might be brought here directly from the probate court, and also indirectly through the circuit court from the court of probate, and be affirmed on one appeal and reversed on the other.

right to jury

trial and is

But a reference to these absurd possibilities is not needed. to demonstrate-what counsel do not controvert-that no judgment can be twice appealed from, since the first appeal taken removes it out of the court rendering Statute denies it, and into the court whose supervisory powers are invoked. Only one appeal, it is admitted, can unconstitu be taken. But it is insisted that either party has tional. an election, in the first instance to appeal to this court or to the circuit court. The result of this proposition necessarily is that either party may defeat the constitutional right of the other to have the damages assessed by a jury by the exercise of more diligence than the statute requires in perfecting an appeal to this court. This would be to put it in the power of the party who should be fleetest in the race in all cases to destroy the right secured by the organic law, and this, too, with respect to a matter in which the right cannot be made to depend upon diligence, except such as brings the party within the time allowed for the taking of the appeal. It might well be that the judgment of the probate court involved no semblance of error of law, but much ground for dissatisfaction on one side with the verdict of the preliminary jury. In such case, on a pro forma exception, his adversary, for no other purpose than to destroy the right to have a jury of 12 men pass on the question of damages, with no expectation or desire for a reversal of the judgment for error of law, might take a bill of exceptions, and on it prosecute an appeal to this court, and thereby as effectively defeat and deny the organic right, as if no attempt had been made in the statute to conserve it. It is no answer to say that the party desiring to go to a jury may do so by asserting his right to that end before his adversary moves the judgment into this court. The law does not contemplate such a scramble as this might well lead to in all cases. A right given without reasonable time for its exercise is essentially a right denied. A time prescribed which is to be tolled by the unfettered discretion of the adverse party, and may be termi nated by him upon the instant it begins to run, is not a reasonable time within which to assert a right. This right is guarantied by the constitution. The statute intended to effectuate it prescribes one year as the period within which it may be exercised. Can it be said to be secured to the parties in a constitutional sense when, by virtue of another statute, it is forever lost, and this without any fault or laches on

the part of him who desires to avail himself of it, unless it is claimed within a time-a minute or a moment it may be-in which its assertion is practically impossible? Can it be said that a statute which arms one party with the power to absolutely defeat and destroy a constitutional right secured to his adversary by another statute is a constitutional exercise of the legislative power? We think not. Such statute is, in our opinion, as essentially violative of organic law as if it had undertaken in terms to prohibit the assertion of the constitutional right. Section 3215 of the Code, taken in connection with section 3210 as amended, and section 3619 and 3640, and considered in the light of the rulings of this court in Woodward Iron Co. v. Cabaniss, supra, is just such a statute, in so far as it attempts to authorize an appeal to this court from the judgment of the probate court in a proceeding for the condemnation of land to public uses. We are constrained to the conclusion that that provision is unconstitutional. It is the only warrant for this appeal. With it, the appeal must fall, and the motion to dismiss the appeal is sustained. Appeal dismissed.

Eminent Domain-When Constitutional Right to Have Damages Assessed by a Jury is Infringed.-See-Ex parte Reynolds (Ark.). 44 Am. & Eng. R. Cas. 60, note 56; Kansas City, etc. R. Co. v. Story (Mo.), 36 Id. 584, note 14 Id. 231.

What Constitutes a Legal Jury in Condemnation Proceedings.-Civil Code Colo. § 243 provides, that in condemnation proceedings the landowner may demand a jury of six freeholders" to be drawn as provided in the succeeding sections. Held, that a jury of twelve called from a general panel in attendance in term time, is not a legal jury in such proceedings. And as such statute requires the jurors to be freeholders, it was error to overrule a challenge to one who testified that he owned personal property, but no mining property nor any house or land. Colorado Cent. R. Co. v. Humphreys, (Colorado, March 6, 1891), 26 Pac. Rep. 165.

