Florida Southern Railroad v. Hill , 40 Fla. 1 ( 1898 )

Carter, J.:

1. We discover no error in overruling the first, second and fifth grounds of the demurrer. Indeed the appellant’s counsel have not argued them in their brief, and, under our uniform rulings, they are for that reason to be treated as abandoned.

It is not suggested in what respect the prayer of the bill is inconsistent with its allegations; nor do we perceive that it is so. The prayer is in the alternative, it is true, but that fact does not make it inconsistent, either in itself or with the allegations of the bill. It is entirely proper in all cases where the pleader is in doubt as to whether he is entitled to one kind of relief, or another upon the facts as alleged in the bill, to frame his prayer in the alternative, so that if he is not entitled to the one, he may obtain the other, under such alternative prayer. 1 Beach’s Modern Equity Practice §1x4. This disposes of the sixth ground of the demurrer. In such cases, if the complainant is entitled to either relief .prayed, the defendant can* not demur to the bill because the complainant is not entitled to the other. His remedy is to insist at the hearing, that complainant be confined to such relief only as he may be entitled to under all the circumstances of the case as then presented. 1 Beach’s Mod. Eq. Pr. §114; Western Insurance Co. v. Eagle Fire Insurance Co., 1 Paige Chy. 284. If, therefore, the bill stated a case entitling complainants to relief under either branch of the alternative prayer, the fourth groud of demurrer, which took exceptions to only one kind of relief embraced therein was properly overruled.

