Elbert v. Scott

• Decision Date: 17 February 1914
• Citation: 28 Del. 1,90 A. 587
• Court: United States State Supreme Court of Delaware
• Parties: SAMUEL G. ELBERT, defendant below, plaintiff in error, v. HARLAN G. SCOTT, DANIEL CORBIT, JAMES I. FORD, JOHN J. RASKOB and L. SCOTT TOWNSEND, constituting THE NEW CASTLE COUNTY BUILDING COMMISSION, plaintiffs below, defendants in error. SAMUEL G. ELBERT, plaintiff below, plaintiff in error, v. HARLAN G. SCOTT, DANIEL CORBIT, JAMES I. FORD, JOHN J. RASKOB and L. SCOTT TOWNSEND, constituting THE NEW CASTLE COUNTY BUILDING COMMISSION, defendants below, defendants in error

90 A. 587

28 Del. 1

SAMUEL G. ELBERT, defendant below, plaintiff in error, v. HARLAN G. SCOTT, DANIEL CORBIT, JAMES I. FORD, JOHN J. RASKOB and L. SCOTT TOWNSEND, constituting THE NEW CASTLE COUNTY BUILDING COMMISSION, plaintiffs below, defendants in error. SAMUEL G. ELBERT, plaintiff below, plaintiff in error, v. HARLAN G. SCOTT, DANIEL CORBIT, JAMES I. FORD, JOHN J. RASKOB and L. SCOTT TOWNSEND, constituting THE NEW CASTLE COUNTY BUILDING COMMISSION, defendants below, defendants in error

Supreme Court of Delaware

February 17, 1914

[Copyrighted Material Omitted]

Supreme Court, January Term, 1914.

ERROR to Superior Court, New Castle County (Nos. 4 and 5, January Term, 1914 being Nos. 32 and 33, September Term, 1913, court below).

Writs of ad quod damnum to assess damages from the condemnation of the property of Samuel G. Elbert were issued on the application of Harlan G. Scott and others, constituting the New Castle County Building Commission, and on the application of said Samuel G. Elbert. Motions to quash the writs and vacate and set aside the sheriff's returns thereon having been denied (4 Boyce 388, 88 A. 608), the landowner, Samuel G. Elbert, brings error. Affirmed.

STATEMENT OF THE CASE.

Under the provisions of an act of the Legislature approved February 26, 1913, being Chapter 201, Volume 27, Laws of Delaware "the New Castle County Building Commission," the defendants in error, was created for the purpose of acquiring, by purchase or otherwise, such real estate in the City of Wilmington as may be necessary for the erection of a county building. Section 4 of the act provides, as follows:

"Section 4. In case the said the New Castle County Building Commission shall for any cause be unable to agree with the owner or owners for the purchase of any lot or lots of land selected by the said Commission as aforesaid for the purpose aforesaid, any judge of the Superior Court, upon application of the said Commission, shall issue a commission under his hand directed to five impartial freeholders of said county commanding them to view the premises and assess the damages which the said owner or owners will sustain by reason of taking of the said land for the purposes of this act, taking into consideration all the circumstances of benefit and detriment to result to such owner or owners, and to make return in writing of their proceedings to said judge at a time in said commission appointed. * * * Upon application of the said the New Castle County Building Commission or any owner or owners of such land to the prothonotary of the Superior Court for New Castle County, he may issue out a writ of ad quod damnum, requiring the sheriff in the usual form to inquire of twelve impartial men of his bailiwick of the damages as aforesaid and their report shall be final. * * * And upon confirmation of the said return or the return of the said writ of ad quod damnum and the payment or deposit of said damages as aforesaid, the said the New Castle County Building Commission shall cause to be recorded in the recorder's office at New Castle County the application, commission and return under which said land may be condemned as aforesaid, together with the receipts and certificates for the payment of said damages."

Among the properties sought by the Building Commission was a lot at the southeast corner of Eleventh and King Streets, extending along Eleventh Street to French Street, being all of the property of Samuel G. Elbert, the plaintiff in error in each of these cases. Being dissatisfied with the damages awarded and assessed by the freeholders appointed by one of the judges of the Superior Court, the Building Commission, as well as Elbert, the owner, applied to the prothonotary of New Castle County for writs of ad quod damnum. The application of the commission asked for a jury to assess "the damages which the said Samuel G. Elbert will sustain by reason of the taking of the said land for the purposes of the said act, taking into consideration all the circumstances of benefit and detriment to result to such owner." The application of the landowner, Elbert, was for a jury to assess "the damages occasioned to your petitioner by the taking of the said land for the purpose aforesaid." Both applications for the writs of ad quod damnum were made on the same day and the writs were issued to the sheriff simultaneously. The same persons were selected as jurors in each case, and at their request, and for their convenience in determining the amount of damages, stenographic notes were taken of the testimony of witnesses produced by the Building Commission and the landowner, Elbert. The returns of the sheriff of his proceedings under the writs were made to the Superior Court at the September Term, A. D. 1913. The inquisition of the jury was under seal, dated the thirtieth day of July, A. D. 1913, and in addition to a description of the property, contained in each case the following:

