In re Bradley

• Decision Date: 19 May 1899
• Citation: 79 N.W. 280,108 Iowa 476
• Parties: IN RE BRADLEY ET AL.
• Court: Iowa Supreme Court

108 Iowa 476

79 N.W. 280

IN RE BRADLEY ET AL.

Supreme Court of Iowa.

May 19, 1899.

Appeal from district court, Appanoose county; M. A. Roberts, Judge.

This is an application under section 2, c. 186, Laws 20th Gen. Assem., to secure the drainage of wet lands. There was a remonstrance to the petition. Upon the hearing the board of supervisors found against the petitioners, who appealed to the district court. In the district court the cause was assigned for trial by jury. Petitioners moved that this assignment be set aside, and the action set for trial to the court. The motion was overruled, and from that ruling this appeal is taken. Reversed.Baker & Moore and A. F. Thompson, for appellants.

C. F. Howell, for appellees.

WATERMAN, J.

1. We have held that an appeal lies from a ruling such as that in question. Price v. Insurance Co., 80 Iowa, 408, 45 N. W. 1053.

2. We may premise what we have to say with the statement that, in the absence of some special provision requiring it, there is no right to a trial by jury in condemnation cases. The reason for this rule is that at common law it was the practice to enforce the right of eminent domain by special proceedings, without the intervention of a jury. Lewis, Em. Dom. §§ 311, 312; Railroad Co. v. Trout, 32 Ark. 17;Koppikus v. Commissioners, 16 Cal. 248;People v. Blake. 19 Cal. 579;Whiteman v. Railroad Co., 2 Har. (Del.) 514;Dronberger v. Reed, 11 Ind. 420;Anderson v. Caldwell, 91 Ind. 451;Central Branch U. P. R. Co. v. Atchison, T. & S. F. R. Co., 28 Kan. 453;Langford v. Commissioners, 16 Minn. 375 (Gil. 333); People v. Michigan S. R. Co., 3 Mich. 497;City of Minneapolis v. Wilkin, 30 Minn. 140, 14 N. W. 581;Plank-Road Co. v. Pickett, 25 Mo. 535;City of Kansas v. Hill, 80 Mo. 523;Backus v. Lebanon, 11 N. H. 19;Beekman v. Railway Co., 3 Paige, 45;Livingston v. Mayor, etc., of New York, 8 Wend. 85; Pennsylvania Ry. Co. v. First German Lutheran Congregation, 53 Pa. St. 445; 7 Enc. Pl. & Prac. 546. It is therefore no violation of the general constitutional provision that secures to the citizen his property unless deprived thereof by “due process of law” to refuse a jury trial in actions of this nature. Section 1947 of the Code relating to appeals in cases of this kind is as follows: “An appeal may be taken to the district court from the order of the board of supervisors in fixing the assessment upon lands, in the same manner appeals may be taken in the location of roads, and within the same time. * * * The petitioners, or any of them, and claimants for damages as compensation for lands taken or injuries sustained in any such proceedings, may in like manner appeal,” etc. “And the county auditor shall keep a full and complete record of all proceedings in each case, and, upon an appeal being taken, shall make out transcripts thereof as provided in appeals taken from the assessment of damages in cases of the location of roads.” This provides that the appeal may be taken “in the same manner appeals may be taken in the location of roads.” The manner of appeals in road cases was followed in the case at bar. See Code, §§ 1514, 1515. We do not think the method of trial in such cases is included in “the manner” of taking the appeal. By special provision the amount of damages to which the claimant in road cases is entitled is to be ascertained by ordinary proceedings (section 1516), and because of this he is entitled to a jury trial (City of Des Moines v. Layman, 21 Iowa, 154;Sigafoos v. Talbot, 25 Iowa, 214). It is only upon the matter of damages that the claimant is entitled to a jury in road cases. In the case at bar the appeal to the district court was from the action of the board of supervisors in refusing to order the construction of the ditch. We shall enter upon no extended argument to show that this is a special proceeding. Under our statute all controversies in courts of justice are comprehended under one of two heads (Code, § 3424),--actions or special proceedings. An action is a controversy in which one party as plaintiff seeks against another known as “defendant” the enforcement of a private right or the redress of a private wrong. Every other civil controversy is a special proceeding. Id. § 3425. In this matter there is neither a plaintiff nor defendant, though appellees have sought to make it appear there is, by the manner in which counsel entitles the documents filed in this court. Nor is a private right claimed. What is asked is of a public nature. The right of eminent domain cannot be exercised in behalf of private interests only. Unless particularly provided for, a jury is not usually allowed in a special proceeding. See, as to probate of wills prior to the enactment of...