Mitchell v. Thornton

• Decision Date: 12 July 1871
• Citation: 62 Va. 164
• Court: Virginia Supreme Court
• Parties: MITCHELL v. THORNTON & al.

62 Va. 164

MITCHELL v. THORNTON & al.

Supreme Court of Appeals of Virginia.

July 12, 1871

Absent, ANDERSON, J.

1. Upon application for the change of a road, the order directs the viewers to view the proposed alteration of the road (describing it), and to return to the court a report of such view in the manner prescribed by law. It would have been more formal, and therefore better, to follow the terms of the law in the order; but the order is substantlally and sufficiently conformed to it.

2. Under the present law, Code, ch. 52, § 6, the viewers appointed to view the alteration proposed in a road, and report to the court, are not required to be sworn. And though the order appointing them directs them to be sworn, it need not be done.

3. What is a sufficient compliance by the viewers in their report with the directions of the 2d and 4th sections of the act Code, ch. 52.

4. The writ of ad quod damnum, issued in such a case, is defective for not directing any enquiry as to " damage to the residue of the tract beyond the pecnliar benefits which will be derived in respect to such residue from the road." And the inquest taken on such writ, not making this enquiry, is defective. And for this defect both the writ and inquest will be quashed, if the motion to quash is made at the proper time.

5. In such a case the defendant not having made any motion to quash the writ and inquest in the County court, but going to trial on the merits, he waived the objection to the writ and inquest; and it is too late to move to quash them or any other of the proceedings in the Circuit court.

6. Although in such cases there is an appeal as of right, and viva voce testimony is heard in the Circuit court on such appeal, yet, as a general rule, a party must make any objections he may have to the proceedings in the court of original jurisdiction; and if he permits such proceedings, to progress to the final trial of the case, without making the objections, he will be held to have waived them, and cannot make them for the first time in the appellate court.

7. In such a case on appeal by the defendant, it is his right and duty to begin; the judgment of the County court being prima facie right.

8. The regular mode of objecting to the inquest of the jury on account of the small amount of the damages assessed, is, by a motion to quash the inquest; on which motion evidence will be heard to prove the damage assessed is insufficient. Until this is shown the inquest is conclusive on the question of damages.

9. This objection may, however, be made on the hearing; and evidence may be then introduced by either party, to show the damages assessed are either adequate or inadequate.

10. So in such case upon appeal by the defendant, he is entitled to introduce evidence in the Circuit court to prove the inadequacy of the damages assessed by the inquest.

11. In assessing the damages in such a case, the defendant is entitled to have the value of the land taken for the road without deduction, and such further damage as the residue of his tract will sustain beyond the peculiar benefits which will be derived to said residue from the road.

This was a proceeding in the County court of Carroll county, by Wm. C. Thornton and James B. Crockett, to have a change made in the route of a public road in tat county. The route as proposed passed through the lands of A. H. Mitchell. The case is fully stated by Judge Moncure in delivering the opinion of the court.

Tipton, for the appellant.

Walker, for the appellee.

OPINION

MONCURE, P.

This is a supersedeas to a judgment of the Circuit court of Carroll county, affirming a judgment of the County court of said county, establishing an alteration in a public road. The proceedings in the case were, in substance, as follows:

On the 5th of October 1868, on motion of William C. Thornton and James B. Crockett, viewers were appointed by the County court, to view the proposed alteration and return their report to the court.

On the 6th of January 1869, the viewers returned their report; and it appearing that A. H. Mitchell, through whose lands said road will pass, if altered as proposed, objected to the location of the same through his lands, and claimed damages therefor, it was ordered that he be summoned to appear on the first day of the next term to show cause why such alteration should not be made; which summons was accordingly awarded and executed.

On the 1st of February 1869, said Mitchell appeared in obedience to the summons, and entered himself as contestant to the application; and on his motion, a writ of ad quod damnum was awarded.

