*But where the statute provides for an assessment of land damages, by a jury, at the suit of the party aggrieved, the costs to be paid by the company, this was held not to include the fees of witnesses examined by the jury, on the part of the claimant.27 18. But the terms "costs and expenses incurred," were held to include the costs of witnesses, and of summoning the viewers.28 19. If the act makes no provision for compensation to the commissioners, they have no power to order the company to pay the cost of their expenses and services.29

20. But where the party whose costs are rightfully denied in the Court of Common Pleas, appeals upon that question, and the judgment is affirmed, he must pay costs to the other party, consequent upon the appeal.30

21. It is no objection to the competency of a juror, in this class of cases, that he had been an appraiser of damages upon another railway, in the same county, or that he is a stockholder in another railway which had long before acquired the lands necessary for its use.31

upon its proper basis. One must have had experience in regard to the particular point, as laying a railway over a wharf, in order to give an opinion of the extent of the injury caused thereby, and it is not sufficient that he may have had experience and skill in other matters pertaining to the building and operation of railways. Boston & Worcester Railw. v. Old Colony & F. R. Railw., 3 Allen, 142. The court in this case declined to set aside the verdict for land damages, because testimony of the sale of upland at a considerable distance from the wharf, and of the price paid four months before the time of making the location, was received, and also of the number of trains passing over the land taken, and of the number of vessels and amount of lumber, wood, and coal, &c., coming to the wharf.

Railroad v. Johnson, 2 Wharton, 275.

28 Penn. Railroad v. Keiffer, 22 Penn. St. 356; Chicago & Mont. Railw. v. Bull, 20 Illinois, 218.

29 At. & St. L. Railroad v. The Commissioners, 28 Maine, 112.

30 Harvard Branch Railw. v. Rand, 8 Cush. 218; Commonwealth v. Boston & Maine Railw., 3 Cush. 56. But see § 71, note 10, ante, in regard to the course of proceeding, in estimating land damages. Where the statute gives an appeal, in estimating land damages, to a court of common-law jurisdiction, and does not prescribe the mode of trying the appeal, it will be tried by commissioners, that being the usual course of trying cases of that class, in commonlaw courts. And a statute requiring parties to be allowed a trial by jury, in all cases proper for a jury, will not alter the mode of trying such appeals. Gold v. Vt. Central Railw., 19 Vt. 478.

31 People v. First Judge of Columbia, 2 Hill (N. Y.), 398. The tribunal for assessing land damages should be free from interest or bias in order to meet

* 22. Courts do not generally possess the power to revise the assessment of land damages, by a jury or other tribunal appointed by them for that purpose, upon its merits, and set it aside, upon the mere ground of inadequacy, or excess of damages.82

23. Where commissioners assessed land damages at a sum named, and stated further, that the plaintiff was to receive an additional sum in a certain contingency, and the report became matter of record, it was held that debt would not lie, for the additional sum, upon averring the happening of the contingency,33

24. Where the statute gave the court a discretion, to accept and confirm the inquest of land damages, or order a new inquest, "if justice shall seem to require it," it was held they might set aside the report for mere excess of damages, and that the Supreme Court might do the same, when the proceedings are brought up by certiorari.34

the constitutional requirement for just compensation. Powers v. Bears, 12 Wis. 213. But see Strang v. Beloit & M. Railw. Co., 16 Wis. 635.

32 Willing v. Baltimore Railw., 5 Whart. 460. As to what is good cause for setting aside the report of commissioners, see Bennet v. Railw., 2 Green, 145; Van Wickle v. Same, id. 162; R. & S. Railw. v. Budlong, 6 How. Pr. 467.

In Missouri, when the report of commissioners is set aside, the court must appoint a new board. Hannibal & St. Joseph Railw. Co. v. Rowland, 29 Mo. 337. But this rule will not apply where the report is recommitted to the same board, with instructions to pursue a different rule in estimating damages. Ib. 33 W. & P. Railroad Co. v. Washington, 1 Robinson (Va.), 67. See also Dimick v. Brooks, 21 Vt. 569.

34 Pennsylvania Railw. v. Heister, 8 Penn. St., 445; Same v. McClure, ib.; Same v. Riley, ib.; Same cases, 2 Am. Railw. C. 337.

