Saint Paul & Sioux City R. R. v. Covell

Kidder, J. This is a special proceeding for the condemnation of land for railway purposes, pursuant to section 452 of the Civil Code of this Territory. This section provides for the institütion of proceedings upon petition of either the owner of the property or the company after due notice to the other party. Upon such petition the District' Judge appoints three disinterested freeholders of the county or subdivision — who must not be interested in a like question — as commissioners to assess the damages. The commissioners must be duly sworn to perform their duties impartially and justly ; they shall “ inspect ” the “ real property ” “ and consider the injury which such owner may sustain by reason of such railroad; and they shall assess the damages which such owner will sustain by such appropriation of his land; and they shall forthwith make report thereof in writing to the clerk of the said court,” etc. “ The report of the commissioners may be reviewed by the District Court, bn written exceptions filed by either party, in the clerk’s office, within sixty days after filing such report; and the court shall take (make) such order therein as right and justice may require, either by confirming, modifying, or rejecting the same, or by ordering a new appraisement, on good cause shown.” And this section further provides, that either party may appeal from the decision of the District Court to the Supreme Court. The Statute above quoted is quite anomalous. We can derive but little light for this case from the decisions of the courts of the different States. Nearly every Statute which we have examined, — 518 — providing for an assessment of damages by commissioners, provides, in express language, for the hearing of testimony of witnesses before them. We do not find the precise terms of our railroad law extant in any of the states or territories. It appears to have been copied from an early, statute of Nebraska — while it was a territory — upon which no decisions appear in the reports. The authorities cited by counsel, as applicable to this case, are, therefore, not strictly analogous. It is proper for me to state here that since the decision of this case in the court below, the Legislative Assembly of our Territory has amended this section so that “ the amount of damages shall be assessed by a jury, and the trial shall be conducted and the judgment entered on the verdict in the same manner as civil actions in the District Court.’’ (Vide, laws of Dakota, 1881, page 32.) This amendment obviates the importance of elaborating this opinion to any considerable extent, except only as to other exceptions to the report of commissioners aside from the “ amount of. damages.” The record herein shows, that proceedings were had and one report was set aside before we come to the report under consideration, but it is only necessary for us to consider what is now before us. The exceptions relate only to the action of the commissioners in making their assessment of damages, which the appellant reduces to four grounds: 1. The hearing of sworn testimony of witnesses. 2. The allowing the oath to be administered to the witnesses by a justice of the peace. 3. The admission of the opinion of witnesses as to the amount of damages; and, 4. The admission of hearsay evidence as to what the company paid for other lands. These exceptions were overruled by the court below, and the report of the commissioners confirmed. In view of the opinion of the court-in relation to the errors assigned’ — each being governed by the same rule — they need not be separately considered, but being of like import, and all in rela — 519 — tion to the action of the commissioners in making the assessment, will be considered together. It was not claimed on the argument tint this law of eminent domain, contained in section 452, is unconstitutional or in conflict with the Organic Act oí our Territory, but the learned counsel for the appellant labored to show that the commissioners on the hearing of the case before them acted without the authority of law, and that their proceedings were “ calculated to destroy the foundations as well as the usages of all legal inquiry.” It must not be lost sight of that the Statute in this case does not provide for the hearing of evidence before the commissioners; if it did, then the authorities cited by the counsel for appellant would be more pertinent to the matter in hand. In New York the Statute provides that the commissioners shall view the premises and “ hear the proofs and allegations of the parties,” and reduce the testimony taken by them to writing. (Laws, 1850, Chap. 140, Sec. 16, as amended laws, 1864, Sec. 4.) The California statute is substantially the same. “The said commissioners shall proceed to view the several tracts of land as ordered by the court or Judge, and shall hear the allegations and proofs of the parties, and shall ascertain and assess the compensation for the land sought to be appropriated.” (Practice Act, 855 ; Railroad Company v. Pearson, 35 Cal., 247.) And such are the Statutes of nearly every State that we have been called upon to examine, or that we have examined without reference thereto. Hence the decisions of courts in 'such States in pursuance thereof. ( Are sections 452 and 453 relative to the assessment of damages in harmony and accord with the settled principles of law ? Upon the application of either party, and after ten days notice to the opposite party, the Judge shall appoint the commissioners. Both parties have due notice of the time and place, when and where the Judge will act in this regard, and can appear before him and take action therein,' if they desire to do so. And upon the refusal of the owner * * of lands to grant the right of way, the corporation, by giving ten days notice thereof, may have the damages assessed, etc. Now it seems to us that the parties have ample — 520 — opportunity to be beard, and to have tbeir “ day