The writ was accordingly issued, and an inquest was taken and returned in pursuance thereof; in which inquest, the jury stated that the proposed alteration would be of no damage to said Mitchell if his land were taken therefor as proposed.

On the 4th of August 1869, the case came on to be heard, and sundry witnesses being examined, and the court having fully considered, as well the report of the viewers and the inquest of the jury, as the evidence adduced, was of opinion, that the said alteration should be made and established; which was accordingly ordered: and the applicants, Thornton and Crockett recovered their costs of Mitchell. Whereupon, the said Mitchell took an appeal, as of right, from the said judgment of the County court to the Circuit court.

On the 27th day of the same month, August 1869, the cause was docketed in the Circuit court, and continued; and on the 9th of September 1870, it came on to be heard in that court. But before the opening of this case upon its merits, sundry motions were made by the appellant, Mitchell, and overruled by the court. He moved as follows, to wit:

1st. To quash the order made by the County court appointing viewers.

2dly. To quash the report of the viewers.

3rdly. To quash the writ of ad quod damnum, and the inquest of the jury returned in obedience to the same.

4thly. To set aside the verdict of the inquest, upon the ground that the same was made and founded in mistake and misapprehension; and also upon the ground that one of the jurors was related to the wife of Crokett, one of the appellees: and the appellant offered witnesses to prove these facts. This motion, with the others, was overruled, on the ground that the record showed no objections to either the order, report of viewers, or the inquest of the jury, having been made in the County court. Thereupon, the parties announced themselves ready; and the court held that the appellant should begin his case; and a witness was introduced by him, and the question asked, " what damage the appellant would sustain if the alteration of the road was established as proposed?" Upon objection, this question was not permitted by the court to be answered; on the ground that the inquest of the jury was conclusive on the question of damage. The appellant then moved the court to set aside the inquest of the jury, on the ground of evidence discovered since the appeal was granted; and introduced a witness to sustain the motion; but the court overruled it, and refused to hear the witness. And, thereupon, came sundry witnesses for each party, who being sworn and fully heard, and all the circumstances being considered, the court was of opinion that there was no error in the judgment of the County court, and affirmed the same with costs. And the court certified that all the testimony heard was upon the question of the convenience or inconvenience, to the public as well as individuals; and that the court refused to hear testimony on any other question, in reference to establishing said alteration, and excluded all the testimony offered by the appellant to prove that he sustained damage by such alteration, and refused to permit him to prove that he sustained such damage. This certificate was given, that it might have the effect of a bill of exceptions taken by the appellant.

To this judgment of the Circuit court, a supersedeas was awarded by a judge of this court, on the petition of the said appellant, Mitchell; and that is the case we now have to decide.

In the said petition there are several assignments of error, which we will now proceed to consider in the order in which they are assigned. These errors, in the words in which they are assigned, and our views in regard to each of them, are as follows:

1st. " The court erred in refusing to quash the order of the County court appointing viewers."

The Code, ch. 52, § 6, directs viewers to be appointed " to view the ground and report to the court the conveniences and inconveniences that will result, as well to individuals as the public, if such road, & c., shall be as proposed; and especially whether any yard, garden, orchard, or any part thereof, will in such case have to be taken."

The order in this case was, that the persons named as viewers, " being first duly sworn for that purpose, do view a proposed alteration of the Dry Spur road," (describing it,) and " return to the court a report of such view in the manner prescribed by law."

It would have been more formal, and therefore better, to follow the terms of the law in the order. But we think the order substantially and sufficiently conforms to the law. In directing the viewers " to return to the court a report of such view in the manner prescribed by law," the terms of the law seem, in effect, to be embodied in the order.

" 2d. The court erred in refusing to quash the report of the viewers, and overruling appellant's motion to do so."

The duties of the viewers are prescribed in ch. 52, § 6 of the Code, providing for their appointment as above mentioned. The 7th section, which speaks only of " the commissioner acting under the preceding or the 4th section," may also be applied...