OTHER MATTERS OF PRACTICE, IN REGARD TO ASSESSING LAND DAMAGES.

All the commissioners must be present and act, in all matters of a judicial character. Crocker v. Crane, 21 Wend. 211. In regard to the mode of selecting and impanelling juries, for assessing land damages against railways, the following cases may be referred to: Penn. Railw. v. Heister, 8 Penn. St. 445, which decides, that where the statute requires the sheriff to summon the jury, it is irregular for him to select them from a list prepared by his deputy. And Vail v. Morris & Essex Railw., 1 Zab. 189, where it is held, that commissioners appointed to value the land of E. V. upon one route, adopted by the company, cannot appraise the land of the same person, when the company adopt a different route, across the land.

In regard to the right of appeal, which is given in terms to the party aggrieved,

* 25. It does not seem important, where the statute in terms allows either party to take compulsory proceeding to assess land damages upon the parties failing to agree, that there should have been any previous attempt to agree, in order to give jurisdiction to the courts to assess the amount of such compensation.35

it has been held to extend to the railway company, as well as the land-owner. Kimball v. Kennebec & Portland Railw., 35 Maine, 255.

No appeal lies from the order of the Supreme Court, confirming the report of commissioners on the appraisal of land damages for land taken under the general railway act. The act provides for no such appeal to the Court of Appeals, and the remedy, in the act, is intended to be exclusive. And besides, the Supreme Court exercise a discretion, to some extent, in confirming such reports, and appeals will not, upon general principles, lie to revise such adjudications. New York Central Railw. v. Marvin, 1 Kernan, 276; Troy & Boston Railw. v. Northern Turnpike Co., 16 Barb. 100.

Where the special act of a railway company required them to give the landowner ten days' notice of the time when a jury would be drawn to assess damages, it was held that a strict compliance with this requirement was indispensable to give jurisdiction, and that the objection was not waived by appearance before the officer at the time the jury were drawn, and objecting to the regularity of the proceedings, without stating the grounds, or by appearing before the jury, when they met to appraise the damages, and objecting to one of them, who was set aside. Cruger v. The Hudson River Railw., 2 Kernan, 190. Mere informalities in the summons, which do not mislead the company, will not avoid the proceeding. Eastham v. Blackburn Railw., 9 Exch. 758; s. c. 25

Eng. L. & Eq. 498.

It is not important that the award should specify the finding upon the separate items of claim. In re Bradshaw, 12 Q. B. 562.

Where the special act of a railway company prescribes a different mode of procedure, in condemning land, from that required by a general law of the state, subsequently passed, the company may pursue the course prescribed by their special act. Clarkson v. Hudson River Railw., 2 Kernan, 304. But it seems to be here considered, that the company may adopt the course prescribed by the general act, if they so elect. And upon general principles it would seem that they should do so, unless there is something in the general act by which the existing railways are at liberty to proceed under their charters. This is the ground of the decision in the last case. North Mo. Railw. v. Gott, 25 Mo. 540. Where the company's special act vests specific and special powers in them, for the benefit of the public (as to build stations of given dimensions larger than the general act provides), it is not controlled by subsequent general acts. London & Blackwall Railw. v. Board of Works, 3 Kay & J. 123; s. c. 28 Law Times, 140.

In regard to the mode of proceeding in such cases, see Coster v. N. J. Railw. & Tr. Co., 4 Zab. 730; Green v. Morris & Essex Railw., id. 486; Pittsfield & North Adams Railw. v. Foster, 1 Cush. 480.

35

Bigelow v. Miss. Central & Tenn. Railw. Co., 2 Head, 624.

*SECTION XI.

The Time Compensation to be made.

1. Opinions conflicting.

2. Chancellor Kent's definition.

3. That of the Code Napoleon.

4. Most state constitutions require it to be con

current with the taking.

5. English cases do not require this.

6. Adequate legal remedy sufficient.

7. Where required, payment is requisite to vest the title.

8. Some states hold that no compensation is requisite.

§ 73. 1. In general, railway acts require compensation to be made, before the company take permanent possession of the land. And it has even been made a question, in this country, whether the legislature could give a railway company authority to take permanent possession of lands, required for their use, previous to making or tendering or depositing, in conformity with their charter or the general law, compensation for the same.2

2. The profound and sensible author of the Commentaries on American Law 3 thus states the rule upon this subject: "The settled and fundamental doctrine is, that government has no right to take private property, for public purposes, without giving just compensation; and it seems to be necessarily implied, that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception, concurrently, in point of time, with the actual exercise of the right of eminent domain."

