Colorado Cent. R. Co. v. Humphreys

• Citation: 16 Colo. 34,26 P. 165
• Parties: COLORADO CENT. R. CO. v. HUMPHREYS.
• Decision Date: 06 March 1891
• Court: Colorado Supreme Court

26 P. 165

16 Colo. 34

COLORADO CENT. R. CO. v. HUMPHREYS.

Supreme Court of Colorado

March 6, 1891

Commissioners' decision. Appeal from district court, Gilpin county.

This was a proceeding in condemnation on the part of appellant to acquire a right of way 10 feet in width across a piece of ground occupied as a mill-site, and on which there was a mill for the reduction and treatment of ores on North Clear creek at Black Hawk. The proceedings were instituted in the county court, and by agreement the venue was changed to the district court, where a trial was had to a jury, resulting in a verdict for $1,500, the value of the land taken having been found to be $500, and the damage to residue of property not taken, $1,000. Motion for a new trial made and overruled, and a judgment on the verdict, from which the appeal was taken. The further facts necessary for a proper understanding of the case appear in the opinion.

Teller & Orahood, for appellant.

Chase Withrow and Morrison & Kohn, for appellee.

REED C. ( after stating the facts as above.)

A large number of errors are assigned. It appears that the case was tried at a regular term; the jury was a jury of 12 persons called from the general panel in attendance. It was objected that the jury was not a proper one in this proceeding, and a challenge and objection was filed, which was overruled by the court, and exception taken. The ruling of the court is assigned for error. Condemnation proceedings under the acts relative to eminent domain are special proceedings, purely statutory, unknown to the common law. Such proceedings, to be valid, must be substantially conformable to the law conferring the right to condemn. Any serious departure vitiates and renders the proceeding void. The right to condemn and appropriate is derived from the consitution and the statutes. The constitutional provision is as follows 'That private property shall not be taken or damaged for public or private use, without just compensation. Such compensation shall be ascertained by a board of commissioners, of not less than three freeholders or by a jury, when required by the owner of the property, in such manner as may be prescribed by law.' In section 23, art. 2, it is declared that 'a jury in civil cases in all courts * * * may consist of less than twelve men, as may be prescribed by law.' Under these constitutional provisions, the legislature provided in section 242, Civil Code 1883, for commissioners, and in section 243 for a jury, as follows: 'Any person, persons, or company, whose estate or interest is to be affected by the proceeding, may demand, at the time of any hearing of such petition, and before the appointment of the commissioners, a jury of six freeholders, residing in the county where such petition is filed, to ascertain, determine, and appraise the damages or compensation to be allowed therefor; and thereupon said court or judge shall make an order for the drawing of such jury, as herein provided.' Section 244 provides for a jury and a trial in vacation. It is evident, from an examination of section 246, that the jury shall be the same in number, and selected in the same way, whether the trial occurs in term or vacation. The proceeding being statutory and special, a substantial compliance with its provisions is necessary and imperative. If by statute a new power or right is conferred, and a particular form or manner of proceedings in connection therewith is provided, it is an exclusion of any other mode. In such cases the maxim, expressio unius est exclusio alterius, applies. Potter's Dwar. St. 275; Sedg. St. & Const. Law, 30, 31. 'Where a statute gives a new power, and at the same time provides the means of executing it, those who claim the power can execute it in no other way.' Turnpike Co. v. Gould, 6 Mass. 40; Glass Co. v. White, 14 Mass. 286; Potter's Dwar. St. 275; Smith v. Lockwood, 13 Barb. 209; Thurston v. Prentiss, 1 Mich. 193; Bassett v. Carleton, 32 Me. 553; Renwick v. Morris, 7 Hill, 575; Lang v. Scott, 1 Blackf. 405; Almy v. Harris, 5 Johns. 175; New Haven...