language of §48 disposes of one branch of this dilemma. But there are other considerations,, worthy of notice, which sustain this view. Art. 9 is entitled, “Appropriation of lands for the use of railway and other corporations,” and is complete in itself. If the legislature had intended the filing of this map and profile to be a portion of the condemnation proceedings, it seems as though they would have inserted the requirement somewhere in this, article, and not have placed it, where it is, in an article declaring certain general powers and duties of railroad corporations. Still again: Art. 9 is a substantial re-enactment, of ch. 124, Laws 1864, p. 236, which continued in force until 1868. Sections 48 and 49 were first introduced into-the statutes in 1868. Now, as the legislature manifestly deemed the provisions of law in force from 1864 to 1868-sufficient for condemning the right of way, if they had decided to alter or add to those provisions, would they ■not naturally have made such change or addition in ;thc wery- chapter or article which purported to .include those provisions? It may be said, that, except as preliminary to the application for condemnation of .the right of way,.the filing of a map and profile would be of little value. Possibly this may be so. It was deemed entirely unnecessary for four years. If so, it would not -justify us in giving -to .the section a meaning its language did not authorize. Perhaps its value may seem greater when it is noticed that no map or profile is called for by article nine. That article is satisfied by a written report, giving metes and bounds, withput any map or profile whatever. Again: Sec. 49 provides for giving written notice to all actual occupants of lands not purchased or donated. Notice of what? The statute does not answer. Counsel says, notice of the condemnation proceedings. Why not, more probably, notice that the company is about to commence work, that the actual occupant may -prepare his fences so as to confine his stock, and preserve his crops? No notice is necessary or required where the company, owns the land; but where it has only a right of way, ■an easement on the land, and where the original owner has the right to occupy till the actual use for railroad purposes is .sought, notice is proper and required. The conclusion then -to which we have come, is, that the filing of the map and profile is not made by the statute preliminary to the condemnation proceedings. This conclusion has been reached with much hesitation, and grave doubts; but it seems to. us most fully to carry out the intention of the legislature. This brings us to a consideration of the other branch of the dilemma. Is the law unconstitutional, because providing for no notice? If the law was silent as to- notice, and an attempt ■was made by it to divest one of, his property without any pretense of notice, its unconstitutionality would be undisputed. A man cannot be deprived of his property without -due process of law. This process of law implies notice; not necessarily actual, personal notice, but notice, such that there .is a reasonable probability of the party’s receiving it. The rule is thus laid down by Denio, J., in the Matter of the Empire City Bank, 18 N. Y., 199: “It may be admitted that a statute which should authorize any debt or damages to be. adjudged against a person upon a purely ex parte proceeding, without a pretense of notice, or any provision for defending, would be a violation of the constitution, and be void; but where the legislature has prescribed a notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend, I am of opinion that the courts have not the power to pronounce the proceeding illegal. The legislature has uniformly acted upon that understanding _ of the constitution.” Article 9 is not obnoxious to the charge of attempting to divest property without notice. It attempts to provide for notice. It requires notice, gives opportunity to be heard, and defend, and right ■of appeal from the decision of the commissioners to. the district court. The real objection therefore is, that the notice provided for is insufficient. Sec. 86 of this article reads, that “before any board of county commissioners shall proceed tp lay off any railroad route, as herein provided, notice of the time when the same shall be commenced shall be given by publication, thirty days before the time fixed, in some newspaper published in such county,” etc. This does not contemplate personal notice. Nor is this essential. As we understand the learned counsel for defendant in error, they concede this. The statutes are full of instances of constructive notice, as in ■cases of publication against nonresidents, in attachment suits, foreclosures of mortgages, etc.; or in cases of changes in the valuation of real estate by the boards of equalization; or in the matter of street improvements in cities, or opening roads in the country. See in reference to the validity of constructive notices, generally, the cases of Mason v. Messenger, 17 Iowa, 261; Beard v. Beard, 21 Ind., 321, and the case from 18 N. Y., just cited.

