CHAPTER XII.

OF THE NECESSITY OF EFFORTS TO AGREE ON COMPENSATION, AND OF CONTRACTS BETWEEN THE PARTIES.

105. Property should be purchased.

106. Tender of amount of damages.

107. The effort to agree should appear affirmatively on the record.

108. Election not to agree-Inability to agree.

109. Waiver of agreement.

110. Contracts for rights of way.

111. Relinquishment of damages-Licenses to owners -Licenses granted by owner.

112. Reservations to owner- - Easements not to be granted in lieu of damages, against the will of owner.

113. How contracts are to be enforced-Damages for breaches of contract. 114. Construction of contracts.

There is a

§ 105. Property should be purchased. reluctance on the part of the courts to the exercise of eminent domain, when the same end may be accomplished by agreement of the parties. The remedy is harsh in its nature, liable to gross perversion, and one which, in practice as in theory, encroaches upon the rights of the individual. In this country, as in England, it has always been the object of suspicion and distrust. When, therefore, the action of the government in taking private property can be attributed to a contract, instead of an exercise of eminent domain, it will be so treated.' The legislatures generally show the same spirit in requiring an agreement to be made with the owner, if possible, and that condemnation shall not be resorted to if an agreement can be made. The owner,

1 Bogert v. United States, 2 Ct. of Cl. 159.

2 Oregon R. R. v. Oregon Nav. Co., 3 Oreg. 178; Gilmer v. Lime Point, 19 Cal. 47.

also, when he initiates proceedings, may properly be called upon to show an effort to agree, and to name some sum which he will take for his damages.1 Provisions of this nature have been considered optional with either party in Tennessee and Illinois.3

2

§ 106. Tender of amount of damages. An agreement to sell, and a tender of the amount by the condemning party, do not operate as a transfer of the property so as to justify an entry. If the owner refuses to sell, there is a remedy at law for breach of contract, or in equity by specific performance, but an entry cannot be justified. In Maine, there is a statute providing for the ascertainment of an amount considered reasonable, and for the tender of the same. It provides for the appraisement of the land and a tender of the damages. A tender made after an entry would be no justification for an action of trespass for the entry. The English Lands Clauses Consolidation Act provides that the company shall make an offer of a certain sum as compensation, and if the owner refuses to accept the amount, and the same or a less sum is awarded to him, the costs will fall upon him. Having made the offer, the claimant will not even be entitled to the costs of a mandamus proceeding to compel the company to summon a jury, when the verdict of the jury is shown to be for a less sum than the offer."

§ 107. The effort to agree should appear affirmatively on the record. The record of the preliminary proceedings should affirmatively show a failure to agree.

1 Lincoln v. Colusa County, 28 Cal. 662.

2 Bigelow v. Mississippi R. R., 2 Head, 624.

3 Hall v. The People, 57 Ill. 307.

4 Whitman v. Boston R. R., 3 Allen, 133.

5 Storer v. Hobbs, 52 Me. 144.

Regina v. Waterford Rail. Co., 13 I. L. R. 272.

The refusal of

7 Miller v. Brown, 56 N. Y. 383; Vail v. Morris R. R., 21 N. J. L. 189;

the owner is a jurisdictional fact, and is not to be eked out by extraneous evidence.1 The allegation in the record makes a prima facie case. There should properly be an allegation of the attempt to agree in the petition or complaint.3 An allegation in the words of the statute, that the parties could not agree upon the proper compensation, is a sufficient allegation to put the adverse party to his defence on the merits. A statement in the petition, that the condemning party could not obtain permission of the owner of a quarry to take materials from the quarry, although such taking would do very little or no injury to the owner's property, is not a sufficient compliance with a statute authorizing a seizure of materials "when no private bargain could be made on fair terms." Such a petition does not show that any compensation was ever offered. The owner might have made a bargain if a fair remuneration had been offered him. Asking permission to use materials could not be considered as an attempt to make a bargain, without any offer of compensation. If the allegation of failure to agree is made in the petition, the owner cannot except, on appeal, on the ground that there was no effort to purchase, not having raised the point below. The burden of proving the failure to agree devolves upon the party claiming title under the

O'Hara v. Pennsylvania R. R., 25 Pa. 445; Cunningham v. Pacific R. R., 61 Mo. 33; Gilbert v. Turnpike Co., 3 Johns. Cas. 107; Reitenbaugh v. Chester R. R., 21 Pa. 100; Morseman v. Ionia, 32 Mich. 283; Arnold v. Decatur, 29 Mich. 77.

