Railroad Company v. Foreman.

• Decision Date: 27 September 1884
• Citation: 24 W.Va. 662
• Parties: Railroad Company v. Foreman.
• Court: West Virginia Supreme Court

24 W.Va. 662

Railroad Company

v.Foreman.

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1884

Decided September 27, 1884.

(Woods, Judge, Absent.)

1. The matter in controversy in the suit or proceeding, on which judgment is rendered, must not only be of the value of one hundred dollars, exclusive of costs, but the controversy in relation to the matter of that value must be continued by the writ of error, to give the Supreme Court of Appeals jurisdiction, (p. 668.)

2. Though in a case, where a railroad company is seeking to condemn lands for its track, the defendant with a view to certain preliminary steps proposed to be taken by him waives for the time a right to have his damages assessed by a jury of twelve freeholders, yet when these preliminary matters are disposed of by the court's refusal to entertain the n, he may ask the court to have his damages assessed by such a jury, and his request should be granted, (p. 659.)

3." The peculiar benafits to b3 derived with respect to such residue from the work to be constructed," which are to be excluded in estimating the damages to the residue of the tract (chapter 80 of Acts of 1882) are such benefits, as particularly and exclusively affect the particular tract of land, whereof a portion is to be condemned, and not advantages of a general character, which may be or are derived in common by the owners of land along the line of improvement or benefits derived by the country at large, (p. 672.)

4. Though the oath taken by a jury, who assess damages in a condemnation case, may not be in the exact form, in which such oath should be administered, yet, if it be apparent, that the jury had before them the proper matters for their consideration, and that the plaintiff in error could have suffered no damage because of any informality in the oath, the verdict ought not on such account to be set aside, (p. 671.)

5. In the trial of such a case it is not an error, for which the Appellate Court would reverse, that the circuit court permitted a witness to answer the following question against the protest of the railroad company: "State what in your opinion would be a fair compensation for the damages to the residue of the tract beyond the peculiar benefits, which will be derived in respect to residue from the work to be constructed." (p. 673.)

Green, Judge, furnishes the following statement of the case:

This was a proceeding under chapter 18 of the Acts of 1881, instituted by the Grafton and Greenbrier Railroad Company to take portions of the lands of numerous persons in Taylor county, through which said railroad would run. The land so taken was, as the application states, to be taken as the road-bed of said railroad; and ten days' notice that said railroad company would apply to the circuit court of Taylor county to appoint commissioners to ascertain what would be a just compensation to these persons for the land proposed to be taken of each ot them for the purpose of constructing and operating this railroad, was duly served on all these persons including Lucas Foreman; and the written application was filed, and the motion to appoint these commissioners was docketed on the return day of the notice in the circuit court of Taylor county. The application stated among other things, that the applicant desired to take for the purposes of a road-bed a strip of land nearly parallel with and near to Tygart's Valley river off the west side of certain tracts ot land in said county; and among these tracts named is a tract owned by Lucas Foreman, on which he then resided, stating the tracts of land on which it abutted. The application stated, that there were no liens on any of these tracts of land; and the applicant prayed the court to appoint commissioners to ascertain wdiat would be a just compensation to each of the persons, on whom the notice was served, for the strip of land therein proposed to be taken from him.

This application was filed on July 26, 1882; and on the first day of August the court nominated thirteen disinterested freeholders, of whom the Grafton and Greenbrier Railroad Company struck off four, and all the landholders by their attorney struck off four leaving five, who were appointed commissioners to ascertain, what would be a just compensation to said land-owners named in said application for the lands proposed to be taken from them respectively by said railroad company and for damages to the residue of each owner's land beyond the peculiar benefit to be derived in respect to such residue from the railroad to be constructed and operated thereon by said railroad company, provided however that no damages should be ascertained for the construction of farm-crossings, fences or cattle-guards or for keeping the same in repair. Said commissioners, who at once in open court took the oath prescribed by law, were ordered to make report of their proceedings according to law.

