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

January Term, A. ID. 1854.

January Term. A. ID. 1854.
Paran Moody and Mary L. Moody his Vie
Appellants, vs.. The Jacksonville, Tampa and
Key West Railroad Company, Daniel G. Am
bier, James T. Tallafcrro aud j. T. Cnghan
Respondents.
l. The State has the right to make a compul
sorry purchase of or to condemn the property of
the citizen for n public use purpose, just com
pensatien being made to the citizen for 1t.
2 Such right the State through the Legislative"
department of the government may grant to an
incorporated railway company having The uSurl
franchises and duties attaching To such compl
MES, to the extent that the property is necessary
for the use OF the corporation in accomplishing
the purposes of its creation. The statute, how
ever, must provide just compensation Ia the ciii-
zen for his property so authorized I" be taken.
3. Neither an award of damages, nor jule
ment against corporation for damages aScrl-
tained or to be lsccrtaincd by commissioners,
is a just compensation 10 the citizen for the ap-
preparation Of his property by the corporation to
its use in the construction of its road.
4. The designation OF the corporation in whom
such right to condemn for public use is To be
vested the method of condemnation and the fix
ing the nature and extent OF the compensation 10
be made for the property powers vested OK
clusively in the legislative department oi the
government
5. In this case an entry for the purpose of
continuing IN unlawful appropriation or taking
was enjoned. Subsequently the injunction
was dissolved upon the corporation obtain
ing bond approved by the Judge under which
the value of The property TO be taken was Sc
cured to be paid after apprascment to the land
owner. leu: In the absence OF Legislation @!"
ing such right To the corporation, that the court
had no power to authorize a compulsory pur-
chase by il or to prescribe method OF rnnlcin-
nation, or fix IA compensation just or I'M nSt that
these were legislative " functions, which no part
OF the judicial department of the government
could exercise unless the power so To do was "cN-
pressly provided for by the Constitution" The
last clause of Section y of the Declaration Of
Rights, Article 3 of the Constitution, AMI 50
much of Chapter 1887 of the Laws, as proposes
to vest in railroad corporations the right 10 con
denim property and to fix the compensation to h"
made. construed.
WEsTCoTT, j., delivered the opinion of the
cour;
The Jacksonville, Tampa and Key West Rail
road Company, through Amber and Others its
agents AMI contractors, without the consent of
the plaintiff, Mrs. Moody, and without previous
condemnation OF her land, had not only located
their railroad over her land, but had entered
upon it and were in the act of appropratiug it
to the construction of its road hv telling trees
digging excavations and throwing up embank
mens. The court, upon the bill OF plaintiffs set
ting up these facts, plaintiffs alleging also that
they did not believe said corporation would have
property that COULD be reached by Judgment at
law for damages, enjon the defendants from
tering upon the land, and the corporation and
Its agents from telling trees, cutting excavations.
throwing up embellishments, or from proccc,lin.
with the building OF the road on said land until
the further order OF the court. The corporation
and its agents answering admit that after locn
ton OF It's line through the land described they
have entered thereon with their labnrrrs that
they have made some excavations AMI thrown
pmIInnkmpNtS the Il the
structOn of the said railroad, as the said road
crosses the said lands within The limits of the
statutory width allowed, and affirm Il right To do
80 under the laws of Florida and their charter.
They admit that they have NOT paid Tor the said
land or agreed to pay any specific sum therefor,
and affirm that they have exhausted every rrlor.
TO do so without, success. They answer further,
that anterior Ia the filing of The bill proceedings
10 acquire title L. SO much ot said land rs il uc-
cuplcti by said railroad had been Instituted, and
that commissioners had been appointed under
the statute to "appraise the compensation 10 10.
made 10 complainant, and that complainant. T.
Moody, had actual knowledge and notice oI hr>"
proceedings" They say further, thai >iuct The
filing of the bill plaintiffs have been servrd with
notice by the commissioners Of The place at which
they would meet 10 consider the amount OF com
pensation To which plaintiffs are entitled, and Al
lege that the company is The owner of franchise
OF great value, Ol about twelve miles nl graded
track IN Duval county, and some iron, quantity
not stated, soon Ia arrive io iron the same.
They say further, that before the bill filed
they offered the compliments L good and sutf
Gent bond rs security TO them Tor the. payment
OF the compensation which may be awarded for
the lands appropriated, Ia he determined 10y The
commission. Defendants claim the right "to
proceed with the construction of their road either
before or after the commencement of or pending
such proceedings in the Circuit Court for assess
ing the compensation To COMPLAINANT but offer
triv cpcuritV lnr the IN nj mel
satiOn as may be awarded in the event such shall
be held To he necessary, and also tn comply with
such equitable requirements as the court may
direct and close their answer 10y stating that there
is no case made by the bill, and by claiming the
same benefit of this fact M if they had demurred
to the bill. There is an affidavit accompanying
the answer which gives particulars of repeated
attempts to adjusi the matter with plaintiffs. 1t
more than sustains the answer.
Upon motion of defendants the court directed
4" that the said Injunction be dissolved upon the
execution OF n good and sufficient bond to be
approved by this court payable TO the said com
painants, in the sum of three thousand dollaIs
upon the condition that the said jacksonville,
Tampa Il Key West Railroad will pay unto the
said cOmplainants the compensation 10 which
they may bc entitled for the taking dnd appro
prtating" Glalics by this COURT "by the said
railroad company, of any of the lands of the
compliments in their said bill, mentioned by the
award of the commissioners appointed or TO be
appointed to consider, ascertain and fix the same
under the provisions of the act of the Legislature
OF the State of Florida entitled Ian act tn pro-
vide a general law for the Incorporation of
railroads and canals" approved February 10,
1874. A bond approved by The Judge and exc
cuted by parties other than the corporation, pur
porting To be in accordance with this order, was
filed and both parties treating the injunction as
dissolved the plaintiffs appealed to this court.
This case must he considered first with reference
to the order granting the Injunction, and second
In reference I'd the order allowing its dissolution