Mu. Justice Westcott
delivered the opinion of the court.
This is a proceeding by writ of prohibition to the Judge [640]*640of the Circuit Court for the Fourth Judicial Circuit oj? Florida.
The pleadings are as follows:
To the Honorable, the Justices of the Supreme Court of Florida :
The petition of Mary L. Moody and of Paran Moody,, her husband, respectfully shows and suggests to your Honors :
That on the 31st day of May, 1883, your petitioners filed their bill in equity in the Circuit Court in and for Duval county, Florida, before the Hon. James M. Baker, the-Judge of said Court, against the Jacksonville, Tampa and Key West Railroad Company, alleging that they had forcibly entered upon certain lands of your petitioners and without their leave or the authority of law, and against your petitioners’ consent and wishes, were appropriating said lands or a portion of them to the buiding of a railroad and j)rayed an injunction against said defendant tore-strain them from said acts of trespass. Upon said bill the said court granted the injunction prayed for. Afterwardsthe defendant filed an answer justifying their alleged trespass under ajnd by virtue of an act of the Legislature of Florida, entitled “ an act to provide a general law for the incorporation of railroads and canals,” being chapter 1987, (Ho. 12,) of the acts passed in the year 1874, and which was approved February 19th, 1874, whereupon, the said court, after argument heard, dissolved the said injunction, and your petitioners appealed from.the said order of dissolution to this court, which, at its last January term, pronounced its opinion in said cause and rendered its judgment and decree whereby it said that that portion of the said statute which authorizes the taking of private.property for public use, and under which the' said defendants [641]*641justified, is unconstitutional and void, and this court reversed the order of said Circuit Court, dissolving the injunction, and decreed that the said injunction be revived-, to continue until the further order of the court, or until the corporation may be granted the right of compulsory purchase of the land of the plaintiffs, by the proper authority, and just compensation is made to him therefor upon its legal condemnation to the use of the company.:- ■
And the rnaudate of the court in said cause was filed in the said Circuit Court on the 5th day of June, 1874, Your petitioners now suggest to your Honors, that notwithstanding the judgment and decree of this court, and its-opinion in said cause, involving the right of said railroad company to exercise by delegation the right of eminent domain, and which claim this court decided against said corporation’s right, the said Circuit Court, the Hon. James M. Baker presiding, is about to give force and effect to so> much of said act as provides for the right of eompiilsory purchase of plaintiff’s land by- said corporation ; that said corporation has filed in the said Circuit Court its petition asking for the appointment by said Circuit Court'of commissioners under said statute for the appraisal of your petitioner’s land in order that they may be condemned, and the said Circuit Court has announced its intention to appoint them. A transcript of all the proceedings in the case, duly certified, accompanies this suggestion, by which your Honors will be informed of the truth of the facts here stated.
Your petitioners therefore pray that a writ of prohibition may be issued, prohibiting the said Circuit Court and the Judge thereof from appointing any commissioners under said act, for the purpose of appraising or condemning your petitioner’s land for the use of said corporation, and from doing any other act under said statute to uphold or en[642]*642force any alleged claim by said corporation that it has the right of compulsory purchase of your petitioner’s land, and from in anywise violating the mandate of this court which has been issued in said cause. And that your Honors may make such other order in the premises as may be proper.
. Mary L. Moody and Paran Moody,
By E. M- L’Engle, their Attorney-at-Law;.
The petition of the company which accompanies the suggestion, after stating its incorporation, and its contemplated line of road, and the construction of its road from Jacksonville to Palatka, recites that it has constructed its track upon and over certain lands beingthe separate property of Mrs. Mary L. Moody, wife of Paran Moody, giving a description of the lands, the line of the track in detail, and asserting possession. The petition recites further that it has attempted to acquire title to the land by appraisal to so much of said lands as is the track and road-bed, including a right of way one hundred feet along the line of location of its track, but that the title thereby attempted to be acquired is defective, and that it has not acquired title thereto ; that the portion of said lands which the company seeks to acquire is a strip fifty feet wide on each side of the centre of its main track ; that the company has in good faith constructed aud finished a railway over the said lands, have made a survey and map thereof by which such route or line is designated, and has located its road according to such survey, and filed certificates of such location, signed by the engineer of the company,in the office of the Olerk of the Court for Duval, being the county in which such real estate is situated; that the land described in this petition is required for the purpose of constructing and operating the said railroad, and that the company has not acquired title thereto.
