FACTS:
Defendant
company took possession of and occupied small parcel of land without the
express consent of Plaintiff and without having made payment therefore,
alleging that the land is a part of certain lands described in condemnation
proceedings.
ISSUE:
W/N
Plaintiff has the right to maintain this separate action for damages for
trespass on his land on the ground that it was his duty to seek redress in the
condemnation proceedings instituted by Defendant company.
HELD:
As
a general rule, the steps prescribed by the statute must be followed or the
proceedings will be void. Since these statutes are in derogation of general
right and of common-law modes of procedure, they must be strictly construed in favor
of the landowner, and must be at least substantially or ‘fully
and fairly’ complied with. In the absence of proof
of a substantial compliance with the provisions of law touching such
proceedings, the Plaintiff was clearly entitled to institute any appropriate
action to recover the damages which she may have suffered as a result of an
unauthorized and unlawful seizure and occupation of her property. The theory on
which the trial judge correctly proceeded was that Defendant company having
unlawfully taken possession of a part of the tract of land in question, and by
its operations thereon rendered the whole tract worthless to the Plaintiff.
Thus, Plaintiff is entitled to abandon the entire tract, and recover damages
for its full value.
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