3. The language of the Code Napoleon is specific upon this point: "No one can be compelled to give up his property * except

1 Lands Clauses Consolidation Act, 8 Vict. c. 18, § 84, et seq.; Ramsden v. Manchester & S. J. & A. Railw., 1 Exch. 723; s. c. 5 Railw. C. 552. In such cases courts of equity will enjoin the company from taking possession until compensation is made, unless the owner consent. Ross v. E. T. & S. Railw., 1 Green's Ch. 422.

2 Thompson v. Grand Gulf Railw. Co., 3 Howard, Miss. 240. The constitution of this state, however, requires a previous compensation to be made. See also Cushman v Smith, 34 Maine, 247.

3 2 Kent, Comm. 340 (7th ed.), 393, and note. The Milwaukee & M Railw. Co. v. Eble, 4 Chandler, 72; Cushman v. Smith, 34 Maine, 247.

Code Napoleon, Book II. Title II. 545.

for the public good, and for a just and previous indemnity." A similar provision existed in the Roman civil law.

4. It is embodied, in different forms of language, into the written constitutions of most of the American states, but not generally, in terms requiring the indemnity concurrently with the appropriation. But practically that view has generally prevailed in the courts.5

3

Lyon v. Jerome, 26 Wend. 485, 497; Opinion of Sutherland, J., Case v. Thompson, 6 Wend. 634. In this case it was held, that it was not indispensable to the opening of a road over the land of an individual, that the price should be paid, or assessed even, before the opening of the road. And in Bonaparte v. C. & A. Railw. Co., 1 Bald. C. C. 205, 216, it was held, that a law taking private property without providing for compensation was not void, for it was said, that may be done by a subsequent law. But the appropriation was enjoined, in that case, till compensation should be made. See also Gardner v. The Village of Newburgh, 2 Johns. Ch. 162; Henderson v. The Mayor, &c. of New Orleans, 5 Miller's Louis. 416; Rogers v. Bradshaw, 20 Johns. 735; Duncan, J., in Eakin v. Raub, 12 Serg. & R. 330, 366, 372; O'Hara v. Lexington Railw., 1 Dana, 232; Hamilton v. Annapolis & Elkridge Railw. C. 1 Md. Ch. 107; Martin, ex parte, 8 Eng. (Ark.) 198. In Bloodgood v. The Mohawk & Hudson Railw. Co., 14 Wend. 51, it is held that this constitutional requirement merely contemplates a legal provision for compensation, and not that such property shall be actually paid for before taken. In Boynton v. The Peterboro' and Shirley Railw. Co., 4 Cush. 467; 1 Am. Railw. C. 595, Shaw, Ch. J. says, “The right to damages for land taken for public use accrues and takes effect at the time of taking, though it may be ascertained and declared afterwards. That time in the case of railroads, prima facie, and in the absence of other proof, is the time of the filing of the location." Charlestown Branch Railw. v. Middlesex, 7 Metcalf, 78; s. c. 1 Am. Railw. C. 383; Davidson v. Boston & Maine Railw., 3 Cush. 91.

In Massachusetts the remedy is limited to three years by statute, and the time begins from the filing of the location. Charlestown Branch Railw. v. County Commissioners of Middlesex, 7 Met. 78; s. c. 1 Am. Railw. C. 383. So where a corporation, after locating a railway over a wharf more than sixty feet, and filing the location with the county commissioners, agreed with the owners of the wharf to extend the road sixty feet on and over the same before a certain day, and the owners, in consideration, agreed to demand no damages for the extension, and the road was constructed according to the location filed before the agreement. Held, that this was not an agreement not to extend the road more than sixty feet, and that the owners of the wharf were not thereby entitled to apply, after three years from the filing of the location, for an estimate of the damages caused by an extension of the road more than sixty feet over the wharf. Ib. By the New York statute of 1851, railway companies have no right to enter upon, occupy, or cross a turnpike or plank road without consent of the owners, except on condition of first making compensation for damages to such turnpike or plank road company. Plank Road Co. v. Buffalo, &c. Railw. Co., 20 Barb. 644.