held that the report of commissioners appointed to condemn a right of way for a railroad is not complete and final until it is filed in the office of the county clerk, and the landowner may take an appeal from their award at any time within 10 days after it is so filed. The time of taking an appeal will be reckoned from the filing of the report, instead of from the time when it is reduced to writing and signed by the commissioners. The failure of the county clerk to indorse upon the report the time when it was filed in his office will not preclude a party from showing when it was actually filed, and thus establish that the appeal was taken within the prescribed time. Abandonment of Appeal-Right of Party not Appealing.-In Upper Coos R. Co. v. Parsons, New Hampshire Sup. Ct., December 24, 1889, it was held that the right to abandon an appeal from the report of commissioners awarding damages for land taken by a railway company, is analogous to the right of a party to become nonsuited. Accordingly, it was held that after abandonment of such an appeal taken by a railway company under a statute providing that the commissioners' report should be final unless either party appealed, when a jury trial should be had, the landowner is not entitled to a jury trial if he has not appealed also. The court said: "The appellee, by neglecting to appeal, and the appellant, by failure to prosecute his appeal, admitted the damages as found by the commissioners, and, in effect, assented to judgment on the award. Knox v. Lermond, 3 Greenl. 378, 379. The award of the commissioners was merely suspended by the appeal." When Appeal is Triable.-In Kansas an appeal from an award made by commissioners appointed to condemn a right of way for a railroad is triable at the next term of the district court which occurs ten days or more after the appeal is perfected. Chicago, K. & W. R. Co. v. Wilkinson, 42 Kan. 337. Waiver of Jury Trial on Appeal.-In Chowan & S. R. Co. v. Parker, N. Car. Sup. Ct., March 31, 1890, it was held that the right of a landowner in a proceeding by a railway company to condemn land for its right of way to insist that any issues raised by the pleadings on the commissioners' trial should be framed by the clerk and transmitted to the superior court for a jury trial as provided by statute, is waived by the failure, before the order appointing commissioners is made, to insist upon a verdict upon the controverted facts, and should not be restored against plaintiff's pro test. Appointment of Commissioners-Necessity for Findings of Fact and Conclusions of Law.-Proceedings for the appointment of commissioners to assess damages done to real estate taken for railroad purposes under the Wisconsin statute, are not an action, but are special proceedings, and since the statute which requires that findings of fact and conclusions of law be filed when an issue of fact is tried by a court without a jury, applies only to issues in an action (Rev. St. Wis. § 2862), it is not necessary to file such findings and conclusions in such special proceeding, although its determination may involve disputed questions of law. Gill v. Milwaukee & L. W. R. Co., Wis. Sup. Ct., March 18, 1890. Same-Reappointment on Failure of Railway to Appear at Date Fixed.-At the time of appointing commissioners to assess damage done to real estate taken for a railway, the order of the court fixed the time and place of the first meeting of such commissioners. The railway company failed to appear at such meeting, and at a subsequent term the court reappointed the same commissioners and fixed a later date for their first meeting. Held, that the second order did not vacate the former appointment of the commissioners and was inoperative and harmless; its only effect was to appoint a future day for the first meeting of the commissioners, and that the court might do at any time where the meeting was not held at the time first appointed. It is a mere matter of procedure within the control of the court. Gill v. Milwaukee & L. W. R. Ĉo., Wis. Sup. Ct., March 18, 1890. Failure to File Commissioner's Report-Validity of Proceedings. In an action brought by the landowner for damages on account of the company taking possession and occupying a right of way for its road over the land wrongfully, and without the consent of the owner, the company justified under condemnation proceedings. The trial court excluded the proceedings for the reason, among others, that a certified copy of the report of the commissioners had not been filed within 10 days after being certified toas prescribed by paragraph 1393, Gen. St. 1889. It appeared that the report of the proceedings of condemnation was filed in the office of the county clerk on April 28, 1886; that a copy thereof was prepared and filed by the county clerk in the office of the treasurer of the county on April 29, 1886; that the railroad company caused to be paid to the treasurer on the same day the amount in full of the appraisement, in accordance with the report, and that a certified copy of the report was filed in the office of the register of deeds on December 13, 1886, before any action was commenced for damages by the landowner. Held, that the failure to file the certified report within 10 days, in the office of the register of deeds, did not invalidate the proceedings, or prohibit occupation of the land for its right of way by the railroad company. Chicago, K. & W. R. Co. v. Abbott, Kan. Sup. Ct., June 7, 1890. CORY ย. CHICAGO, BURLINGTON & KANSAS CITY R. Co. (100 Mo. 282.) Eminent Domain-Special Charter and General Law.