But it is insisted that unless the map and profile are filed before the notice is adven, no owner can tell whether his land is to be taken, or whether he is one of the parties affected by the notice. The notice, therefore, it is claimed, is so indefinite as to be void. The legislature has provided for this notice. Whether we think a fuller and more specific one ought to be provided, or not, we must sustain this unless it conflicts with the constitution and is void. The line of the road must be located before application is made for a condemnation of the right of way. See § 81. The filing of the map and profile only makes more public what has been already previously done; though it may be noticed here, that the location of the line does not involve the making of a profile. It is enough that the general course of the road through the county is indicated and settled. Now, the location of the line of a railroad is not a thing hid under a bushel, or done in a corner. It is a matter of public notoriety. True, oftentimes several surveys are made, and lines run, but all of them are of public knowledge. The charter names the termini, and the counties through which it is intended to run the road. Sec. 7, p. 192, Gen. Stat. There is, as a matter of fact, and one of those facts of such general knowledge that courts may take judicial notice of it, in each county a public knowledge of the general course of a proposed railroad through such county. True, the exact quarter-section, or town lot, to be traversed, may not be known. But it is reasonably probable that persons to be affected by the assessment will be notified by the publication; fully as probable as in other cases of constructive notice. This thing also should be noticed: The very fact of laying out a railroad carries with it the idea of some discretion to be exercised upon actual survey of the ground. This is true of railroads, as well as highways. When viewers lay out a county road, .they are not limited, to a fixed, definite line. The general course is indicated by the petition and order; but within that general course they have a large discretion, as to the exact line. Sec. 4, p. 898, Gen. Stat. Was it ever held that this vitiated the notice, or made void the survey and location? So is it with a railroad. A change may be almost necessary. The interests of the public may bo benefited. A slight change may work a large saving in the cost of the right of way, or the expense of construction. These-are matters which cannot always be foreseen. They doubtless arrested the attention of the legislature, and influenced the legislation. They cannot be ignored by any one who considers the objects to be attained, and the means to be used. Perhaps this legislation is not as full as it ought to be. Perhaps other safeguards should be thrown around the property of the citizen. Be that as it may—and it is a question for the law-makers—we cannot pronounce this legislation void. The case of the Owners of Ground, etc., v. Mayor of Albany, 15 Wend., 374, is, so far as the indefiniteness of the notice is concerned, similar to this. A piece of ground was proposed to be condemned as a site for a public square. An extract from the opinion of Savage, C. J., will present the case: “It is alleged that the proceedings are unconstitutional because no notice was given to Richard I). Betts, who was assessed $41.20 as the owner of ground benefited. It is admitted that no personal notice was served on Mr. Betts, nor any notice, except a general notice published in the newspaper printed by the state printer, that a certain piece of ground, describing it, was required for a public square, and that on a certain day arid place, at a mayor’s court, to be held, etc., the damages which the owners would be entitled to would be inquired into and assessed, and that the amount of such damages would be apportioned and assessed 'upon the owners of houses and lots ivhich would be benefited, in proportion to the advantages-which such owners should be deemed to acquire. This notice' is the precise notice which the statute prescribes; and although it may be admitted that property cannot regularly be taken, or assessments made, which shall be obligatory without notice to the owner, yet it cannot be denied that it is competent for the legislature to say what notice shall be sufficient.” In this case, though the ground to be taken was described, yet the land alleged to be benefited, aird upon which the damages were assessed, was not. . Still the notice was held good. It seems to us, therefore, that the notice authorized by § 86 is sufficient, even though no map or profile had been filed in' the office of the county clerk.

There are other questions of alleged error presented by counsel for plaintiff in error, but we deem it unnecessary to' consider them. The notice as published was to the owners ‘ of lands along the line of the road “as the same is now or' may be located.” A suggestion is made in the brief as to the' effect of the words, “or may be.” We have not chosen to examine that question, for the real estate of defendant in error may have been on the- line as then already located; in which case he could hardly complain. At least, we shall wait for further facts before deciding that he could take any advantage • of this. The judgment of the district court will therefore be! reversed, and the case remanded for a new trial. • ' • '

All the Justices concurring.