judgment for that amount this appeal is 13. CONSTITUTIONAL LAW (§ 297*)-Due Protaken. CESS OF LAW-ORDERS OF RAILROAD COMMISSION-VALIDITY.

sion, requiring two railroad companies to make An order of the State Railroad CommisSil-physical connection at a certain point, is unreasonable and unenforceable, as constituting a deprivation of property without due process of law, where its enforcement would merely result in the furnishing by each road to the other of terminal facilities; the roads being engaged in transporting freight and passengers, and not in switching or transfer service for, or furnishing terminal facilities to, other roads.

[2] On the testimony in the record, we cannot say that the verdict is at all exces-overruled on May 22, 1911. Thereafter, at

[Ed. Note. For other cases, see Railroads, Mill Company requested an order from the Dec. Dig. § 223.*] State Railroad Commission, under the pro

*

visions of section 4895 of the Code, directing | of regulation, interfere with the proper consuch connection to be made, which request was by the Commission granted, and the following order passed: "This case came on this day to be heard on the petition of the Grenada Oil Mill to require said roads to connect their tracks at Hollandale, and due notice having been given all parties, and all parties being represented, after full hearing, it is ordered that said petition be granted, and that said roads be and are hereby required to connect their tracks, as prayed for; said roads to share proportionately the cost of said connection. The same to be done by September 1, 1908."

The physical connection of these roads at this point is not necessary in order that cars in transit may be transferred from one road to the other, for such connections between the roads exist at other places. If enforced, this order would serve two purposes only: First, that cars loaded by shippers at Hollandale on sidings located on one of these roads could be switched to the other for transportation to points of destination; and second, that cars brought to Hollandale by one road could be switched to the other and unloaded more conveniently by consignees. In other words, its enforcement would result simply in the furnishing by each road to the other of terminal facilities. After the making of this order, appellee, upon the filing of its bill in the court below, obtained an injunction temporarily enjoining the enforcement thereof, which injunction, upon final hearing, was made perpetual; hence this appeal.

duct of the business of the railroad corporation in matters which do not fairly belong to the domain of reasonable regulation. The only question arising as each case comes up for decision is whether in the particular case the power has been duly exercised. * * * Taking the facts which we have already enumerated into consideration, we think there is no justification furnished for the argument that the judgment, if enforced, would violate any of the constitutional rights of the plaintiff in error. In so deciding we do not at all mean to hold that under no circumstances could a judgment enforcing track connections between two railroad corporations be a violation of the constitutional rights of one or the other, or possibly of both, such corporations. It would depend upon the facts surrounding the cases in regard to which the judgment was given. The reasonableness of the judgment with reference to the facts concerning each case must be a material, if not a controlling, factor upon the question of its validity. A statute, or a regulation provided for therein, is frequently valid, or the reverse, according as the fact may be whether it is a reasonable or an unreasonable exercise of legislative power over the subjectmatter involved. And in many cases questions of degree are the controlling ones by which to determine the validity, or the reverse, of legislative action. We think this case is a reasonable exercise of the power of regulation in favor of the interests and for the accommodation of the public, and that it does not, regard being had to the facts, unduly, unfairly, or improperly affect the pecuniary rights or interests of the plaintiff in error."

The right of the state to regulate railroads within reasonable limits is not, and could not be successfully, challenged by appellee. Its complaint, among other things, is that the order in question is an unreason- [2, 3] For an order of a railroad commisable exercise of this power, constituting, in sion, directing any railroad company to do fact, an attempt to deprive it of its property a certain thing, to be reasonable, the thing without due process of law. It may also ordered to be done must, among other things, be noted that the right of the state to en- be within the purposes for which such railforce the use of union terminal facilities is oad was chartered or within the scope of not here involved. In Wisconsin, etc., R. R. the business in which it is engaged. The Co. v. Jacobson, 179 U. S. 287, 21 Sup. Ct. business for which appellee was chartered, 115, 45 L. Ed. 194, the Supreme Court of the and in which it is engaged, is that of transUnited States, in deciding that an order of porting freight and passengers from one a state railroad commission, directing the point to another, and not that of doing making of a physical connection between switching or transfer service for, or furnishtwo railroads necessary, in order that cars ing terminal facilities to, other roads. This or freight in transit could be transferred order, therefore, constitutes an unreasonable from one road to the other, did not deprive and arbitrary exercise of the power to regueither road of its property without due pro- late, and its enforcement would result in cess of law, said: “While this power of reg-depriving appellee of its property without ulation exists, it is also to be remembered due process of law. that the Legislature cannot. under the guise Affirmed.

