Huling v. Kaw Valley Railway & Improvement Co.

delivered the opinion of the court.

This action was brought in the court below by the plaintiffs in error against the' Raw Valley Railway and Improvement Company, as defendants, in the nature of an action of trespass on land. It was in fact to recover for the value of land taken by the railroad for its right of way,, and for damages ‘to adja; cent lands, houses, fences and property, incident to the taking.' The land was a part of a quarter-section in Jackson Township, Wyandotte County, Ransas. The railway company answered by setting up proceedings which they had taken under the

The parties waived a jury, and the case was tried by the court, who found for the defendant, the railway company, and entered a judgment against the plaintiffs for the costs. We are called upon to review that judgment.

. The record of the case is a very singular one, as there , is no special finding of facts by the court, but a general finding in 'favor of the defendants. Instead, however, of a finding of facts, there is a bill of exceptions, which itself contains the entire history of the ease, including the pleadings, the motions, the evidence, the judgment of the court and all that is in the record.besides. The only point raised by this bill of exceptions was as to the admission of the testimony of L. H. Wood, who acted as one of the commissioners by appointment of the district judge of Wyandotte County, in which the land lay. The deposition of Wood was directed, to the question whether- he was a freeholder of Wyandotte County, and, although he declared that at the time he was appointed as'commissioner he was the owner of considerable real estate, upon further examination he stated that the-title to it was in some other person, who held it- as trustee for him. This attempt to raise the question of whether he was a freeholder within the meaning of the statute of Kansas on that subject was ruled out entirely by the exclusion of all his testimony on the trial, and this constitutes the principal assignment of error in the case.

Article-9 of chapter 23 of the Compiled Laws of Kansas, page 224, entitled “ Appropriation of lands for the use of railway and other corporations,” provides two modes of doing this. The first of these modes is by an application to the board of county commissioners, which is the governing body of the county, to lay off along the line of the proposed road as located by the company a route for such railroad. Upon this

Section 86 of this- article provides that before the county commissioners shall proceed to. lay off any railroad route, notice of the time when the same shall be commenced shall be given by publication, thirty days before the time fixed, in some newspaper published in the county, "It also provides that an appeal may be had from the - determination of the board of county commissioners as to the value of the lands and other damages to the District Court of the county, which appeal shall only affect the-amount of compensation to be allowed, but shall not’ delay the prosecution of the work, if the company shall pay the amount as aforesaid and execute a bond with sufficient security to pay all damages which may be adjudged to be paid by the said court.

Another mode of- appropriating this land, by the exercise of the right of eminent domain, for the use of railroads, is provided by § 81 of the same article. In this case, the railroad company, instead of applying to the board of county commissioners, may apply to the judge of the District Court of the

' In the case now before us, the proceeding, was had under the latter provision of the statute.' The transcript on its face seems to be regular in every particular, showing a full 'compliance with all the requirements of the statute on the subject. There was the proper publication made in the newspaper, and, indeed, so far as the face of the record is concerned, no objection seems to be made to it, except that it is very urgently argued that the notice published was not sufficient because it did not apprise the party of what land was to be taken ; and, if in that respect it was a sufficient compliance with the statute, it is then insisted that the statute itself Avas void as authorizing the taking of private property Avithout due process of law.

In regard to this objection, we do not see hoAv the notice is deficient, if any notice short of one actually served upon the party can be sufficient. "With regard to the description of the property, the notice gives all that could be knoAvn at the time it Avas published. As the commissioners had the poAver to determine the precise location of the road, that location could not be described Avith more precision than it is in the neAvspaper publication set out in the proceedings. It is directed to all persons OAvning lands on the line of. the railroad as the same is now or may be located through section 23, town ship 11, range 25, in the. county of Wyandotte and State of

The owner of real estate, who is a non-resident of the State within' which the property lies, cannot evade the duties and .obligations which the law imposes upon him in regard to such property, by his absence from'the State. Because he cannot be reached.by some process of the courts of the State, which, of course, have no efficacy beyond their own borders, he cannot therefore hold his property exempt from the liabilities, duties and obligations which the State has ■ a right to impose upon such property; and in such cases some substituted form of notice has always been held to be a sufficient warning to

It is, therefore, the duty of the owner of real estate, who is a non-resident, to take measures that ip some way hp shall be represented when .his property is called into requisition; and if he. fails to do this, and fails to get notice by the ordinary publications which have usually been required in; such cases, it is his misfortune, and he must abide the consequences. Such publication is “ due process of law ” as applied to this class of cases. Harvey v. Tyler, 2 Wall. 328 ; Secombe v. Railroad Co., 23 Wall. 108 ; Pennoyer v. Neff, 95 U. S. 714 , 722, 743, 744; Hagar v. Reclamation District, 111 U. S. 701 ; McMillen v. Anderson, 95 U. S. 37 ; Davidson v. New Orleans, 96 U. S. 97 , 105; Boom Co. v. Patterson, 98 U. S. 403 , 406.

Conceding that these proceedings subjected the land in controversy to the jurisdiction- of the commissioners appointed by the district judge of "Wyandotte County, the question as to whether one of those commissioners was a freeholder or not is'not open to consideration in this suit. The commissioners were regularly appointed by the proper officer, and took the proper oath, and have discharged their duties in the manner required'.by law. The railroad company has paid the money and taken possession of the land which was condemned by .those commissioners. The plaintiffs cannot recover''in. the present action without a holding in this collateral' proceeding that all that was dope- by those commissioners is Void by reason of -this want of qualification hr one of their number. The proper time for these plaintiffs to have taken this objection to Mr. "Wood as a commissioner was either at the time of his' appointment, of at the time he proceeded to act as commissioner. If it be objected that they could not be supposed to have any notice of the application-for the appointment of these commissioners, and of the time and place when the judge would act on that application, the law presumes that they had notice,

The judgment of the Circuit Court is affirmed.