Rice v. The Danville, Lancaster & Nicholasville Turnpike Road Co.

• Decision Date: 19 June 1838
• Parties: Rice and Others v. the Danville, Lancaster & Nicholasville Turnpike Road Company.
• Court: Kentucky Court of Appeals

37 Ky. 81

Rice and Others v. the Danville, Lancaster & Nicholasville Turnpike Road Company.

Court of Appeals of Kentucky.

June 19, 1838

FROM THE CIRCUIT COURT FOR GARRARD COUNTY.

Mr Turner for plaintiffs.

Mr Owsley for defendant.

The Chief Justice did not sit in this case.

OPINION

MARSHALL JUDGE

Statement of the case.

This was a proceeding by the President and Directors of the Danville, Nicholasville and Lancaster Turnpike Road Company instituted in the Garrard Circuit Court, for the purposes of appropriating to the use of said Company, for the objects contemplated by its charter, so much of the lands of George Rice, Joshua Burdett, John Byers and Asael Davis, lying within the county of Garrard, as was necessary for making the road.

The act of incorporation, sections fifteenth and sixteenth authorizes the directors, when they can not acquire the lands necessary for the road by contract, to petition the resident Judge of the circuit within which the lands on which it is proposed to construct the road may be situated, for the appointment of appraisers to assess the damages which the owners of such lands will severally sustain by reason of the appropriation thereof to the use of the corporation. The four succeeding sections prescribe the manner of proceeding, from the presentment of the petition until the report is returned and finally acted on by the Judge. The last of these sections (the twentieth) requires the appraisers to report to the Judge, under their hands and seals, within ten days from the receipt of their commission, reciting the order of their appointment, and specifying the parcels of land & c., with all necessary certainty, & c. And if the parties are dissatisfied, authorizes the Judge, on hearing them, to modify the assessment as shall appear just. By the twenty first section it is enacted, that, on payment of the damages thus assessed, together with the expenses of the assessment, as settled by the Judge, or on depositing the amount for the use of the owners in such place as the Judge shall in writing direct, " the corporation shall immediately become entitled to the use of the land," & c., for the purposes aforesaid. And that the report, with the modification of the Judge, if there be any such modification, may be recorded in the same office, in the same manner, and with the same effect, as deeds are recorded, without other proof than the certificate of the Judge, that the report is genuine.

The present petition addressed to the Judge of the Garrard Circuit Court, was filed in that Court, as its March term, 1836. On a summons returnable to a subsequent day of the term, the land owners appeared, and with their consent, five persons were named as appraisers, to go upon the lands through which the road was to pass, and assess against the company the probable damages which might be sustained by the defendants, respectively, in consequence of the construction of the road as proposed, being directed to consider the advantages or disadvantages attendant on the same, and to report to the Court at its next term.

At the March term, 1837--the case having in the meantime been regularly continued--the commissioners are stated to have filed their report therein. Which report, bearing date the 2d of February, 1837, and signed by four of the appraisers or commissioners named in the order of March, 1836, recites that the undersigned being appointed at the June term of the Garrard Circuit Court, 1836, to view and assess the damages, & c., met?? in pursuance of the above recited order, about the 1st of August last, and after being first sworn, & c., proceeded to view, & c., " and reported that, we considered the said Davis, Byers, Rice and Burdett sustained no damage from the present location of the D. L. & N. Turnpike road; that although they might be put to inconvenience, in re-setting old and making new fences, yet the advantages accruing to them from the location of said T. P. road, would remunerate them for all expenses thereby incurred, and all inconveniences thereby sustained; " that understanding that report to have been misplaced or lost, they therefore report,upon application, that such was their report at the time referred to; and they still report that they believe the parties above named sustain no damage from the present location of the road, & c.

To this report the owners of the land filed exceptions, which are copied into the record, and the record proceeds to state, that the Court being sufficiently advised of and concerning the same, " and being also satisfied, from examination of witnesses and otherwise, that the former report was regularly made out, but has been lost or mislaid--It is ordered that said exceptions be overruled, and said report confirmed."

For the reversal of this order, a writ of error is prosecuted by Rice and the other owners of the land mentioned in the petition and report; who, by the assignment of errors, bring in question every step taken in the proceeding, and every order and opinion of the Court.

It is objected, however, that there is no such judgment or order as will authorize a writ of error from this Court. This objection, which forms a preliminary question, can only be sustained on the ground, either that the order is not judicial in its character, or that it is not final.

The power conferred upon certain circuit judges, by the act incorporating the Danville, Nicholasville and Lancaster Turnpike road Company--to appoint appraisers to assess the value of land which may be taken for the road; the advantages, and disadvantages of the road to the proprietors, & c., to receive the report of the commissioners, and, where either party is dissatisfied, to hear them, and modify the assessment as may appear to be just--is a judicial power; and the proceedings and decisions of the judge--whether the power be exercised in court, in the country, or at his chambers--are subject to revision by the Court of Appeals--whenever an authentic record of the proceedings can be obtained; and, though the act seems to contemplate proceedings in the country only, they may, nevertheless, be had in a circuit court, where the record may be made up in the usual mode.

The object of the statute, in requiring the proceeding to be had before a judge, under his authority and direction, and subject to his final inspection and modification, was to ensure its substantial conformity with the requisitions of the act itself, and its consequent sufficiency as a means of effectuating the object intended to be attained by it. From this manifest purpose of the statute, as well as from the express nature of the agency committed to the Judge, it must be implied that it was intended that he should not only follow the provisions of the statute himself, but that he should compare the proceedings brought before him, with its requisitions--especially when either party objected to them--and that his action on the subject should be determined by his sense of their conformity or non-conformity. But this power of comparing the proceeding with the law by which it is regulated, and controlling it according to his opinion of the law, is especially judicial...