Chesapeake v. Patton.

Decision Date31 October 1876
Citation9 W.Va. 648
CourtWest Virginia Supreme Court
PartiesChesapeake & Ohio R. R. Co. v. Robert Pattonet al.

1. The thirty-seventh section of chapter 88, of the acts of 1872-78, i. requires all railroad companies who, when this law was passed, April 3, 1873, were constructing their roads, if they desired to acquire title to lands, to proceed in the manner prescribed by the eighteenth section of such act, and, after the passage of this act, such a railroad, though incorporated before this act passed, can not condemn lands in the manner prescribed by the Code of West Virginia.

2. The title of this act, which is "An act to provide for the incorporation of associations that may be organized for the purpose of constructing railroads, maintaining and operating the same; for prescribing and defining the duties, and limiting the powers of such corporations when so organized," sufficiently indicates, that provisions in the act apply to these existing railroad corporations, and, therefore, said thirty-seventh section of this act, is not unconstitutional, the act not embracing more than one object, tha regulation of all railroad corporations, and that object being sufficiently expressed in the title.

3. Though a railroad company had instituted proceedings, under the Code of West Virginia, to condemn land, and had taken possession of the land under the provisions of the twentieth section of chapter 42 of the Code, yet the land owner, or the railroad com. pany, either, have a right, in the manner prescribed by the eighteenth section of this act, to require that the compensation to bo paid, shall be ascertained by an impartial jury of twele freeholders.

4. In proceedings under this act, the record states that the land owner moved to have a jury of twelve freeholders, which motion the court sustained, being of opinion that lie was entitled to such jury, and ordered a jury to be empanelled; no objection wa-made to the empanelling of the jury, because they were not freeholders' Held:

In such a case, the Appellate Court will presume that all the jurors were freeholders, though it be not so stated expressly on the record.

5. In such a case, an affidavit made after the rendition of the verdict, that a portion of the jury were not freeholders, is not a good ground for setting aside the verdict.

6. An affidavit by a juror that a verdict was arrived at by each juror setting down the amount he regarded as just, and aggregating them, and then dividing by twelve, it having been agreed that the amount so ascertained should be the verdict, ought not to be received or eonsiderel on a motion for a new trial,

7. The proper time for allowing a credit for the amount paid into court by the plaintiff, in a proceeding to condemn lands is when it is paid to thj defendant, and not before its actual receip by him.

Supersedeas to judgments of the circuit court of Kanawha county, entered on the twenty-fourth of November, 1873, the sixth of December, 1873, and the sixteenth of December, I87i, respectively, in a cause t lerein pending, in which the Caesapaake & Ohio Railroad was plaintiff, and Robert Patton and others were defendants.

The facts of the case sufficiently appear in the opinion of the court.

Hon. Joseph Smith, Judge of said circuit court, presiding at the trials below.

W. A. Quarrier and W. H. Hogeman, for said Railroad Company, plaintiff in error.

J. M. Laidley, for defendant in error.

Gkeen, Judge.

