Pensacola and Atlantic R. R. Co., Appellant, vs. Lewis Jackson, Appellee, 21 Fla. 146

The Chiee Justice delivered the opinion of the court: Bill for injunction and relief filed January 25,1883.

On and-before the tenth day of April, 1882, Jackson was the owner of a town lot in the town of Milton, Santa Rosa county, on which was a house, fruit trees and fences, and .on that and on subsequent days the railroad company, claiming to be authorized by its charter, entered upon the premises, and. ousted complainant’s tenant without notice and appropriated the middle portion of the lot as a road bed of its railroad, tore away the fences, dug up the trees and removed the dwelling-house, and has constructed a railroad across the lot, and trains are daily running, over the same, yet prior to such occupation no agreement had been made or sought to be made as to the value of the property so taken, or the damages sustained by such taking, and ap-. propriation by the company, though complainant was present, in or in the vicinity of the town of Milton, at the time.

After this destruction and appropriation of his property the complainant was notified by the Sheriff that a jury had been summoned by virtue of the charter of the company, (ch. 3335, act of 1881, sec. 9,) to fix his damages. Complainant appeared before the jury and asked to be permitted to make a statement in regard to condition and value of his property, but the jury refused to listen to him and proceeded to assess his damages at twenty-five dollars, whereas the rental value was five dollars per month. The company afterward tendered to him the twenty-five dollars which he declined.

Complainant insists that the taking of his. property without his consent, and without making, adequate compensation, is in violation of the Constitution. He asks that an inquiry be made by a master to ascertain his damages, and that the defendant be enjoined from the use of his property by running trains over it, or otherwise, until the payment of the sum to be found by the master for his damages, and for other adequate relief. Defendant demurred to the bill for want of equity. The demurrer was overruled and defendant appealed. The ninth

section of the act incorporating the Pensacola and Atlantic R. R. Co. approved March 4, 1881, provides that when a question of right arises and the company cannot agree with the owner of the land the works of the company shall proceed as though there was no disagreement. The Sheriff at the request of either party shall summon a jury, who shall assess the damages to be paid by the company, after being sworn, &c., which assessment shall be final, unless an appeal shall be entered in the Circuit Court. This is the substáuce of the provision. Measured by the rule announced by the court in Moody and Wife vs. The J.

T. & K. W. R. R. Co., 20 Fla., 597, the act mentioned so far as it seeks to subject land under the power of eminent domain is ineffectual and void. It provides no means of enforcing payment for land taken or damages in consequence of the taking and destruction of private property. The invalidity of the

section is conceded by defendant, who yet insists that the complainant has no remedy in equity, but only an action at law for the injury. Had the complainant, who was present at the time the property was taken, at once taken proper steps to arrest the act of the company in taking possession of and building the road over it, as was done in the Moody case, he might have had his injunction. But this complaint does not allege that he took any steps whatever, not even by a mere objection, to prevent the defendants constructing their road across his property.

He was notified that a jury would assess his damages, and he appeared before them, making no objection to the proceeding, and endeavored to show how and to what extent he would be injured.

The jury may have acted unfairly and arbitrarily refused him a lawful right, yet he did not object, but sat down in his tent and witnessed the occupation of the company in expending their money, erecting their railroad structures, laying their tracks, and running their daily trains over them for over nine months before commencing this suit, The only thing now complained of is .that the company has not offered him enough money to compensate him for the loss of his property. Redfield, O. J., an authority upon railroad law, in delivering the opinion of the court in McAuley vs. W. Vt. R. R.

Co., 33 Vermont, 311, 321, says: In these great public works the shortest period of clear acquiescence, so as fairly to lead the company to infer that the party intends to waive his claim for present payment, will be held to conclude the right to assert the claim in any such form as to stop the company in the progress of their works, and especially to stop the running of the road after it has been put in operation, whereby the public acquire important interests in its continuance. The party does not, of course, lose his claim or the right to enforce it in all proper modes.

He may possibly have some rights analogous to the vendor’s lien in England, and here until the Legislature cut it off. But it is certain, according to the English decisions, that he cannot stop the works, and especially the trains upon the roadj if he has, in any bense, for the shortest period, clearly given the company, either by express assent or by his silence, to understand that he did not intend to object to their proceeding with their construction and opera* tion. ■’ This doctrine is fully sustained in Hentz vs. Long, I. R. Co., 13 Barb., 646, 655; Bassett vs. Salisbury Manf. Co., 47 N. H., 426; Goodin vs.

Cin. & W. Canal Co., 18 Ohio St. 169 ; Eaton & McMahon vs. N. Y. & L. B. R. R. Co., 24 N. J. Eq., 49; Picket vs. Ridgefield Park R. R. Co., 25 Ib., 316, 323, (cited 3 Myl. & Cr., 784; 33 Beav., 290; 4 Railroad and Canal cases, 69;) Attorney-General and Del. & B. B. R. R. Co., 27 N. J. Eq„ 124 ; Meredith vs. Sayre, 32 E. J. Eq., 557 ; Provolt vs. Chicago & R. I. & Pac. R. R. Co., 57 Mo., 256 ; Pettibone vs. LaC. & M. R. R. Co., 14 Wis., 443, 447; Sheldon vs. Rockwell, 9 Wis., 180 ; Carson vs.

Coleman, 3 Stockton, 106 ; Pierce on Railroads, 169, 170, and notes; and it does not alter the case that complainant at the time when the lot was taken supposed the R. R. Co. were entitled to enter and take the land under the statute. Greenhalgh vs. The Manchester & Bir. R. R. Co., 3 Myl. Cr., 784. As we understand the facts from the bill the complainant is not entitled to an injunction to stop the running of the defendant^ cars over his lot, after having acquiesced in the construction of the road by delaying to proceed against it until it had completed the structure with full knowledge of all the tacts.

The taking possession and building the track by defendant, does not divest the complainant of his title to the land. He has a right of action against the company in appropriate form. Pierce on Railroads, 229, 230.' But he has waived his right to enjoin use of the railroad in view of the public interests involved. There is no ground for invoking the aid of a court of equity in a case of this character.

In regard to private trespasses, the interference of courts of equity by way of injunction is founded upon the ground of restraining irreparable mischief, or preventing multiplicity of suits or suppressing interminable litigation. 2 Story’s Eq. Jur., §925. But where the injury is of a permanent nature, such as the flooding of land or the laying of a railroad, the damages recoverable at law will include the entire injury and in that case there is no danger of further litigation for injuries arising from the same cause. Pierce on Railroads, §230, and note 4. The decree overruling the demurrer must be reversed.