Erie v. Heath
| Citation | 9 Ind. 530 |
| Parties | The Lake Erie, Wabash and St. Louis Railroad Company v. Heath. the Lake Erie, Wabash and St. Louis Railroad Company v. Heath |
| Decision Date | 11 December 1857 |
| Court | Supreme Court of Indiana |
From the Tippecanoe Circuit Court.
The judgment is affirmed, with 1 per cent. damages and costs.
Samuel A. Huff, Zebulon Baird and John M. La Rue, for appellants.
Robert C. Gregory and Robert Jones, for appellee.
OPINION
The Lake Erie, Wabash, and St. Louis Railroad Company, having failed to agree with Robert Heath for the right of way for their road through his land, filed an instrument of appropriation of the same, accompanied by maps, plans surveys etc., in the clerk's office of Tippecanoe county, being the county within which the land was situated. Thereupon the judge of the Tippecanoe Circuit Court appointed three appraisers to assess the damages upon said appropriation, who valued them at 1,000 dollars, and so reported.
Upon the report being made to the Circuit Court, Heath appeared and excepted to it. He also filed a complaint against the company, asked process upon it, and that his damages might be assessed by a jury. The Court set aside the assessment of the appraisers, and ordered the damages to be assessed as asked by Heath. The jury found them to be 1,600 dollars. The company moved the Court to set aside the inquest; the Court overruled the motion, and rendered judgment against the company for 1,600 dollars and costs. Exceptions were duly taken at every step of the proceedings.
The only question of importance presented by the record arises upon the action of the Court in setting aside the report of damages, by the appraisers, and ordering them to be assessed by a jury.
The report was probably rightly set aside for substantial defects. McMahon v. Cincinnati, etc., R. R. Co., 5 Ind. 413. In what manner should the Court have ordered a new assessment to take place?
It is contended, on the one hand, that the clause in the constitution which declares that, "in all civil cases, the right of trial by jury shall remain inviolate," forbids an assessment of damages except by jury, unless the same be waived; while on the other, it is insisted that that clause has no application to the case at bar, because it is not a civil case.
The clause in the constitution of the United States touching jury trials, it may be remarked, has no application here, as it operates only upon the Courts of the United States, and not upon those of the several states. Barron v. Mayor, etc., 7 Pet. 243; Herman v. State, 8 Ind. 545, on p. 552.
The above provision in our own constitution, applies in terms but to civil cases. What, then, within its meaning, is a civil case? Not every case which is not a criminal, is a civil one. "Civil case" had a definition, a meaning, at common law, when the early constitutions of this country were formed; and it has been held that the term was used in those constitutions in the common-law sense. See Willyard v. Hamilton, 7 Ohio 449; Livingston v. Mayor, etc., 8 Wend. 85; Beekman v. Saratoga, etc., R. R. Co., 3 Paige 45; Gold v. Vermont, etc., R. R. Co., 19 Vt. 478; Wells v. Caldwell, 1 A.K. Marsh. 441; Harris v. Wood, 6 B. Mon. 641; and the cases cited in French v. Lighty, ante, p. 475. See, also, Armstrong v. Jackson, 1 Blackf. 374.
It may be fairly argued that the term should be construed, in our constitution, to embrace such as were treated as civil cases in this state when the constitution was adopted; and such has been the rule acted upon in some of the states. See Sedgw. on Stat. 542. But this rule would not extend the meaning of the term so as to embrace legal proceedings in all cases except criminal. It has not been the practice in this state to try chancery causes, nor to assess damages in the laying out of highways, by jury (see Kemp v. Smith, 7 Ind. 471); nor to try contested elections by that tribunal. Other examples might be named. Chancery causes, it should be observed, are, in the system of practice provided for by the new constitution, expressly merged in the class of civil actions. What has been the practice in the assessment of damages to real estate taken for public works? On appeals in such cases to the Circuit Court, the trial seems uniformly to have been by jury. It was so in Rubottom v M'Clure, 4...
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