[643]*643Petitioner then prays for the appointment of three qualified commissioners to appraise the compensation to be paid. Mrs. Moody for so much of the real estate proposed to be taken by said company tor its track and right of way as aforesaid ; that the court may fix the time for the first meeting of the commissioners ; that the court may authorize the road to continue in possession and use of such real estate, and that all actions or proceedings against said company on account thereof, or by reason of the use, occupation or possession of such real estate, pending the proceedings, on the company paying into court a sufficient sum, or giving security, as the court may direct, to pay the compensation therefor when finally ascertained, either of which your petitioner is ready and hereby offers to do, whenever- and as the court might direct. Petitioner prays the court to at once direct and determine what sum shall be paid into court, or security given by your petitioner, and thereupon that an order be made enjoining and restraining the said Mary L. Moody and Paran Moody, her husband, from fur. ther prosecuting or bringing any and all actions or proceedings against your petitioner by reason and on account of the use, occupation and possession of the premises aforesaid pending aud until the final determination of these proceedings. There was a prayer for alternative relief, and\he petition was sworn to by an officer of the company.
It is made to appear that the court has required a cash payment of f>i),000 to be paid into court to pay the compensation for the lands when ascertained. Upon the filing of this petition and exhibit in this court, a rule to show eause was awarded in language, as follows:
[644]*644In the Supreme Court oe Florida,
June Term, A. D. 1884.
) j
The State oe Florida :
To the Hon. James M. Baker, the Judge of the Circuit Court' of the Fourth Judicial Circuit of Florida, and the Jacksonville, Tampa and Key West JRailroad Company:
Mary L. Moody and Paran Moody having filed in this court their suggestion, that notwithstanding the opinion of' this court heretofore, at its last January term pronounced, and its mandate on the 21st day of last May, issued in the cause wherein Mary L. Moody and Paran Moody were the-appellants and the Jacksonville, Tampa and Key West Railroad Company and others were the apellees, you, the said James M. Baker, Judge, as aforesaid, are about to give-force and effect to so much of the act of the Legislature of the State of Florida, approved February 19th, 1874, (being chapter 1987, Ko. 12, of the said acts,) as provides for the-right of compulsory purchase of lands by railroad corporations, and that you are about to appoint commissioners under said statute for the appraisal of said petitioners’ lands,, in order that they may be condemned for the use of said railroad company. And the said petitioners, praying that the State’s writ of prohibition may be granted in this behalf to prohibit you, the said James M. Baker, Judge, as aforesaid, from appointing any commissioners under said act for. the purpose of appraising or condemning the lands of said petitioners for the use of said corporation, and from doing any other act under said statute to uphold or enforce any alleged claim by said corporation, that it has a right of compulsory purchase of the petitioners’ land, and from in any wise violating the mandate of this court, which has been issued as already' stated. You, the said James M. Baker, Judge, as aforesaid, and you, the said Jacksonville, Tampa and Key West Railroad Company, are therefore-[645]*645•commanded that you show cause, on Thursday, the 10th day of July next, at ten o’clock, A. M., why the writ of prohibition should not issue as prayed for.
Witness, the Honorable Edwin M. Randall, Chief-Justice of the Supreme Court of the State of Florida, and the seal of said court, at Tallahassee, this 25th June, A. D. 1884.
[seal.] C. H. Foster,
Clerk Supreme Court of Florida.
The defendants demur to the suggestion in prohibition, and there was joinder in demurrer.
