Hopson v. Louisville, New Orleans & Texas Railway Co. ( 1893 )

Campbell, C. J.,

delivered the opinion of the court.

The jury was not properly instructed.

The measure of the “due compensation” -to be awarded the owners of the land was not in any way affected by their recovery in the action of trespass for unlawfully entering upon the land, and building and operating the railway. That action was for wrongful acts. This proceeding is to confer, in a lawful way, the right to continue the railway on the land. After the recovery in the action for damages, the railway company had no right to continue on the land. It had been recovered against for being unlawfully there, and for its unauthorized acts, but did not thereby secure any right. It still had the right to acquire a right of way, and thereafter enjoy it unmolested by the owners of the land; and that is what this proceeding is for, in which the owners are entitled to compensation, as if their former action had. never been instituted. The two proceedings are distinct and different things, and to this effect are our decisions, which ■clearly draw the distinction.

Reversed, and remanded for further proceedings in accordance with this opinion.