MISSISSIPPI R. R. COMMISSION v. YA-
ZOO & M. V. R. CO. (No. 15,060.)

by the acquisition or accrual of one during the pendency of the action.

[Ed. Note.-For other cases, see Action,

(Supreme Court of Mississippi. Dec. 18, 1911.) Cent. Dig. §§ 735, 736; Dec. Dig. § 65.*]

Appeal from Chancery Court, Hinds County; G. G. Lyell, Chancellor.

Action by the Yazoo & Mississippi Valley Railroad Company against the Mississippi Railroad Commission. Decree for plaintiff, and defendant appeals. Affirmed.

Watson & Jayne, Alexander & Alexander, Chalmers Alexander, and Jas. R. McDowell, Asst. Atty. Gen., for appellant. Mayes & Longstreet and Chas. N. Burch, for appellee.

SMITH, J. This case is controlled by the opinion this day rendered in Mississippi Railroad Commission v. Yazoo & Mississippi Valley R. R. Co. (No. 15,059) 56 South. 668. Affirmed.

3. TRESPASS (8 45*)-RIGHT OF ACTION—EVI

DENCE.

If a party who has contracted to purchase land is in possession of it under such contract at the time that unauthorized trespasses are committed upon it, and a deed of the land is subsequently made to him in pursuance of such contract, such deed is evidence of his right to recover damages for the trespasses.

[Ed. Note.-For other cases, see Trespass, Cent. Dig. §§ 116-122; Dec. Dig. § 45.*] 4. EMINENT DOMAIN (8 293*)-REMEDIES OF

OWNERS OF PROPERTY-PLEADING.

Where a bill is filed to recover damages or compensation for the unauthorized appropriation by a railway company of a right of way through the lands of complainant, the width of the right of way should be described in the bill seeking compensation therefor, and in the decree awarding it.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 797-802; Dec. Dig. § 293.*] Appeal from Circuit Court, Jackson County; J. E. Wolfe, Judge.

Bill in equity by H. V. Maund against the Marianna & Blountstown Railroad Company. From a decree for complainant, defendant appeals. Reversed, with directions to dismiss bill without prejudice.

C. L. Wilson and Paul Carter, for appellant. Smith & Davis, for appellee.

PER CURIAM. Motion to dismiss appeal owned and in possession of complainant," sustained.

(62 Fla. 538)

MARIANNA & B. R. CO. v. MAUND. (Supreme Court of Florida, Division B. Nov. 21, 1911.)

(Syllabus by the Court.)

1. EMINENT DOMAIN (§ 284*)-REMEDIES OF OWNERS OF PROPERTY-ACTIONS FOR DAMAGES-PERSONS ENTITLED TO SUE.

Where a bill is filed to recover damages of a permanent nature from a railroad company for trespasses committed in constructing its railway through land without authority, the owner of the land, or reversioner, or the party having the right of action for such damages, is the proper party to sue for such.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 789, 790; Dec. Dig. § 284.*] 2. ACTION (§ 65*) – RIGHTS ARISING AFTER COMMENCEMENT.

A complainant cannot supply the want of a valid claim at the commencement of the action

wrongfully building and constructing its right of way and railway tracks upon and across said lands, and has continued to use its right of way and railroad tracks without complainant's consent; that defendant corporation has never compensated complainant for taking said land, although it has remained in the continued use thereof, and has greatly depreciated the value of said lands by cutting off a part of said lands between the right of way and the Chipola river; that complainant is entitled to compensation to the amount of $3,000, and claims a lien thereon, together with the improvements upon the same, for said amount. The bill prays that a full answer may be required; that the court will adjudge and decree the amount of compensation for the taking of the property as alleged, and that such amount may be decreed to be a lien upon the land so taken with the improvements there

