66

The phrase owner of any real estate" includes a mortgage, and if not made a party to the proceedings he is not bound thereby. Severin v. Cole, 38-463.

This section refers to land taken and appropriated for right of way. The provisions of § 623, with reference to assessing damages to the abutting property owner by reason of the construction of a railroad track along the streets of a city, do not authorize such abutting property owner to have his damages assessed in this manner. Stough v. Chicago & N. W. R. Co.,

71-641.

Respective interests of joint owners. Where the respective interests of tenants in common appear of record or can be conveniently ascertained, the company, if it applies for the appointment of commissioners to assess damages should by its application cause such damages to be assessed separately to each owner. Ruppert v. Chicago, O. & St. J. R. Co., 43–490. A sheriff's jury cannot apportion the damages between the owner and the person holding a mortgage upon the land. They are to estimate the right of way only, and where the mortgagee is not made a party he may voluntarily assert his right to the money in the hands of the sheriff. Sawyer v. Landers, 56-422.

Enforcement of Payment. Where it had been agreed that the compensation to be paid for the right of way should be fixed by a third person, and under such agreement the railway company went into possession, but the amount of compensation was never fixed, held, that the land owner might, by condemnation proceedings, enforce payment of the compensation to which he was entitled. Corbin v. Wisconsin, I. & N. R. Co., 66–269.

The agreement between the parties in such case as to the amount of damages might be interposed as a defense to the claim for damages in excess of the amount agreed upon, but such agreement need not be specially pleaded. Ibid.

New assessment. Where, upon condemnation of a right of way over agricultural college land, the damages assessed were deposited with the sheriff, held, that without return of the amount thus deposited the grantee of the land could not have another assessment of damages for the use of the premises by another railway company without a return of the money thus deposited. Chicago, M. & St. P. R. Co. v. Bean, 69–257.

Even though the land owner is seeking to set aside a deed previously made, on the ground of fraud or otherwise, he cannot disregard the previous transaction and have a new assessment. Council Bluffs & St. L. R. o. v. Bentley, 62-446.

A land owner who has received compensation which has not been refunded by him cannot recover the second time. Dubuque & D. R. Co. v. Diehl, 64-635.

Homestead exemption. Damages assessed for a right of way over the homestead are exempt from execution to the same extent that the homestead is. Kaiser v. Seaton, 62-463.

Liability of commissioners. The commissioners should not be put to costs for doing in a regular and legal way what they are required to do, and in a certiorari proceeding to review their action an answer setting out the notice in the proceeding under which they are acting is sufficient. Forbes v. Delashmutt, 68-164.

Dismissal of proceedings. Where the company has not entered upon the land to construct the road, no right to the amount of damages assessed becomes vested in the land owner until the decision on the appeal, and pending the appeal the company may dismiss the proceedings Burlington & M. R. Co. v. Sater, 1-421.

A proceeding for the condemnation of land for a railway simply fixes the price upon payment of which, within a reasonable time, the company may take the right of way. The company cannot be compelled to pay the damages and take the way, but may waive the rights acquired by the proceedings, being liable, however, for costs and for any damages actually suffered by the land owner. Gear v. Dubuque & S. C. R. Co., 20-523.

Judgment for the amount of damages, even though entered in the usual form of a judgment in an action of debt, passes no title to the company be

fore payment, nor does it compel the acceptance of, or payment for the land. Ibid.

Where, in proceedings to assess the damages for a right of way already occupied, the amount assessed is paid to the sheriff, and an appeal is afterwards taken, the railroad company cannot, by abandoning its right of way, defeat the land owner's right to the amount so paid, but such abandonment may be considered in determining the damages to which the land owner shall be entitled upon the trial of such appeal, and it would be error to enter a judgment for additional damages contingent upon the re-occupation of the land by the company; and held, that such re-occupation should not be made without a new assessment of damages. Hastings v. Burlington & M. R. R. Co., 38-316.

A proceeding instituted by a railway company to condemn a right of way may be dismissed as any other action without prejudice, and will not defeat a subsequent proceeding of the same character to condemn the right of way over such property. Corbin v. Cedar Rapids, I. F. & N. W. R. Co., 66-73. Remedies of land owner. The proceedings may be instituted by the land owner after the railway is completed. Hibbs v. Chicago & S. W. R. Co.,

39-340.

The method provided for ascertaining and compelling the payment of the damages is exclusive, and none other can be pursued. But the owner is not deprived of his right to bring action for the possession of his property when taken without compensation. Daniels v. Chicago & N. W. R. Co., 35-129.

A party has, by appeal, an adequate remedy against any irregularities which may occur in the proceedings or any injustice which may be done him in the award, and if he has personal notice this remedy is exclusive as to all such matters, and he cannot rely upon irregularities as a ground for restraining the construction of the road in accordance with such proceedings. Phillips v. Watson, 63-28.

If the company enters upon the land before the damages are paid it may be treated as a tresspasser. The owner is not compelled to resort to an injunction or an action for the amount. Henry v. Dubuque & P. R. Co., 10

540.