1 Ells v. Pacific R. R., 51 Mo. 200; Jamison v. Springfield, 53 Mo. 224; Kansas City R. R. v. Campbell, 62 Mo. 585; Rogers v. St. Charles, 3 Mo. App. 41.

Y. 434.

2 Dyckman v. Mayor of New York, 5 N. Lincoln v. Colusa County, 28 Cal. 662. Petition alleged that the company "has not been able to acquire the title to said several tracts, etc., from the persons interested therein, by voluntary grant or otherwise." The petition does aver that the title to the land could not be obtained by purchase, and is sufficient in that respect. Chicago R. R. v. Chamberlain, 84 Ill. 333.

Hannibal R. R. v. Muder, 49 Mo. 165.

5 Lind v. Clemens, 44 Mo. 540.

• United States v. Reed, 56 Mo. 565; Dyckman v. Mayor of New York, 5 N. Y. 434.

exercise of eminent domain.1 The evident intent of the legislature was that the owner should have the right and opportunity to dispose of his property for a just and fair compensation before proceedings should be instituted to deprive him of it against his will, and also that the public may know the amount at which the owner will settle for his damages. The reasons for the inability of the parties to agree must be stated in the petition, and if the reasons be not stated, the court acquires no jurisdiction and the proceedings fail.*

5

§ 108. Election not to agree—Inability to agree. - If the owner names an exorbitant sum, or refuses to give any terms, it is proper to hold that the parties are unable to agree. The requirement that an agreement should be made is for the benefit of the owner. If he signifies that he will not or cannot agree, by demanding a jury for the assessment of damages, no further evidence of effort to agree is necessary, and no actual effort need be proved. parties holding the title are unable to sell, on account of disability, their disability would operate as a refusal to agree on price. The inability of parties to agree is the fact required. No formal negotiation is necessary is such cases. A tender and refusal is sufficient. 8 An infant cannot convey land, and hence cannot agree on price, and in such case there need not be an effort to agree. Agreement might be

1 Dyckman v. Mayor of New York, 5 N. Y. 434.

2 Leslie v. St. Louis, 47 Mo. 474.

Lincoln v. Colusa County, 28 Cal. 662.

Matter of Marsh, 71 N. Y. 315.

If

5 Todd v. Austin, 34 Conn. 78; Trinity College v. Hartford, 32 Conn. 452. By inability to agree on the price of land the law does not mean that it must be impossible to purchase the right at any price, however large. It means that the owner must be either unwilling to sell at all, or willing to sell only at a price so large as, in the good judgment of the agents of the corporation, to be considered excessive. Matter of Prospect Park R. R., 67 N. Y. 371.

Burt v. Brigham, 117 Mass. 307.

7 Balch v. Commissioners of Essex, 103 Mass. 106.

8 Williams v. Hartford R. R., 13 Conn. 397. Indiana R. R. v. Oakes, 20 Ind. 9.

difficult or impossible with non-residents, and in their case it would be sufficient to show that offers had been made to agents of the non-residents.1 An affidavit that parties had failed to agree implies an effort to agree.2

3

§ 109. Waiver of agreement. A mere appearance before a jury does not operate to waive the right of notice to agree and effort of agreement. An appeal on the question of damages is a waiver of the agreement, and estops the owner from setting up that no effort to agree was made. The exception must be taken below. The appeal is presumed to be made from an assessment, which assessment could only be made on a failure to agree. Such an error as a failure to agree can be corrected on certiorari1 or appeal," but cannot be inquired into in a collateral proceeding. An approval, by the court, of a bond for appeal is an adjudication that all such preliminaries have been properly conducted to entitle the party to file a bond."

§ 110. Contracts for rights of way. - All contracts made by the condemning party with the owner, whereby the privileges desired are wholly or in part obtained without condemnation, are favorably regarded by the courts, and are construed strongly in favor of the owner.8 Contracts for rights of way and payment of compensation need not be in writing, to satisfy the statute of frauds. Such contracts are to be construed so as to put the burden on the condemning party of making good the grounds on which it sought to divest the owner of his rights; and he may show that he was unlettered, and that he did not know

1 West Virginia Transp. Co. v. Oil Co., 5 W. Va. 382.

2 Tucker v. Erie R. R., 27 Pa. 281.

Hinckley, petitioner, 15 Pick. 447.

Mississippi R. R. v. Rosseau, 8 Iowa, 373.

5 Ney v. Swinney, 36 Ind. 454.

Mississippi R. R. v. Rosseau, 8 Iowa, 373.

Wadhams v. Lackawanna R. R., 42 Pa. 303.

Tyler v. St. Louis, 56 Mo. 60.

Noyes v. Chapin, 6 Wend. 461.