"We, the undersigned jurors, duly summoned under the annexed writ, having all been severally sworn or affirmed according to law and having gone upon the lands and premises in question, as described in said writ, do award to Samuel G. Elbert, the owner of the lands and premises proposed to be taken, appropriated and used by the New Castle County Building Commission, acting on behalf of New Castle County, for the purpose of the erection of a county building the sum of thirty-nine thousand ($ 39,000) dollars. * * *"

On the first day of the September Term, 1913, of the Superior Court, Robert H. Richards, Esq., as attorney for the landowner, filed a motion to quash the writ of ad quod damnum issued in each case, and also filed twenty-two exceptions to the sheriff's return in each case. In the proceedings instituted by the landowner (No. 5), leave was also asked to abandon, discontinue and stay the writ issued on application of the landowner. The exceptions filed were the basis of a motion to vacate and set aside the writs, and after the abandonment of some of the exceptions the others were consolidated into six, which are sufficiently stated in the opinion of the court. These motions were heard together by the court below, at which time testimony of witnesses was heard, and thereafter the motions were denied and the sheriff's return confirmed. See 4 Boyce 388, also 88 A. 608.

With the exception of the first assignment of error in case No. 5, the assignments of error in each case are identical. The first assignment of error in case No. 5 is, as follows:

"1. That the court below erred in denying the motion of the said plaintiff in error for leave to abandon, discontinue and stay the writ of ad quod damnum, numbered 33 to the September term, 1913, of said court; whereas the said plaintiff in error insists that the said motion should have been granted and the judgment of the said court below thereon should have been in favor of the said plaintiff in error."

The other assignments of error are as follows:

"2. That the court below erred in denying the motion of the said plaintiff in error to quash the said writ of ad quod damnum; whereas the said plaintiff in error insists that the said motion should have been granted and the judgment of the said court below thereon should have been in favor of the said plaintiff in error.

"3. That the court below erred in denying the motion of the said plaintiff in error to vacate and set aside the return to said writ of ad quod damnum; whereas the said plaintiff in error insists that the said motion should have been granted and the judgment of the said court below thereon should have been in favor of the said plaintiff in error.

"4. That the court below erred in entering judgment confirming the return to said writ; whereas the said plaintiff in error insists that the judgment of said court should have been a judgment refusing confirmation of said return."

Both cases were heard together in this court.

The judgment is affirmed.

Robert H. Richards for plaintiff in error.

William S. Hilles for defendants in error.

CURTIS CHANCELLOR, and BOYCE, CONRAD and RICE, J. J., sitting.

OPINION

CURTIS, Chancellor

A preliminary question arises on the motion of the defendants in error made in this court in each case to dismiss the writs of error, because the proceeding taken in each case is not according to the course of the common law and that certiorari is the proper remedy. The right to a review in an appellate tribunal exists only when and to the extent provided in the Constitution and laws of this state. By Article 4, § 12, of the Constitution, the Supreme Court has jurisdiction "to issue writs of error to the Superior Court and to finally determine all matters in error in the judgments and proceedings of said Superior Court." There is no question but that the proceeding is reviewable in this court. Though the act provides that the report of the jury shall be final, and provides no appeal, or other method of review of the action of the Superior Court in confirming the report still there is in the Superior Court a judicial decision, or, at least, a final order in a proceeding, jurisdiction of which is rightly conferred on that court. The order of confirmation is a final order. 2 Lewis on Eminent Domain, § 803. The writ of ad quod damnum is a common-law writ, and is in the nature of an original writ. 2 Woolley on Delaware Practice, § 1449. It is issued by the prothonotary on application made in proper form, and under the statute controlling this case is returnable to and made subject to confirmation by the Superior Court. The necessity of confirmation by the court is not an unusual feature of acts of the Legislature conferring power to condemn land for public purposes. The confirmation is a judicial decision and implies judicial action. The...