The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1884-02-05


and the claim a,lluliCatcd by the court " = mol
right Of entry Tor the purpose ct survey oi i"''
ton of the line al contemplated road, IN" ~ ~
while the iujnncinnal order first granted ard
subsequently dissolved was against any lnrthci
entry the further entry contt mplnic,i WAS ore
for the purpose Of construction at the road; SAL
its permanent use 10y the company, such ~ ~
contemplated by The iIh subdivision of The a't
of the Legislature controlling the subject it''
case therefore does moi involve n drciSion "E 'hr
question whether such corporation has me 3tgHt
OF entry upon and passage over the lanai of
plaintiff inr preliminary surveys and loCai m al
the line al lis road such rs Is authorized by Nutir
vision first OF section ten OF the statute rrtYTiti
to- Between the entry tor construction anti n}t:
and the entry for location and survey the statute
itself makes distinction For The hrst tffm~
templates compensation. For The Latter NOS" =
provide. except such as Is embraced in the itn.l
appraScmcnt Tor the taking
The first general question here Involves Is
whether this corporation has the power To paki'
a compulsory purchase OF the land of the cif Hrb
for the purpose {" carrying ont The objects - ~
charter.
Under the power of eminent domain the
sovereign may make compulsory WlrciIiss 81
the property of the citizen when SuciI properly
is to be appropriated Ia public purpose or list.
but such compulsory purchase, or taking nc II IL
called cannot he made even by The ~ovcrs'igh
without Just compensation Such is the pro
vision of our Constitution, which is a limit'sii"n
upon all Departments ot the government tn-,
we understand, is not here denied; but ii II
were should spend no time in hunting t;tse
or precedent to sustain principle 80 university
admitted. Again. that which seeks to cxc''cise
this power here is u railroad company, invested
with the usual franchises 10 he a cnrp"rati,. Ia
have the rights and duties ol a common or pgldic
carrier with authority Ia construct line Ot E1i
way for the benefit of the public in tiFprdin.; adj
ditional facilities of passenger travel ana frci"hi
traffic. That this is public purpose III use IN
which the land oi the citizen may, 10 the cX:rnt
il is necessary io accomplish such public par
pose be condemned, is also 4 legal proposition 81
we'll established in this country that II l. c' r
tainly unnecessary 10 do more than state that
such is the law This leads rs to the discussion
Of the true question IN this case, and that qa's
ton, in the tngltgc ot the corporation here, -
whether the act OF the L.Si,l.lurc ualr which
such claim is here IN L. assures to 'hr owner f
the private property prop Sci 10 d. tk"n tiIc
Just compensation contemplated by the Cpn~jl-
tuition, aS II is admitted that this cprporiiinn stn
be made the subject OF tn. grant OF ! power -
thus take the land, and TINT the proper dcpai
ment al the government 10 confer Ia" powt'f =
the legislative department thereof.
Sections H. -. IT, II AL Is, Of Crrp'rr 49,:
Laws. grant 10 the corpMali"n the p 'wrr Ia p
quir'. titles Ia land required Tor its purp 's':~
we'll ~ h+ m amer ~ its exercise IA y cas-: It
the char .ci"r now before The cpIrt. The cn'n
plflN l. rt1Ur' 10 He Il pctlllt'O pr lNlnT IN III
appon imcnt ri commissioners al apprIiS II by
The Circuit Court, describing the Ian ,lcht to
be acquired, and alrr prescribing vart'uI pre-
cccdin-s, among winch IS notice and right 'n
hearing hy the parties Interested, tn act fsr''-
viLrs (Scc ~ that "thr report OF hc commissions
crs shall be recorded bv tn" Clerk of tn ''nI5ri,
in whose Office til" sam is flied i'll the lllrm-,it
book OF slil court aud ut any time after Ill
Ing thu SAM the railroad or canal company II; 81
pay Ia such owner or owners of the lands -,
taken, Ia the Clerk OF said court, for the &c
OF sad owner or owners, the amount awarded i'Y
sud commissioners, and il necessary writ sci
assistance shall hr issued b. IN" said Circnl
Court To I,ilt such company in pp~srs>inn." Th.S
Is the compensatory clause for he taking autlsI,
lZrl The act authorizes the company TO pTr
c".l with HE construction and opera ion of -"
road, either before The comm nc,nrnt of or
prnlng Sl'h pro &c linc> in me Circuit CouJ
:" obtain Titles ~ the lGnl tpnr lhe line or rpn''
ot H. ROAD, and there is no provision in The ~
authorizing the Ian. !-oV nrr 10 institute the pr,
4erling Dticr provisions "i HE acl regulating
proceedings 10 acquire ttIr1, under circumsttp
cc~ no. existing IN this ct~'. aud which do no
apply Ia il. are called 10 nur attention hy the ap
pcc,. hut Il. 'h..y Ito not contrnl This prnccrlir.