2. The bill in the present case charged a wrongful and illegal taking of complainants’ property. The allegations of the bill in connection with the prayer show clearly that while the original taking and subsequent possession thereunder were without complainants’ consent, and without condemnation proceedings, yet complainants did not claim any relief on that account, but on the contrary the complainants waived the tortious acts, ratified the defendant’s possession, and regarded the taking and possession as done under the power of eminent domain. The object of the bill was not to dispossess the defendant because of wrongful taking, nor to enjoin trespasses upon or further use of the land by the defendant, but to enforce payment of the compensation justly due complainants for their land either by means of an injunction, or by charging the specific land with its payment. For the reasons hereinafter stated we do not think the remedy by injunction prayed in the bill was available to the complainants, but in considering the third ground of demurrer we will inquire whether the compensation due for the land taken by defendant and its predecessor constituted an equitable charge or lien upon the land. In the case of Pensacola & Atlantic Railroad Co. v. Jackson, 21 Fla. 146, the bill prayed an assessment of the damages sustained by a landowner by reason of the wrongful taking of his land by a railroad company for the purpose of a right of way and the operation of its railroad thereon; and that the company be enjoined from further operation of its road until the amount so ascertained was paid. It was held that the landowner by reason of acquiescence in the alleged wrongful acts of the railroad copipany had waived his right to an injunction, but that he had not lost his title to the land and could maintain an appropriate action to recover his damages. It was further held that there was no necessity of invoking the aid of a court of equity to assess his damages on the ground of irreparable injury, or for the prevention of a multiplicity of suits, because where the injury was of a permanent nature, such as that caused by the construction and operation of a railroad across land, the damages recoverable at law would include the entire injury, and therefore there could be no danger of further litigation for injuries arising from the same cause. In Jacksonville, Tampa & Key West Ry. Co. v. Lockwood, 33 Fla. 573, 15 South. Rep. 327, it was again held by this court that the entire damage done to one’s property in such cases could be recovered in a single action of trespass, and that damages in such cases should not be limited to such as had accrued prior to the institution of the suit. This court, has never determined whether a landowner, under the .circumstances disclosed in these cases, could enforce a lien for his damages, in the nature of compensation, upon the property taken. In Walker v. Ware, Hadham and Buntingford Railway Co., 12 Jur. 18, it was held by an English court that the amount of damages for purchase money and compensation, due a landowner from a railroad company, ascertained by means of an agreement for arbitration, was a lien upon the lands sold, in the nature of a vendor’s lien, and could bé enforced as such in a court of equity; that although the rights of the public should in such cases be considered, yet the railroad company could not take property without paying for it, and then say it was for the interests of the public that the property should be used by them, and so deprive the vendor of his lien, because the public could have no rights springing from injustice to others. Acting upon the intimation of Judge Redfield, in McAulay v. Western Vermont R. R. Co., 33 Vt. 311 S. C. 78 Am. Dec. 627, the Supreme Court of Vermont in Kittle v. Missisquoi R. R. Co., 56 Vt. 96, held that although the vendor’s lien had been expressly abolished in that State, yet, in a case where a railroad company had entered upon land by agreement with the owner, with an understanding that the damages caused thereby should be ascertained by arbitrators, the amount so ascertained became a charge or lien upon the land, in the nature of a vendor’s lien, which equity would enforce by appropriate proceedings. See, also, Kendall v. Missisquoi & Clyde River R. R. Co. et al., 55 Vt. 438; Adams v. St. Johnsbury & Lake Champlain R. R. Co. et al., 57 Vt. 240; Bridgman v. St. Johnsbury & Lake Champlain R. R. Co., 58 Vt. 198, 2 Atl. Rep. 467; Redfield on Railways, *240. So, the Supreme Court of Ohio, in Dayton, Xenia & Belpre R. R. Co. et al. v. Lewton, 20 Ohio St. 401, held that where a landowner agreed with a railroad company to “release the right of way, and the right to enter upon and construct its railroad” for a certain consideration, such landowner had an equitable lien, in the nature of a vendor’s lien, for the price agreed to be paid, and could' enforce it in equity by foreclosure; that the lien applied as well to the sale of an easement in, ás to a sale of the title to, or an estate in, the land. In Western Pennsylvania Railroad Co. v. Johnston, 59 Pa. St. 290, the principles upon which the landowner’s claim for compensation or damages in the nature of such becomes a charge upon the land itself even in the hand of subsequent holders, are very clearly stated, and applied in a legal proceeding. See, also, Gilman v. Sheboygan & Fond du Lac R. R. Co., 40 Wis. 653. It has been frequently held that where damages have been ascertained in the statutory mode, the amount becomes an equitable charge or lien against the lands and the improvements thereon, even in the hands of successors to the original taker, and that such lien or charge could be enforced in equity, though the courts differ as to the specific relief applicable in such cases, some holding that injunction will be granted to restrain the company’s use of the land until it pays the damages; others, that the whole line of railroad will be ordered sold; and others, that the particular portion covered by the lien only, will be ordered sold, to pay the lien indebtedness. Drury v. Midland Railroad Co. et al., 127 Mass. 571; Gillison v. Savannah and Charleston R. R. Co., 7 Rich. (S. C.) 173; Mims v. Macon & Western R. R. Co., 3 Kelly (Ga.) 333; Manchester & Keene R. R. Co. v. Keene, 62 N. H. 81, text 122 et seq.; Provolt v. Chicago, Rock Island & Pacific R. R. Co., 69 Mo. 633; Cooper v. Anniston & Atlantic R. R. Co., 85 Ala. 106, 4 South. Rep. 670; Mills on Eminent Domain, §144; Randolph on Eminent Domain §§228, 296, 385. In Organ v. Memphis & Little Rock R. R. Co., 51 Ark. 235, 11 S. W. Rep. 875, the same principle was applied to a case where a railroad company took the land without agreement, and without condemnation; the court holding that where the property is seized in invitum by the company, though constituting a trespass, yet the owner may elect to regard the act of the company as done under the. right of eminent domain, and demand and recover just compensation; that in such case the owner assumes to the company the relation of a vendor who sells real estate on a credit, and while he holds the title, equity will enforce his claim against the land, as it would a vendor’s lien. See, also, Ashley v. Little Rock, 56 Ark. 391, 19 S. W. Rep. 1058. This view impresses us as being eminently just, and correct in principle. For the transaction is nothing more nor less than an implied sale of an easement in the lánd; induced, it may be true, by the compulsory features of the power of eminent domain, the landowner knowing that he can not prevent the taking of his property under such power; and the company knowing that it must pay for it if it does take or keep it. Even where the original taking is tortious, because against the consent of the owner, and without condemnation, it is, nevertheless, necessarily referable to the power of eminent domain, whose express provisions protected and perpetuated by organic law require that compensation be made for the property taken. The company can have no just cause of complaint if the landowner ratifies such tortious taking, by electing to treat its possession thereunder as valid, apd asking to be compensated. United States v. Great Falls Manuf’g Co. 112 U. S. 645, 5 Sup. Ct. Rep. 306; Cohen v. St. Louis, Fort Scott and Wichita R. R. Co., 34 Kansas 158, 8 Pac. Rep. 138, S. C. 22 Am. & Eng. R. R. Cases 116; Longworth v. City of Cincinnati, 48 Ohio St. 637, 29 N. E. Rep. 274, S. C. 35 Am. & Eng. Corp. Cases 152. It certainly can not expect that a court of conscience will permit it to retain the property under these circumstances and yet deny the owner the right to subject'such property to the payment of the compensation rightfully due for it. The compensation due the owner is always in part, and frequently wholly, purchase money for a perpetual interest in, or easement over, the land, and inasmuch as equity always implies a lien for the purchase price upon a voluntary sale upon credit by the owner, it should for a stronger reason imply one for the same purpose, upon a compulsory sale under the power of eminent domain. The defendant and its predecessor in the present case have received the same rights and interests in complainants’ property which they would have secured by regular condemnation proceedings, i. e., the right to the perpetual use of the property for the purposes of their incorporation, for though the complainants retain ’the legal title to the land, they can not use it to oust defendant’s possession. They have ratified such possession by electing to treat it as valid in order to enforce a lien for compensation, even if they are not (under the decisions in Pensacola & Atlantic R. R. Co. v. Jackson, 21 Fla. 146, and Griffin v. Jacksonville, Tampa & Key West Ry. Co., 33 Fla. 606, 15 South. Rep. 338,) estopped by acquiescence from using their legal title to dispossess the defendant. In cases of this character we think the landowner holds the legal title as security for the payment of the money due him for compensation, and that he may resort to equity, in the first instance, to establish the amount of his recovery, and enforce the same by charging the .company’s interest in the land and the improvements thereon for its payment. 3 Pomeroy’s Eq. Jur. §1260 et seq., and note 1 on page 1941. Our statutes providing proceedings for ascertaining the damages in eminent domain cases, do not authorize the landowner to begin the proceédings. The company only can become the actor thereunder. They therefore do not furnish an adequate and speedy legal remedy to the landowner for the collection of his compensation. The remedies by injunction and ejectment are not available to collect the damages, but only to recover possession of the property, and according to our previous decisions cited above, they would not be available for any purpose after the landowner had acquiesced in the building and operation of the road. It is true that at law in an action of trespass, the amount of the landowner’s damages can be ascertained and adjudged against the defendant, but the law can neither declare that its award is a specific charge upon the land, nor enforce the implied lien or equitable charge against the specific property. This charge upon the land being a creature of equity, is properly enforced in a court of equity. We think the third ground of the demurrer was properly overruled.