-A railway company may, in order to condemn lands, resort either to the provisions of its special charter or to those of the general law. Description of Land. A petition filed by a railway company for the condemnation of a right of way mentioned the particular subdivision of land over which it intended to run its road and gave the general direction in which its line was to run. A reference was then made to the map filed with the petition for a more particular description; held, that the description of the land sought to be condemned was sufficient. Same-Map not Attached to Files.—Where such map is not attached to the files, the court will assume that it was all that was asserted concerning it in the petition in which it was filed, especially since the lower court will be presumed to have examined the map and found it sufficient. Averment as to Inability to Agree with Landowner.-In a petition to condemn land for a right of way the company averred that it could not "agree with the defendant as to the amount of compensation to be paid;" held, that this averment conforms to the general law and was sufficient, and the averment need not be sustained by oral testimony. Oath of Commissioners.-Commissioners appointed to assess damages for land taken for a right of way, need not, under the general law, take the oath before entering upon their duties; it is sufficient if they make the assessment and return under the same oath. Notice to Landowner by Commissioners. In proceedings to assess damages for a railway right of way the notice to be served upon the landowner need be served only ten days before the petition is heard; it is not requisite that the notice should be given before making the assessment. Institution of Proceedings by Company after it has Sold its Road.-Under a statute requiring the condemnation proceedings to be brought in the name of the real party in interest, a railway company, which has entered upon land and began the construction of its road, is the proper party to institute such proceedings, although it has sold its road before it instituted them; the title, when acquired, will inure to the benefit of the company's grantee. Proceedings Instituted after Appropriation. Proceedings to condemn land after the appropriation thereof are valid although the subsequent condemnation proceedings do not cure any antecedent trespass. Failure to Pay Damages Assessed-Ejectment-Injunction.-The landowner's remedy by ejectment and injunction where the compensation assessed has not been paid, does not apply where there has been a waiver of prepayment or a contract releasing the payment altogether, or a parol license to enter under which license the road has been built. In such case the title of the owner would pass; but, unless to an innocent purchaser, subject to his right to recover compensation. Measure of Damages-Amount Awarded by Commissioners. Where, by appropriate statutory proceedings, the landowner's compensation has been fixed, the measure of damages which he can claim is the amount of compensation awarded by the commissioners. Estoppel to Claim Damages Agreement with Company.-A landowner contracting with the railway company to give him employment in consideration of a waiver by him of all compensation for right of way through his land, cannot maintain an action for damages for the wrongful taking of his land. Acquiescence by Landowner-Proceedings against Purchaser at Foreclosure Sale. A landowner through whose property a railway company had built its road, who has acquiesced for nearly ten years in such construction, is precluded from seeking relief, especially against a purchaser at a fore closure sale. ERROR to Linn County Circuit Court. A. W. Mullins and B. J. Northcott, for plaintiff in error. error. Case stated. SHERWOOD, J.-This cause has been transferred to this court from the Kansas City court of appeals on the ground that title to real estate is involved. It is an action for $1,000 damages for taking plaintiff's land, in the construction of a railroad wrongfully, and without legal authority. Briefly told, the essential facts are substantially these: In the month of July, 1872, the St. Joseph & Iowa Railroad Company resolved to build a branch road, and on the 13th of that month proceeded to condemn the right of way through the grounds of various persons, and among others those of plaintiff; and the result of such proceedings was that the plaintiff was duly notified thereof, and the commissioners made report of their action, which was duly recorded August 5, 1872. The report of the commissioners awarded to plaintiff the sum of one dollar; but he made no objection, and saved no exceptions, to the report. The defendant, in