Proceedings were instituted in this case in the circuit court of Kanawha county, in 1870, by the Chesapeake & Ohio Railroad Company, under the provisions of chapter forty-two of the Code of West Virginia, to ascertain what would be a just compensation for certain real estate of Robert Patton, proposed to be taken for their use, The commissioners, who had, theretofore, been appointed, reported on September 14, 1870, that $675 and the construction and keeping in repair, by the Railroad Company, of a certain fence and crossings, ways and cattle guards, would be a just compensation for so much of his real estate as was proposed to be taken. Patton excepted, but his exceptions were overruled, and the report confirmed, and ordered to be recorded. Patton, thereupon, appealed, and this Court, on February 22, Ls73, reversed this action of the circuit court, and remanded the cause to the circuit court for further proceeding, for the reasons set forth in its opinion. See Chesapeake & Ohio Railroad Company v. Patton, 6 W. V., 148. While this case was formerly pending in this Court, the new Constitution of West Virginia was adopted, the ninth section of the third article of which, provides that " When private property shall be taken for the use of any company, incorporated for the purpose of internal improvement, the compensation of the owner shall be ascertained in such manner as shall be prescribed by general law; provided, that, when required by either party, such compensation shall be ascertained by an impartial jury of twelve freeholders." On April 3, 1873, the legislature passed an act, taking effect from its passage, entitled "An act to provide for the incorporation of associations that may be organized for the purpose of constructing railroads, maintaining and operating the same; for prescribing and defining the duties, and limiting the powers of such corporations when so organized." Acts of 1872-73, chapter eighty-eight, page two hundred and thirteen. The eighteenth section of this act, provides how such corporations may acquire real estate, for certain purposes, and among other things, it provides, "But if exceptions be taken and filed to the report of the viewers, and, when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders, selected according to law, the cause or proceeding, shall be tried as any other cause in said court, the jury, by their verdict, shall ascertain and determine the amount to be paid by the railroad corporation for the land actually aken and no more; and the damages to the residue o1 the tract, if any, may be off set, and compensated for, by any peculiar benefit to said residue, which may arise by reason of the construction of said, railroad, or any work necessary for the running and operation of the same." And the thirty-seventh section of this act provides, that "All existing railroad corporations within this Sate, shall, respectively, have and possess, all the powes and privileges, and be subject to all the duties, and liabilities and provisions contained in this act; and railroad companies that are now constructing their roads, may acquire title to land, necessary for that purpose, under t le provisions of this act." And the forty-second section provides," All general laws of this State in relation to rail oad corporations, and the powers and duties thereof, so far as the same a re not inconsistent with the pro visions of this act, shall remain in force, and be applicable to railroad corporations organized under this act."

After the remanding of this case to the circuit court that court on May 14, 1873, appointed five freeholders as commissioners, in the manner prescribed by the tenth and eleventh sections of chapter forty-two of code of West Virginia. On August twenty-third, 1873, the commissioners reported that $900 was a just compensation for the quantity of land actually taken by the Chesapeake & Ohio Railroad Company. The defendant filed exceptions to this report, and, in them, required that the compensation to which he was entitled should be ascertained by an impartial jury of twelve freeholders, in pursuance of the constitution and laws of West Virginia, and, on November 24, 1873, he moved the court to have a jury empanelled to ascertain the damages to which he was entitled nnder the constitution, and as prescribed by section eighteen of chapter eighty-eight of the acts of 1872-73. The plaintiff objected to this morion, but the court decided that a jury should be empanneled, at the bar of the court, to ascertain and return what sura will 'be just and equitable compensation to the defendant for the land taken by the plaintiff, and described in the proceedings. And on December 6, 1873, the jury was elected, tried, and sworn, to assess the defendant's damages, (the plaintiff objecting to their being empanneled). This jury, by their verdict, ascertained and determined the amount to be paid by the Chesapeake & Ohio Railroad Company to Robert Patton for the strip of land described in the proceedings, to be $2,149.55 1/2. The plaintiff moved to set aside this verdict, which motion the court overruled, and rendered a judgment for the defendant, against the plaintiff, for $2,149.55 1/2, with interest thereon from December 6, 1873, till paid, and costs.

The motion for a new trial was based on two affidavits, one by a juror, who stated that, when the jury was out, it was ascertained that there was a considerable difference of opinion among the jurors as to the value of the land, and it was then agreed that each juror should put down the amount he regarded as the true value; that the aggregate of these amounts should be divided by twelve, which was to be the value fixed by the jury. The amount of the verdict was ascertained in this manner. The price of the land put down by the different jurors varied from $100 per acre to $470 per acre. The other was an affidavit by plaintiff's counsel, that seven of the jurors were not freeholders. From this judgment of the circuit court, refusing to grant a new trial, and entering up a judgment according to the verdict of the jury, the plaintiff appealed to this Court.

The first error assigned is, that it was error to grant defendant's motion for a jury, after the commissioners, who had been appointed, had acted. The motion was founded on the paragraph in section eighteen, chapter eighty-eight of acts of 1872-73, which is quoted above. It is insisted that neither this section, nor any part of this chapter,...

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