Where the occupancy of a right of way is commenced and continued without right, the company is a mere trespasser, and the land owner or his grantee may maintain an action for damages for the occupation of the land. Donald v. St. Louis, K. C. & N. R. Co., 52-411.

If the company enters before payment of the damages assessed it may be held liable in damages as for a tort. Dimmick v. Council Bluffs & St. L. R. Co., 62-409.

In action to recover possession of land occupied without condemnation by the company, plaintiff may recover damages for the use of the premises. It is not necessary that such damages be assessed in a condemnation proceeding. Birge v. Chicago, M. & St. P. R. Co., 65–440; Rush v. Burlington, C. R. & N. R. Co., 57-201.

On failure of the company which is already in possession and use of the premises for right of way to pay the amount assessed, it may be restrained by injunction from further using the premises. Henry v. Dubuque & P. R. Co., 10-540; Richards v. Des Moines Valley R. Co., 18-259.

The same right to an injunction will accrue to the land owner in case he institutes proceedings for assessing the damages. Hibbs v. Chicago & S. W. R. Co., 39-340.

The land owner is not estopped from maintaining proceedings to recover compensation for land taken for right of way by the fact that he has allowed the railway company to go upon and use his land for that purpose, and make improvements thereon. Ibid.

In such cases he may maintain an injunction restraining defendant from further using the right of way without making compensation, or maintaining ejectment for the possession of the premises, if it appears that damages have been assessed and nothing but payment is wanting to entitle the company to the continued use of its right of way. It is proper to provide that no execution for the possession of the premises under such circumstances

shall issue in the action of ejectment if the damages are paid within a limited time. Conger v. Burlington & S. W. R. Co., 41–419.

By agreement of parties an appeal was taken from the assessment of damages and judgment for the amount assessed was entered in such appeal, and execution thereon was stayed for two years, and the railroad was constructed through the property without objection. Held, that upon failure to pay the amount of the judgment at the time specified, the owner could proceed by injunction to restrain any further use of his property until compensation should be made. Irish v. Burlington & S. W. R. Co., 44–380.

A railway company may be dispossessed of its right of way by a judicial sale in a proceeding to enforce the land owner's right. So held where the owner of land had agreed to give the right of way in consideration of the performance of certain conditions by the company which had not been performed, and action was brought by the owner to foreclose his vendor's lien. Also, held, that the vendor's lien in such case was superior to the title of the purchaser of the railroad at foreclosure sale. Varner v. St. Louis & C. R. R. Co.,55-677.

All questions involving the ownership of the right of way can be considered and determined in the condemnation proceedings, and a court of equity will not interfere to restrain the prosecution of such proceedings on account of a claim that the right to damages is barred or has been abandoned. Keokuk & N. W. R. Co. v. Donnell, 77–221.

Deposit of Damages assessed. The fact that the company deposits the sum found due with the sheriff will not prevent the land owner from recovering, on appeal, the actual damage to the property and interest thereon from the time it is taken, even though the amount of the original damages is found to be less than that assessed by the sheriff's jury. Noble v. Des Moines & St. L. R. Co., 61–637.

The sheriff, in receiving the money deposited as security cannot be regarded as the agent of the owner, but he is the agent of the railway company, and if, through the unfaithfulness or mistake of the sheriff, the money is lost before reaching the hands of the land owner, such loss does not fall upon him but upon the company making the deposit. White v. Wabash, St. L. & P. R. Co., 64–281.

For moneys paid to a sheriff by the company the land owner may maintain action against him at any time after the expiration of the thirty days allowed for appeal. The statute of limitations, therefore, run against such an action from that time, and the fact that the land owner has refused the money and attempted by injunction to restrain the taking of his land will not prevent the running of the statute. Lower v. Miller, 66-408.

1909. Application; notice. 1245. The application to the sheriff shall be in writing, and the free-holders appointed shall be the commissioners to assess all damages to the owners of real estate in said county and said corporation, or the owner of any land therein, may at any time after their appointment, have the damages assessed in the manner therein prescribed by giving the other party five days' notice thereof in writing, specifying therein the day and hour when such commissioners will view the premises, which shall be served in the same manner as original notices. [R., § 1318.] Where a mortgage upon the property appears of record, notice must be given to the mortgagee, or he will not be bound by the proceedings. Severin v. Cole, 38-463. And see Cochran v. Independent School Dist., 50-663.

Where the proceedings are based upon the assumption that the owner is a non-resident and unknown, such assumption will be deemed true on certiorari unless the contrary is made to appear. Everett v. Cedar Rapids & M. R. R. Co., 28-417.

The notice must name the person whose land is affected by the proceedings. It is not sufficient that it be directed to all persons having an interest in certain described property. Birge v. Chicago, M. & St. P. R. Co., 65-440. Where a right of way over agricultural college land in possession of a lessee was condemned in proceedings to which the college was a party, and

afterwards, the lessee's right being forfeited, the premises were sold to another, held that the condemnation preceedings were binding on the subsequent purchaser of the premises. Chicago, M. & St. P. R. Co. v. Bean,

69-257.

The application need not describe the entire premises which are to be considered in estimating the damages. See Notes to § 1918.