Qualifications of Juror in Condemnation Proceedings -Juror Who has Acted in Former Panel.-Where a jury in condemnation proceedings disagree, and are discharged, the members of the panel are disqualified to sit as jurors in new proceedings to condemn the same land for the purposes mentioned in the first petition. Where in such case a juror, upon his examination as to his qualifications, denied having formed or expressed an opinion as to the necessity of taking the land for public use, and the contesting party was ignorant of his having acted as a member of the former panel, and of the submission of the question of such necessity to him as a member thereof, until after the second proceedings were ended, he is entitled to have the verdict set aside and to a new trial. Hester v. Chambers, 84 Mich. 562.

Special Questions to Jury in Condemnation Proceedings.-In Michigan, there is no provision in the statutes relative to condemnation proceedings, authorizing the submission of special questions to the jury. Accordingly, error cannot be predicated upon their not answering such questions. The same rule applies to commissioners. Toledo, S. & M. R. Co. v. Campau, 83 Mich. 31; s. c. 83 Mich. 33.

Sufficiency of Verdict of Jury Awarding Damages-Failure to Show Finding as to Benefits. In Colorado, it is provided by statute (Code Civ. Proc. § 254) that in eminent domain proceedings, the verdict of the jury awarding damages shall state a description of the land taken with its value; the damages, if any, to the residue; and the amount and value of the benefits. The judge, although requested to instruct the jury that their verdict should be in the language and form provided by statute, declined to do so, and the verdict of the jury failed to state the amount or value of the benefits, if any, as provided by statute. Held, that the judgment should be reversed. Denver & R. G. R. Co. v. Stark, (Colorado, May 7, 1891), 26 Pac. Rep. 779.

Qualification of Commissioners to Assess Damages-Action by Two Com. missioners out of Three.-The Ill. Em. Dom. Act, requires the appointment of three commissioners to fix compensation, assess damages, etc. The fifth section of the act requires the commissioners appointed to be sworn, and then to meet at a time and place fixed, and then proceed to fix compensation, etc. Held, that the commissioners must all qualify, meet, and hear the evidence, and if the record fails to show a compliance with the statute in this respect, the order is a nullity. If only two commissioners are sworn to discharge their duties, and the report is signed by only two of them, and the record fails to show that the third one was ever sworn to act as a commissioner, or that he ever did act as such, it is insufficient to divest title. Ohio & M. R. Co. v. Barker, (Illinois, Nov. 5, 1890), 25 N. E. Rep. 785. For a note upon the qualification by oath of commissioners, jurors, and viewers to condemn land and assess damages, see ante, p. 46.

STATE ex rel. FARMER

υ.

GRAND ISLAND & WYOMING CENTRAL R. Co.

(Nebraska Supreme Court, Jan. 20, 1891.)

Eminent Domain-Mandamus to Compel Payment of Award.--In an application for mandamus to compel a railway company to deposit with the County judge the amount of an award to the relator for damages on account of the location and operation of the railway across his premises, it appeared in evidence that the right of way had been appropriated and used, and the award duly made, under § 97, chap. 16, Comp. St., from which no appeal had been taken, and the amount not deposited, as required by statute. Held, that the relator take his writ to enforce the duty against the railway company.

MANDAMUS.

Robert Ryan, for relator.

Marquett, Deweese & Hall, for respondent.

COBB, C. J.-This proceeding is brought by the relator for mandamus against the Grand Island & Wyoming Central Railroad Company to pay for its occupation and right

of way of the relator's land, described as the S.