On the next day these commissioners made report that in their opinion three hundred and fifty dollars was a just compensation to Lucas Foreman for so much of his real estate as was proposed to be taken by the applicant, describing the land so taken; and thereupon the Grafton and Greenbrier Railroad Company paid this three hundred and fifty dollars for Lucas Foreman into court. Lucas Foreman filed exceptions to this report, first, because the commissioners took no evidence on which to base their report; second, because they gave him no notice of the time when they would proceed to condemn this land and fix his compensation; and third, because the compensation fixed was inadequate. The court sustained these exceptions; and on motion of Lucas Foreman this report was recommitted to these commissioners with directions to hear such proof as the parties should produce before them, and report to the court. All these proceedings were had on August 2, 1882.

At another term of the court on November 7, 1882, Lucas Foreman filed his petition. It set out all the facts and proceedings above mentioned and proceeded as follows:" Your petitioner waives for the present his objections to the inadequacy of the amount allowed him as damages and his right to have the same ascertained by a jury of twelve freeholders, and asks to file amended and additional objections to this report, because all the proceedings of these commissioners from beginning to end were contrary to law rendering their proceedings illegal and void;" and as such objections he submits, first, that no notice was given him or any one else of the time when the commissioners would enter on his land to assess his damages; second, that the statute provides that he or his attorney may attend and examine witnesses, read depositions and be heard in support of his rights, which rights he was denied; third, because they conducted their proceedings in a hasty manner, in that they went through his land condemned and assessed the damages upon it without his knowledge, all of which was unjust, unfair and illegal. lie asks that the court set aside and declare null and void the proceedings and report thereunder of these commissioners. This petition was demurred to and during the same term, on November 15, 1882, the court sustained the demurrer and dismissed the petition at the cost of Lucas Foreman; and on his motion so much of the previous order as re-committed said report was set aside, and he waiving his exceptions thereto theretofore endorsed on the report, excepted to said report because of the inadequacy of the compensation therein allowed to him, and demanded that the question of compensation to be paid him be ascertained by a jury of twelve freeholders. To this demand the Grafton and Greenbrier Railroad Company objected; and the court overruled the objection and ordered the said compensation to be ascertained by a jury as demanded.

At another term of the court a jury of freeholders selected according to law were sworn "to well and truly ascertain what will be a just compensation to Lucas Foreman for the land taken from him by the Grafton and Greenbrier Railroad Company and for damages to the residue of his land beyond the peculiar benefits to be derived in respect to the residue of his land from the work to be constructed or the purpose, to which the land taken is to be appropriated, and a true verdict render according to the evidence." On April 3, 1883, the jury found the following verdict:" We, the jury, find for the defendant, Lucas Foreman, and assess his damages at four hundred dollars." On another day of the same term, April 5, 1883, the Grafton and Greenbrier Railroad Company moved in arrest of judgment on this verdict, because ! the verdict did not respond to the whole of the question, which the jury was sworn to try and did try, and because the ¹question they were sworn to try was not in accordance with the provisions of section 14 of chapter 18 of Acts of 1881 as amended by chapter 80 of Acts of 1882. The court refused to arrest the judgment on this verdict and rendered judgment in favor of Lucas Foreman against the Grafton and Greenbrier Railroad Company for fifty dollars with interest from April 3, 1883, till paid, and his costs about the trial expended, amounting to eighty-six dollars and eighty-five cents; and thereupon said railroad company paid said judgment and costs but entered its protest, that the same was illegal and erroneous; and the receiver of the court was ordered to pay to Lucas Foreman the three hundred and fifty dollars heretofore paid into court by the plaintiff.

Several bills of exception were filed during the trial; but all the questions raised by them are shown by the first and second bills of exceptions, which were as follows-

No. 1.

"Be it remembered, that upon the trial of this cause before a jury, and after the jury were sworn and impanneled as aforesaid, and after it had been proved to the jury that on the said residue of the tract of land of Lucas Foreman, there was a three foot vein of stone coal on a level with the...