or upon thoii lace or ascending Ia their plnIu
letter AMI intent purpurt IN any manner to ait,:,
the present case il Is only nee Ss;trv to mcntlnn
their character These sections prescribe
method Of proceeding, where the company siitl
not nave Nfl0ir"l IilIf u llnt upon Wn't'H
they have constructed their track, or il after
attempt To acquire 'l", til" title ATTEMPTED /"
be- acquired is detective, or HE title is in a trtt
zee OF an infant ar jiln' without p,wcr sale
From THIS recital ii The PROVISIONS of the az
It is seen thai - II; a. Me mati,.r OF mikiug
compensation Ia ti. nWn"r is concerned the sl;tt
NE requires nothing 'n"r" tran Maf" Mt rei11i
RI Mc commissioners vi.,N .. t,.r.lrid hy tho t2e%{
II III, Cpurt IN ,rl.,Ss opflY III. S,nr is f+dio H..
j"'lg"'n' >"ol 81 sail ror'L' 1t is said thai
Ibis amounts To y Judgment OF The court.
W" do not think That this is 80 We think
looking Ia this statute ~ An cnit,.ly that tile
Legislature, in directing the rccnrlin4c of tia.
award in the Judgment book, did not intend IT.
III Ike il a judgment any more than direction
20 record il in the deed ~ execution book woutG
have manifested m intention To make it n deed
or rX"cutiDn Not only is His So but The pro
vision that the corporation may AT any tn,c
after filing The award ply the sum awarded IA
the owner seems Ia cOnlrm ,I1tr process bt
which any judgment before the taking is con
Slmmated by absolute appropriation can be er
forced at The instance ol the land owner, and VIZ
think il clear from the terms OF this section a.
and the provision in section II, which provil,>
that III" corporation may proceed VIII thr
construction AMI operation Of It's road, that j.
to il complete taking, even before The fling al
: he petition tn ascertain the damage, that ttt
Legislature contemplated here nOthing except
what il in words expressed; and acting upon the
idea that the corporation would pay after tli" |
filing of The report tiNinG its am"urt il did no'h
in" more than iX any TIM" a'lcr snrh filing !
rs the date upon wine il might 10 81. Where |
The authority in this Il tulr clSsW here tor Tho
clerk, liter r'c"rnt ~" report in The iu lgmrnl
book. ali III the iaw directs IT, follow such I
record with y c2nSti-riftm cv' iar rNrhim against |
the corp rltlpn nS Ia IN tlm tg'S awarded: IL |
Is true - crntcnd"l ~ ia" corporation here that
the | la scion ni 'hr nci provides that from
I be time 81 filing In" y ii.',n the proceedings |
shah be considered AT pending IN the Circuit |
Court ni such county. ana t. The extent that |
-lcl proccr. !in-,~ prescribed can he givcn |
rilt.r ~ ndcil proccc linrS, viii do |
Sach Is oar duty. Bat surely if ga b''ynn,. |
tins, it Ia HE plain terms oi The law and |
lnthNriz.. other AMI a.iIitnntl proceedings an |
those, too. ni lh" most important chatlricr do
MOI j came "a that ext nj ,gI~ ttori aud in
,itcti :r!l - .1d imrn ihS Stautr> Judicial
it- -! a. - tIr '\t,t "a ii ii exists ANYWHERE
Nh..u cl'.!fiF shown r. liil" less than "A crime
lNi thr''j Il, more Emporium org mic limi,a-
lion sttACt al tnN respect than til which in !
unmt~i> ~" trr'n, ,I}-. Ia II hciai tribunals |
}.. ia Il. - = ''\.r~'. 'hr function. ol ih, leg
l-lIllVr irptr}n 'll Ul til' government Tue
simple film ii r'.plr 81 t'.' commissioners
whether II To- il an hook or inoih.r does moi /
m any ScnSr amount ln IN nc in An tfvtI LltnfHU
;hc tInuInl 81 cpmprSl non ~ ii YIN the snnunl
nl the claim nr debt \ taking of private
property upon such simple ndng nt the Amount
ri compensation ,lu" - ci.'ltiv takinr al |
prlvai" property without jlst c''nprnSttitm'
In view at The fact that our conclSion Is the |
same, viewing this case in Slrh asp ct, ln.l in |
view OF The :tlliiioutl fac, thli This cast. has,
been argued in that light, We Will, however, treat