Case stated.

of the S. E. 1 of the S. W. of section 6, township 22 N., range

47 A. & E. R. Cas.-17

25 W., sixth principal meridan, in Blaine county, under § 97, p. 305, Comp. St., which provides: "If the owner of any real estate over which any railroad corporation may desire to locate their road shall refuse to grant the right of way through his or her premises, the county judge of the county in which said real estate may be situated, as provided in this subdivision, shall, upon the application of either party, direct the sheriff of said county to summon six disinterested freeholders of said county, to be selected by said county judge, and not interested in a like question, unless a smaller number shall be agreed upon by said parties, whose duty it shall be to carefully inspect and view said real estate, and assess the damages which said owner shall sustain by the appropriation of his or her land to the use of said railroad corporation, and make report in writing to the county judge of said county, who, after certifying the same under his seal of office, shall transmit the same to the county clerk of said county for record, and said county clerk shall file, record, and index the same in the same manner provided for the record of deeds in this state, and such record shall have the like force and effect as the record of deeds, in pursuance of the statute in such cases made and provided; and if said corporation shall, at any time before they enter upon said real estate for the purpose of constructing said road, pay to said county judge for the use of said owner the sum so assessed and returned to him as aforesaid, they shall thereby be authorized to construct and maintain their said road over and across said premises: provided, that either party may have the right to appeal from such assessment of damages to the district court of the county in which such lands are situated, within sixty days after such assessment; and in case of such appeal the decision and finding of the district court shall be transmitted by the clerk thereof, duly certified, to the county clerk, to be filed and recorded as hereinbefore provided in his office; but such appeal shall not delay the prosecution of the work on said railroad, if such corporation shall first pay or deposit with such county judge the amount so assessed by said freeholders. Such railroad company shall in all cases pay the costs of the first assessment provided, that if, on appeal, the appellant shall not obtain a more favorable judgment and award than was given by said freeholders, then such appellant shall be adjudged to pay all the costs made on such appeal: provided, further, that either party may appeal from the decision of the district court. to the supreme court of the state, and the money so deposited shall remain in the hands of the county judge until a final decision be had, subject to the order of the supreme court."

Under this statute, application was made to the county

judge of Blaine county by the relator for the appointment of six disinterested freeholders of the county to appraise the damages to the lands described, and notice was given to the Grand Island & Wyoming Central Railroad Company that on February 15, 1889, James Hanna, James Loughron, F. N. Norton, Rush Minor, James McMillen, and William Rittenhouse, commissioners duly appointed by the county judge of Blaine county, would proceed to assess the damages accruing to the relator by reason of the appropriation of a strip of land for right of way upon and through the land hereinbefore described, which said commissioners made their report in writing to the county court that on February 15, 1889, the time fixed in the notices to the owners and interested parties, they together personally examined the several parcels and tracts of land and lots described, together with the improvements thereon, and upon such view assessed the damages which the owners and parties interested would sustain by the appropriation thereof To George W. Farmer's timber culture entry, damages $400. The relator alleges that he is a citizen and resident of this state, and has continuously for four years been in possession of the lands described, and that on March 9, 1885, he filed upon the same, under the laws of the United States, his timber culture claim of title thereto, and has ever since remained in possession, complying in all respects with the provisions of law granting title thereto, and fully expects to perfect his title to the same; that on July 15, 1886, the said railroad company entered upon his said claim, and appropriated six acres for its railroad purposes, without compensation to the relator, or ad quod damnum proceedings for that purpose. The answer of the railroad company, as respondent, admits that the relator has a timber claim filing on the land described, and had the same at the time of locating the line of railroad thereon; that at the time of the location the tract was wild and uncultivated, and what rights the relator had were unknown. The respondent admits that it has never paid the relator, or any one else, any consideration for its right of way, nor taken any steps of condemnation under the laws of this state, and denies that the damages for its appropriation and occupancy of the right of way have ever been legally determined under ad quod damnum proceedings, as provided by statute. The respondent sets up that it never had notice of the proceedings by commissioners appointed by the county judge of Blaine county awarding damages for right of way to the relator, and had no opportunity to offer objection to any of the commissioners, nor had it any notice of the time and place that such commission would inspect the premises and award the damages; that the commission was not legal