Several grounds of demurrer are here set up, but we think it necessary to examine but one. It is insisted by the defendants that the Circuit Court, under the statute, has full jurisdiction to have the appraisement made at the suit of the company, and that for this reason no prohibition will lie.
The contrary is.maintained by the plaintiffs. They insist that the Circuit Court is exercising powers under a statute ■which is unconstitutional, that it is exceeding or attempting to exceed its powers. If the Circuit Court in lending its aid to have the appraisement and compensation sought ■under the allegations of the petition of the company is enforcing the company’s constitutional rights, then a prohibition certainly will not lie.
The right here sought to be enforced is the exercise of the right of eminent domain, in a case where a railroad without having acquired title to land have constructed upon it their track. The proceeding under this state of facts is regulated by the twentieth section of its charter, (§20 •chap. 1987, Laws of Fla.,) which provides as follows:
“ In any case where a railroad or canal company shall ■not have acquired title to any laud upon which they have constructed their track or canal, or if at any time after an attempt to acquire title by appraisal of damage or other[646]*646wise, it shall be found the titles thereby attempted to be acquired is detective, the company may proceed anew to acquire or perfect such titles in the same manner as if no appraisal had been made, and at any stage of such new proceedings the court shall authorize the corporation, if in possession, to continue in possession; and if not in possession to take possession and use such real estate during the pending of such new proceedings, and may stay alt actions or proceedings against such company on account thereof, on such company paying into court a sufficient sum, or giving security, as the court may direct, to pay the compensation therefor when finally ascertained. Eo injunction shall be granted until said compensation has been fixed and determined.” And the compensation to be awarded under the statute embraces the value of such tract of .land proposed to be taken, with the improvement thereon, and each separate estate therein, and the damage sustained by the'owner by reason of the taking thereof. It is to be noted that this compensation under the statute embraces not. only the value of the land but also “ the damage sustained by the owner,” resulting from the use and possession during the pendency of the proceedings. Under some decisions this is deemed essential to the constitutionality of the act. Davis vs. San Lorenzo R. R. Co., 47 Cal., 517.
This section of the act provides a means by which a company already in possession of land of a party by having constructed its track upon it, without acquiring a title to it from the owner, that is by an unlawful entry or trespass, may acquire title. The owner under this section of the act cannot have an injunction against the use and possession of the land until the compensation has been fixed and determined. After that compensation is fixed, the law contemplates that in the event of non-payment he may at once enjoin the continuation of the unlawful antecedent posses[647]*647sion. During the pendency of these proceedings the temporary possession is protected in the company, and the final dominion and right of possession of the owner is not destroyed until there is an actual payment of the money which is to be realized from cash or security required to be antecedently deposited by the court. There can be no right to a continuation of the possession or right of property, whether it be a fee simple or an easement in the company, except upon payment of the compensation fixed by the commissioners.
So far as the matter, of just compensation which the owner of the land is to receive upon the taking of his property is concerned, its payment to him is, we think, secured here within the meaning of the constitution. In the case of Moody & "Wife vs. The Jacksonville, Tampa and Key West Railroad Company, decided at the last term, we held that a judgment against a corporation, with the right to have execution thereof, was not a just compensation to the land owner for the taking of his land for construction of the road and its appropriation- to its use. We held also that in the absence of legislation securing just compensation a court of equity could not authorize the condemnation by securing it to the company; that this was a legislative function, and that a court of equity was powerless to sanction such a trespass for the reason that the right of the owner to just compensation must be the result of legislative action. We did not say, either there or elsewhere, nor- can or do-we say now, that where there had been an unlawful entry and appropriation the Legislature could not authorize a condemnation and change of ownership, by protecting and enforcing the constitutional right of just compensation to the owner before his dominion and right of property was taken away. That is this case. So far as the matter of the sections of this law, which regulate the proceedings [648]*648for appraisal by commissioners, are concerned there may be constitutional objections to portions of them, but there is in these sections sufficient to authorize and prescribe a constitutional method of proceeding, complete in itself: that these unconstitutional portions of the sections may be stricken out, or simply disregarded, in the proceeding, and the constitutional provisions followed, under such circumstances, cannot be questioned. Such is the doctrine announced in this court on several occasions, and it is fully sanctioned by the cases. Therefore, it the authority of the court to require security for the compensation, as authorized in this proceeding, is unconstitutional, there still remains the duty to make a cash deposit sufficient to meet the compensation to be ascertained, and the party has the right to enjoin the use of the land until he is paid after the damage is ascertained.