on; that defendant be directed to pay the
same by a short day, and in default of pay-
ment that defendant and all persons claim-
ing by or through or under it be forever
foreclosed and barred of all right and equity
of redemption of, in, and to the said lands;
that a master be appointed, etc. The bill
contains also a prayer for general relief.
A demurrer was filed to this bill and over-
ruled. The defendant answered, in sub-
stance, neither admitting nor denying the
ownership of the lands by the complainant,
and demanding proof of this fact, denying
that its railway has depreciated the value
of complainant's lands, that its right of way
and track takes up a good portion of his
lands, and that it cuts up and divides the
land so as to make it less salable, and al-
leging that the land crossed by its line of
railway along the bank of the Chipola river
is of small value, and useless for agricul-
tural purposes. The answer admits it has
not paid complainant any compensation for
said land, and that he is entitled to some
compensation for the right of way, if he
owns the land, but denies it is worth $3,000,
and alleges that $250 would be reasonable
compensation.

It seems that this cause was brought to issue on this original bill and the answer thereto; that quite a large amount of testimony was taken; and that, because it appeared the complainant did not have the legal title to the land in controversy at the time he filed his original bill on the 13th of February, 1911, he moved the court to be allowed to file an amended bill which would meet the facts. In this amended bill, he alleged substantially that on the day

of —, 1908, he took a lease in writing of the lands in question with an option of buying them; that subsequently he made valuable improvements on the lands with the view of buying them; that on November 1, 1909, he did buy said lands, receiving a bond for title from the owner, the Milton Land & Investment Company; that thereafter, on October 10, 1910, in accordance with said bond for title, the Milton Land & Investment Company made a deed to complainant, conveying said lands; and that he thus is the owner in fee simple of said lands, but was indebted to said Milton Land & Investment Company for the balance due said company, to secure which he agreed and promised to execute a mortgage on said lands, which mortgage he had executed, though his wife had not signed it.

The bill alleges that the acts of defendant company had depreciated the market value of said lands, taking up a good portion thereof, and cutting up and dividing it so as to make it unsalable, especially the part between the Chipola river and the railroad tracks and right of way. The bill then alleges that on January 5, 1911, the Milton Land & Investment Company, by an instrument in writing, released, transferred, and assigned to complainant any cause of action or right of action it may have had, or then had, against defendant company for the use of the right of way aforesaid through said lands, and for any damages it may have suffered by reason of such use. The bill alleges that defendant has never paid com. plainant for the use of said lands, and is in possession without complainant's authority, or that of his grantor. It alleges that complainant is entitled to compensation in the sum of $3,000, and claims a lien therefor on said lands and improvements. The prayer of the bill is substantially the same as in the original bill.

The defendant demurred to this amended bill, because it was indefinite and vague, not stating a cause of action; that the cause of action is therein based on the deed of January 11, 1911, made long after the suit was brought, and other grounds. This demurrer was overruled, with leave to defendant company to answer. The defendant company answered, among other things, that complainant did not own the real estate described in the amended bill at the time that suit was brought, and then had no right of action against defendant, and alleges that he purchased said lands after the completion of defendant's railroad across said lands. The answer admits building its railroad from Marianna, in Jackson county, to Blountstown, in Calhoun county, during the years 1909 and 1910, and believes it crosses some of the lands complainant now claims; that it is now using the right of way and railroad tracks; denies depreciation of the value of the lands; alleges that where the railroad passes through the lands claimed by complainant the land between the railroad and the river is not used for farming purposes, is wild and swampy, and of little value. The answer then alleges the facts set up in the demurrer as to complainant's ownership; that he is not entitled to compensation, and was not the owner until long after the suit was brought. No exception was filed to this answer, and no proof was made as to the time when the railroad was built across the lands claimed by complainant.

The bill then alleges that on the day of, 1909, the defendant railroad company wrongfully entered upon said lands then owned by complainant's grantor, but in A final hearing was had by agreement of complainant's possession, under the written the parties on the amended bill, answer, repcontract for the purchase thereof, and wrong-lication, and testimony submitted by the refully built its tracks and erected its right of way across said lands, which said defendant company has since continued to use, without

spective parties. A decree was made on April 7, 1911, for $1,250, as compensation or damages, and giving a lien therefor "upon

that complainant was entitled to a foreclo- | by assignment." Frey v. Duluth S. S. & Ry. sure of such lien and sale of the land taken. Co., 91 Wis. 309, 64 N. W. 1038. Conceding The decree directed that the defendant pay the amount awarded and costs in 20 days, and in default thereof that defendant be barred of all equity of redemption in and to the right of way, and that W. B. Farley be appointed a special master to sell the lands according to law and the rules of practice in foreclosure cases, etc. An appeal was taken from this decree.