The bill alleges that the original taking of complainants’ land occurred about eight years before the filing of the bill. As the demurrer does not present the question, we do not consider whether the remedy here sought'was stale, or barred by limitations.

3. We do not think the final decree was justified by the facts of the bill; nor do we think that payment of compensation for complainants’ property should be coerced through the medium of an injunction, where the complainants have for eight years acquiesced in the taking of their property without objection, and now ratify same by asking to have their damages assessed and enforced as an equitable charge or lien upon the land. It has been held by the English courts that where a landowner has an equitable lien as security for the purchase money of lands acquired by railroad companies for corporate purposes, he may enforce such lien in equity by an order to sell the property covered by such lien for the payment of the lien indebtedness, but that an injunction will not be granted to restrain the operation of the company’s road until payment of the amount due the landowner. Munns v. Isle of Wight Ry. Co., L. R. 8 Eq. Cases, 653; Lycett v. Stafford & Uttoxeter Ry. Co., L. R. 13 Eq. Cases, 261. This view commends itself to our judgment, especially in view of our previous decision in the case of Pensacola & Atlantic R. R. Co. v. Jackson, 21 Fla. 146, a case soméwhat similar in its main facts to the present one, so far as the relief by injunction is concerned.. We there held that the acquiescence of a landowner in the illegal taking of his land, for a period of nine months, would debar him from an injunction restraining the operation of the company’s road, though he was not barred of other remedies to collect his damages.

The final decree of the coúrt below is reversed, with instructions to ascertain, either from the evidence already taken in the cause, or from other evidence to be taken if desired by complainants, the amount of compensation due complainants; to declare same a lien upon the land taken, and .to decree a foreclosure of such lien and sale of the land in default of payment of the amount so ascertained, and for such other and further ,proceedings as may be consistent with this opinion and chancery practice.