Our attention has been called to the principles announced in the case of Moody & Wife vs. The Jacksonville, Tampa and Key West Railroad Co., decided at last term. This was a suit in equity. The present case is one in prohibition, under entirely different circumstances. It seeks to prohibit the court from exercising a jurisdiction which it plainly possesses under a constitutional statute. That decision was to the effect that section seventeen of the charter of this company was void, being beyond the power of the Legislature, and that such portion of the act regulating the proceeding to appraise by comihissioners as authorized the company to enter upon, take possession of and proceed with the construction of its road, even before filing a petition for the appointment of commissioners, was void. We there said*as to section twenty of the act, the one now under consideration, that u other provisions of the act regulating proceedings to acquire titles under circumstances not existing in this case, and which do not apply to it, are called [649]*649to our attention, but as they do not control this proceeding, or upon their lace or according to their plain letter and intent, purport in any manner to affect the present case, it is only necessary to mention their character. These sections prescribe a method of proceeding where the company shall not have acquired title to land upon which ‘ they have constructed their track, or if, after attempt to acquire title, the title’ attempted to be acquired is defective, or the title is in the trustee of an infant or idiot without power of sale.” We plainly say that proceedings under these ■sections are unlike those under the sections under which the company was then proceeding. ■ The Judge of the Circuit Court, in his opinion upon this subject, which we have read with interest, correctly construes the opinion rendered in the former ease in the matter of its limitations. In addition to the above general limitations, -we are continually .asserting in that opinion that we do not go beyond the exact case before us. Indeed, had we attempted to define the rights of either of the parties in a case where the company had “ constructed their track,” what we might have said would have been simply obiter to which even the doctrine •of stare decisis would have been inapplicable. It would not have been entitled to the standing of a precedent even. ■Certainly the rights of parties could not be thus determined.
What is the rule of the cases upon this subject? In the first place what is this case ? It is the illegal laying of a track by a railroad company, preceded by an unlawful and •unauthorized entry—-a trespass.
In the case of Secombe vs. The Railroad Company, 23 Wall., 118, the Supreme Court of the United States, in stating its views of the power of the Legislature, in the matter of the mode of exercising the right of eminent domain, says: “ There is no limitation upon the power of the [650]*650Legislature in this respect if the purpose be a public one and just compensation be paid or tendered to the owner for the property taken. It hardly need be said that the taking of private property in order that a railroad may be constructed is a public necessity. It is urged that the property in controversy was occupied before-the proceedings in condemnation were begun, but there is nothing in the findings of fact to show that this was so. Even if the plaintiff were in a situation to make the objection it would not avail him, for prior occupation without authority of law would not preclude the company from taking subsequent measures authorized by law to condemn the land for their use. If the company occupied the land before condemnation without the consent of the owner, and without any law authorizing it, they are liable in trespass to the persons who owned the land at the time, but not to the present plaintiff.”