its answer, set up title to the land in controversy under and by virtue of a purchase thereof in 1880 from the trustee, who bought under a decree of foreclosure of the premises in 1876, and also claimed to be the purchaser without notice, and after due examination of the records aforesaid, and upon the ground of the plaintiff's acquiescence in the report aforesaid, and by reason of his residing continuously near the railroad ever since the work complained of was done, and without making any claim for damages, or any complaint about the same, to the receiver appointed by the federal court, who had the road in charge upwards of six years. The present action was not begun until May, 1882; almost, if not quite, 10 years from the time the railroad company first entered on plaintiff's land, and began its work. The substantial portion of plaintiff's own testimony was as follows: "I bought the land in 1869. I could have sold it in 1872 for $30 per acre. I was willing to give the right of way to the railroad com-* pany if they would go along the public highway on the east side of my farm. I don't recollect of any service of notice of the appointment of commissioners to assess damages by the building of this road through my farm. I consulted an attorney, about the time of the construction of the road, about my claim for damages; but I accepted a position as section foreman on the line with the understanding that I was to have a permanent position, and drop the question of damages. But there was no contract to that effect. I held the position only about three or four months, and never received any pay for my work. The road was sold on my judgment for wages, and I bought the part running through my farm, and also a hand car, and run the road myself while there were no trains, and until the Qualeys commenced operating it. I was waiting for the road to get out of the hands of the receiver. I have worked some for the road since it has belonged to the defendant. I have recently built a new barn on my farm. I think the strip of ground taken by the railroad company for right of way contained about seven acres. In waiting for the road to get out of the hands of the receiver, I acted under the advice of Major Mullins. Mullins did not say I could not recover from the receiver. He was only my counsel generally. The railroad passes along about one hundred feet from the house. Dirt has been piled up on each side of the track, and I had to put in one week's work with my boy and team to keep the graders from piling the dirt in front of the house, and get it so I could cross the railroad. Most of the dirt was hauled away." General law and special The claim is made that the proceeding instituted for the condemnation of a portion of plaintiff's ground was a nullity; the chief reason for so regarding it being that it failed to conform to the special charter under which authority was granted. Under the general charter. law relating to the incorporation of railroads, as it existed in 1855, a company, whether formed under the general law, or under "any special act," when desirous of condemning land in consequence of being unable to agree with the owner, had a right to proceed under that general law. Rev. St. 1855, pp. 414-417, §§ 13, 14. When the next revision of the statutes occurred, these sections were in substance incorporated into sections 1-3, Gen. St. 1865, pp. 351, 352, which make provision for the appropriation of lands "by any road, railroad, or telegraph corporation created under the laws of this state." Taking the history of this litigation, there can be no doubt that a railroad or other corporation enumerated above may, in order to condemn lands, resort either to the provisions of its special charter, or to those of the general law. This point was so ruled as to a macadamized road company, though possessing a special charter. Cape Girardeau, etc. Road Co. v. Dennis, 67 Mo. 438. Description Мар. The question then occurs, did the condemning company conform to the provisions of the general law? It is insisted that the petition does not contain a "description of the real estate which the company seeks to acof property- quire;" but the petition mentions the particular 80 acres of the defendant's land over which the proposed road was to be constructed, gives the general direction in which it was to run, and then, for a more particular description of the location and course of the road, it refers to a map filed therewith, and marked "Exhibit A," and made a part of the petition. This was a sufficient description, under the authority of Kansas City, C. & S. R. Co. v. Story, 96 Mo. 611, 36 Am. & Eng. R. Cas. 587, (decided a short time ago,) and, inasmuch as the map is not attached to the files, we will not assume that it was not all that was asserted concerning it in the petition with which it was filed; and this must be regarded as especially true, since the lower court, in its trial of this cause, will be presumed to have examined said map, and found it sufficient. The petition also contained the averment that the company "cannot agree with the defendants as to the amount of com |