1910. Minor or insane owner. 1246. If the owner of any lands is a minor, insane or other person under guardianship, the guardian of such minor, insane or other person, may, under the direction of the circuit [district] judge, agree and settle with said corporation for all damages by reason of the taking of such lands for any of the purposes aforesaid, and may give valid conveyances of such land. [R., § 1316.]

1911. Non-resident owner. 1247. If the owner of such lands is a nonresident of the county in which the same are situated, no demand of the right of way or other purpose for which such lands are desired, shall be necessary, except the publication of a notice which may be in the following form:

NOTICE. For the appropriation of lands for railway purposes. To (here name each person whose land is to be taken or affected,) and all other persons having an interest in, or owning any of the following real estate (here describe the land by its congressional numbers in tracts not exceeding onesixteenth of a section, or, if the land consists of lots in a town or city, by the numbers of the lot and block). You are hereby notified that the has located its railway over the above described real estate, and desires the right of way over the same, to consist of a strip or belt of land feet in width, through the centre of which the centre line of said railway will run, together with such other land as may be necessary for bermes, waste banks, and borrowing pits, and for wood and water stations (or desires the same for the purposes mentioned in sections twelve hundred and forty-two, and twelve hundred and forty-three of this chapter [S$ 1905, 1906], as the case may be), and unless you proceed to have the damages to the same appraised on or before day of A. D. 18- (which time must be at least four weeks after the first publication of the notice), said company will proceed to have the same appraised on the - (which must be at least eight weeks after the first publication of the notice), at which time you can appear before the appraisers that may be selected.

day of

agent.

Railroad Company.

Where the proceedings were based upon the assumption that the owner was a non-resident and unknown, held, on certiorari, that the contrary not being made to appear, the proceedings were not irregular, Everett v. Čedar Rapids & M. R. R. Co., 28-417.

The notice must name the person whose land has been taken or affected. It is not sufficient that it is directed to all other persons having an interest in the property described. Birge v. Chicago, M. & St. P. R. Co., 65–440.

1912. Notice published. 1248. Said notice shall be published in some newspaper in the county, if there be one; if there is none, then in a newspaper published in the nearest county through which the proposed railway is to run, for at least eight successive weeks prior to the day fixed for the appraisement at the instance of the corporation. [Same, § 3.]

1913. Appraisement. 1249. At the time fixed in either aforesaid notices, the appraisement may be made and returned in tracts larger than forty acres, and all the lands appearing of record to belong to one person and lying in one tract may be included in one appraisement and return, unless the agent or attorney of the corporation, or the commissioners, has actual knowledge that the tract does not belong wholly to the person in whose name it appears of record; and in case of such knowledge, the appraisement shall be made of the different parcels, as they are known to be owned. [Same, § 4.]

That damages to the entire premises of a property owner, and not merely to the government subdivision through which the road passes, are to be assessed, see notes to § 1908.

1914. Dwelling-house, garden, or orchard. 1250. If it appears from the finding of the commissioners, that the dwelling-house, outhouse, orchard, or garden, of the owner of any land taken will be overflowed or otherwise injuriously affected by any dam or reservoir to be constructed under such section twelve hundred and forty-two of this chapter [§ 1905], such dam shall not be erected until the question of such overflowing or other injury has been determined upon appeal in favor of the corporation. [12 G. A., ch. 117, § 3.1

1915. Talesmen. 1251, In case of the death, absence, neglect, or refusal, of any of said freeholders to act as commissioners as aforesaid, the sheriff shall summon other freeholders to complete the panel. [R., § 1319.] 1916. Costs. 1252. The corporation shall pay all the costs of the assessment made by the commissioners, and those occasioned by the appeal, unless on the trial thereof a less amount of damages is awarded than was allowed by the commissioners. [R., § 1317; 14 G. A., ch. 119.]

Unless the court is asked to make an apportionment of costs complained of, error in not making such an apportionment cannot be made on appeal. Cox v. Mason City & Ft. D. R. Co., 77-20.

Where the damages allowed on the appeal are less than those awarded in the assessment, in the absence of any showing that either party has made an offer, the costs should be apportioned. Noble v. Des Moines & St. L. R. Co., 61-637.

If, on the trial of an appeal by the land owner, a less amount of damages is given than was awarded by the commissioners, the court is not bound to tax all the costs of appeal to him, but may distribute them according to the general rules of law without reference to this section. Jones v. Mahaska County Coal Co., 47-354.

The purchaser of a railroad pending an appeal from allowance of damages for right of way becomes liable for the payment of costs incurred in such proceeding. Frankel v. Chicago, B. & P. R. Co., 70–424.

1917. Report recorded. 1253. The report of the commissioners, where the same has not been appealed from, and the amount of damages assessed and costs have been deposited with the sheriff, or, if an appeal is taken and the amount of damages assessed on the trial thereof has been paid to the sheriff, may be recorded in the record of deeds in the county where the land is situate, and such record shall be presumptive evidence of title in the corporation to the property so taken, and shall constitute constructive notice of the rights of such corporation therein. [13 G. A., ch. 125, § 1.]

The company cannot be compelled to pay the damages assessed and take the right of way, but may waive the rights acquired by the proceedings, be