In the case of Justice vs. Nesquihoning Valley Railroad Co., 87 Penn. State, 32, Chief-Justice Agnew delivering the opinion of the court, says: “ This is not the case of a mere trespass by one having- no authority to enter, but of one representing the State herself, clothed with the power of eminent domain, having a right to enter and to place these materials on the laud taken for a public use, materials essential to the very purpose which the State has declared in the grant of the chartei’. It is true the entry was a trespass by reason of the omission to do an act required for the security of the citizen, to wit: to make compensation or give security for it. For this injury the citizen is entitled to redress. But his redress cannot extend beyond his injury. It cannot extend to taking the chattels of the railroad company. * * * In the case of a common trespasser, the owner of the land may take and keep his structures nolens volens, but not so in this case, for though the original entry was a trespass, it is well settled [651]*651that the company can proceed in d,ue course of law to appropriate the land and consequently to reclaim and avail itself of the structures laid thereon.” The court, speaking of the original illegal entry, says: For it “ the owner has his appropriate remedies; his action of ejectment to recover and retain his land and its use until the company shall proceed according to law and his action of trespass to recover damages tor the injury sustained by the unlawful entry and holding possession, and whatever losetas been incurred by his illegal acts.” And in Harvey vs. Thomas, 10'Watts, 63, it was held that the subsequent proceeding to assess compensation was a protection against a recovery of vindictive damages.
The Supreme Court of Alabama, speaking through Brickell, Chief-Justice, in the case of Jones vs. N. O. & S. R. R. Co. and Im. Asso., 70 Ala., 232, says: “ The duty rested upon the appellee,” that is- the company, “ before the taking and appropriation of the lands to have caused in the appointed mode an ascertainment of the compensation to which the owner was entitled and to have made payment of the compensation. Neglecting this duty the entry upon and possession, of the lands was wrongful. No title to them was acquired and the title of the owner was not divested. The neglect of the duty, the wrongful entry and possession, does not preclude the appellees,” that is the company, “ from resorting subsequently to the appropriate proceedings for the acquisition of the lands and, of consequence, availing itself of all the structures it may have placed thereon.”
This court sustains clearly the proposition that the company, notwithstanding the original unlawful entry, does Dot stand in the relation of a common trespasser, and has the right to subsequent legal condemnation.
It is certainly unnecessary to repeat page after page of [652]*652precedent upon this subject. ' They sustain the conclusion that while the original entry may have been tortious, yet if the Legislature has, with the power to peremptorily purchase, imposed the corresponding duty of making just compensation, the subsequent condemnation is legal.
With a few comments on the cases upon this subject cited by the plaintiffs, we leave this branch of the case. In the State of Wisconsin, our attention has been called to the following cases: Bohlman vs. G. B. & L. P. Railway Co., 30 Wis., 105; Burns vs. W. & M; R. R. Company, 9 Wisconsin, 450; McAulay vs. W. V. R. R. Co., 33 Vermont, 311; and to chapter 175, General Laws of that State, April 6th, 1861. The first case was an action for an injunction to restrain a company from appropriating plaintiffs’ land in the construction of a railway track where the company had not taken any measures looking tq compensation of plaintiffs. It was not a case where the track liad been constructed, nor was it based upon a statute like the statute of Florida. It was based upon a clause of an act (sec. 2) which gave a right to the owner of the land over which the company had constructed its road without making compensation, and the decision .was that in a case where he had not consented to the unlawful entry he was entitled to an injunction restraining any entry by mules and teams for the purpose of preparing the road bed, as well as to damages. It is true that Mr. Chief-Justice Ryan, in speaking of the entire act., says that it was intended only to apply to cases where the railroad company has entered upon and has actually built and put its road in operation over the land by the permission, tacit or express, of the owner. The effect of the decision was to say that where there was an assent to the entry the owner’s right to an injunction until his compensation was ascertained did not exist under the statute, but that where there was a for[653]*653eible entry his right to such injunction did exist outside of the statute; and the court holds that if the statute denied this right to an injunction after a forcible entry to prevent the use or occupancy of the land by the railroad until the amount of damage to which any owner might be entitled should have been liquidated, it would have been unconstitutional. I do not understand the statute of Florida to deny to the owner of the laud his right to enjoin such use following a forcible entry until he has been compensated, or his compensation by cash deposit secured. If the company here had entered into possession of this land forcibly, and propose to retain it without compensation, the owner is nowhere denied the right to an iuj unction “ to prevent the use of the land ” for such purpose until his damages shall be paid him or secured to him in cash when ascertained.' What the owner here apparently wishes is to prevent any legal ascertainment of the damages under the statute entirely, to dispossess the road permanently by preventing the company’s compliance with the law, which authorizes it when it shall have constructed its track to ascertain the compensation due, and which requires it to make just compensation before it can have permanent use of the land for the public purpose for which it was created. Here this court is asked to prevent the company from exercising its right of compulsory purchase through the Circuit Court after it has instituted its proceeding looking, to appraisal and after it has deposited its money in the court under the provisions of a law, constitutional to that extent at any rate.