Several questions are presented here: First, that complainant had no cause of action when the suit was brought; second, that the damages were excessive; and, third, that the bill stated no cause of action.

that complainant would have a right of action for the damages sued for, if the trespasses complained of were committed by defendant subsequent to complainant's entry upon the land under his contract to purchase, made on November 1, 1909, yet the proof does not show that this was the case. The amended bill alleges that the defendant built its road across the lands in question in 1909 and 1910. There is no express allegation that the road was built after November 1, 1909, and the fact that it was so built is inferentially denied in the answer, which is not excepted to. The complainant then has [1] It seems that any one in lawful pos- not clearly shown a right of action accruing session of land, and in some cases even a to him under this contract. The deed to the trespasser, may recover damages for a tres- plaintiff, made October 24, 1910, several pass that affects his interest in the land. months after this suit was brought, could Dicey on Parties to Actions, top page 355 not alone support this action, though, if et seq. But, where a suit for damages complainant was in possession of the land is brought to recover damages of a perma- under his contract to purchase it, dated Nonent nature to the land, the owner or re-vember 1, 1909, prior to the time the railversioner is the proper person to sue for such damages. "The same act which injures the landlord or reversioner is generally also an interference with the rights of the tenant. When this is so, the landlord and tenant have each separate rights of action, and may be entitled to different amounts of damages." Id. p. 366. In this case it is apparent that complainant is not suing for damages for any interference with his rights as a mere tenant, but for damages of a permanent nature to the land. He should therefore make it plain that he was the owner of the land, or of the right of action, at the time the suit was brought.

[2, 3] It is said in 1 Cyc. p. 744: "A plaintiff cannot supply the want of a valid claim at the commencement of the action by the acquisition or accrual of one during the pendency of the action. Nor can plaintiff recover in a pending action on a cause of action which accrued after the institution of such action, even though such cause of action relate to the subject-matter of the pending action." See Metcalf v. Guthrie, 94 N. C. 447. It is stated in this case that, where the right to sue arises out of a transaction subsequent to the institution of the suit, relief cannot be had by a supplemental or amended complaint, for the obvious reason that the cause of action did not then exist. Says Judge Bleckley, in Wadley, Jones & Co. v. Jones, 55 Ga. 329: "It is a rule of law to which there is, perhaps, no exception, either at law or in equity, that to recover at all there must be some cause of action at the commencement of suit." In 15 Cyc. p. 795, it is said: "Damages for the taking of land, or for injury to land not taken, belong to the one who owns the land at the time of the taking or injury, and they do not pass to a subsequent grantee of the land, except

road was constructed through it, then this deed would be evidence of his right to recover the permanent damages to the land. So it is obvious he has not clearly shown a right of action when the suit was brought on the 24th of March, 1910, under the assignment of the right to sue executed on January 5, 1911. That assignment gave a new right of action long subsequent to the date of the bringing of the suit. It is decided in this state that in ejectment a plaintiff cannot recover upon a deed made after the suit is brought. Paul v. Fries, 18 Fla. 573; Carn v. Haisley, 22 Fla. 317. We know of no reason why the same principle should not apply to a case like the instant one.

It is asserted in the appellee's brief that this suit is based on the case of Florida Southern R. Co. v. Hill, 40 Fla. 1, 23 South. 566, 74 Am. St. Rep. 124. This case simply recognizes the right of the owner of land through which a railroad has been permitted to lay its track to recover his damages in an equitable proceeding.

[4] It appears that neither of the bills, nor does the decree, describe the property taken by the railroad, or decreed to be subject to the lien, and subject to foreclosure, with any certainty; no width of the right of way is given or described, and we know of no statute that fixes with certainty the width of a right of way. The fourth paragraph of section 2803, General Statutes of 1906, gives a railroad or canal the right to lay out its road or canal, "not exceeding two hundred feet in width." That is the maximum width, but not necessarily the exact width, for it may be less. As a matter of fact, the decree describes no property in such fashion that it could be definitely ascertained by a surveyor. If the railroad company is to pay compensation for a right of way, then it