The case of Andrews vs. The Farmer’s Loan and Trust Company, 22 Wis., 288, decided that the act considered in 30 Wis., 195, in so far as it restrains the right to injunction above stated, is-constitutional.
The case of Burns vs. W. & M. Railroad Co., 9 Wis., 450, has no application to the matter of the construction of [654]*654this statute. The question was whether certain lands taken were necessary for the purposes of its charter. What these decisions mean is explained in subsequent cases in Wisconsin construing these statutes. See especially the case of Sherman vs. The Milwaukee, Lake Shore and Western Railroad Company, 41 Wis., 651. See this case also for a discussion of the extent of the liability of a railway company trespasser, having the right of eminent domain, in ejectment or trespass. We cannot see what aid the cases. cited from 33 Vermont, 311; 3 Stockton, 106, and 7 N. H., 70, can give us in the construction of our statute.
After writing the preceding portion of this opinion, we have received an additional brief of the plaintiffs and we will examine the points made to the extent that reach the question of jurisdiction.
A construction of that portion of the section of the act providing for a stay of actions pending against the company and denying a right of injunction until compensation has been fixed, is deemed necessary. The only remedy which the owner had in equity as to the wrongful possession is an injunction affecting the possession. This the statute suspends until the compensation to which he. is entitled is ascertained and then it is revived. The other class of actions stayed ai’e actions at law concerning the possession. I do not understand that any action at law, growiug out of the wrongful entry, sounding in damages is stayed by this action, or that any other legal remedy which he may have is stayed unless it affects the present temporary possession without title. That, the Legislatnre secures to the company in order that it may discharge its duties to the public, and at the same time it secures just compensation to the owner. This question of power is discussed in the case of Andrews vs. The Farmer’s Loan and Trust Company, 22 [655]*655Wis., 295, where the suspension of the equitable right to an injunction is sustained as constitutional, and if this he so a stay of legal remedies affecting the possession is constitutional also. This stay of proceedings relates to actions accruing and instituted after the passage of the act, and it is within the power of the Legislature to prescribe reasonable rules for the stay of actions in cases of this character. Objection is made on the ground that the court is given the authority to fix the cash sum to be paid into court to meet the compensation to be awarded, and because the right to institute the proceedings to appraise is restricted to the company. These objections concern the method of exercising the right of eminent, domain under the constitution, ás ''to which, as remarked by the Supreme Court of the United States: “It is no longer an open question in this country that the mode of exercising the right of eminent domain in the absence of any provision in the organic law prescribing a contrary course is within the discretion of the Legislature.”
The court here has authority to hear witnesses, to determine the amount of the deposit by virtue of its general power, to determine what is a sufficient sum and it is a very proper authority to exercise the power. The constitution nowhere provides that the owner shall have the right to institute a special proceeding to ascertain his damage. He is left to his ordinary legal and equitable remedies as they exist. The limitations of the constitution concern the legislative powTer to take private property and the only limitation is that it shall be taken for a public use and with just compensation to the owner. Any method which secures that to him is constitutional. It is not necessary that his rights of action should be increased.
We think we have considered all the questions which arise in determining whether the Circuit Court is not ex[656]*656ercising a power within its constitutional jurisdiction. Our conclusion is that it is acting within its powers, and the necessary result is that a writ of prohibition must be denied.
The judgment is that the rule is. discharged, and the-writ denied, the costs to be paid by the relator, Paran Moody.