in court ” — not only as to the time of the appointment of the commissioners, but as to the time when the damages are to be assessed. These notices imply that the land owner may be heard; that he may assert his rights; give evidence and furnish information. We see nothing that curtails his privileges; the procedure in all respects is fair, open and notorious; and although the mode of procedure is not so full and specific as it might be, yet it is sufficiently ample to meet out strict justice to the parties. Nor does the Statute exclude any essential requirement that would render it unconstitutional, and, therefore, we regard it in harmony and accord with the settled principles of law. In the report before us the commissioners say: “ We went upon the premises and carefully inspected the same, and considered the injury which said owner would sustain by reason of said railroad, and the appropriation of said strip of land by said company for a right of way across said premises, and after hearing the respective parties upon the subject of damages, did ascertain the value of the strip so taken,” etc. This exhibits fairness on the part of the commissioners, and, indeed, not the least partiality herein has been imparted to them by either party. • “ Statutes of this Territory are to be liberally construed with a view to effect its objects and to promote justice.” (Code of Civil Procedure, section 3.) “ A thing which is within the object, spirit and meaning of a Statute is as much within the Statute as if it were within the letter.” (Dwarris, 176.) Again on page 144, No. 6 of the American rules: “ Statutes must be interpreted according to the intent and meaning and not always according to the letter.” And again, No. 4: “It is the duty of courts to so construe Statutes as to meet the mischief and advance the remedy, and not to violate fundamental principles.” In the Spring Garden Street case, 4 Rawle, 192, the Supreme Court of Pennsylvania, says: “ An inquest of this sort is restrained to no particular species of evidence, and may resort to any source of information which the members of it may think proper.” In the matter of William and Anthony streets, 19 Wend., 694, — 521 — the Court says: “ The very first thing required of them ” (commissioners) “ by law after being sworn, is to view the premises affected by the improvement. They are thus to acquire information which there are no means of bringing before the court.” The court further says in this case: “ I entertain no doubt the commissioners may take the opinion of others in whose integrity and judgment they have confidence without swearing them as witnesses. They may converse with all classes of men concerning the business in hand, and collect information in all the ways which a prudent man usually takes to satisfy his own mind concerning matters of like kind. The commissioners must exercise their own judgment at last, but they may first seek light from other minds, the better to enable themselves to arrive at a just conclusion. Such is the law laid down in W. P. R. R. v. Reed, 35 Cal.; also in 6 How., 496; Mill Em. Domain, 253; 32 Cal., 250; 8 Nev., 165; and in many others too numerous to mention. Now in relation to the construction of our Statute as to the duties of commissioners in assessing damages in a case like this, we have come to this conclusion: The commissioners may upon their own motion take testimony relative to the subjects they may be called upon to determine; and they ought to hear evidence relating thereto, when requested and offered by the parties or either of them, appointing a reasonable time and place therefor; that at the same time, notwithstanding their duty to hear evidence thus offered, they are not to be held in their action to a strict compliance with the technical rules as to the admissibility of such evidence ; to do so would almost always inevitably tend to defeat the object and aims oí the Statute, or greatly prolong the proceedings, for they are not usually lawyers and not presumed to be possessed of familiarity with the rules of evidence governing-courts of justice; and their report is not to be rejected or set aside merely because they have in receiving such testimony violated such rules, unless it manifestly appears, or shall be made clearly to appear to the court that the party complaining has been unjustly prejudiced thereby. They may also seek information from all classes of men, and collect it in all the ways that a prudent man usually takes to satisfy his own mind concerning matters of — 522 — like kind, and then they are to consider the injury and assess the damages. If, however, “ good cause ” exists, which does not appear upon the face of the report, “ such as fraud or misconduct on the part of the commissioners or others, by reason of which a fair, full and honest investigation has not been had,” such cause may be shown in the usual manner prescribed by the courts in such cases, or by such rules as the court may adopt for the occasion. In the trial of an action at law, and before a jury, no one principle is more clearly settled than that errors in admitting evidence will be disregarded when the result is shown not to have been affected thereby. And it should appear, in order to set a report aside because irrelevant evidence was admitted that such evidence was the foundation of the award. Therefore, in this case, as the appellant relied altogether upon the admission of evidence by the commissioners in violation of some of the technical rules of evidence, and as nothing appeared which would indicate that the appellant was unjustly prejudiced thereby; but it really affirmatively appeared that he could not have been injured by it, for the award was much less than either witness placed the damages, we cannot say that the District Court erred in not setting aside and rejecting the report. We also hold' that a justice of the peace may properly administer the oath to the parties called before the commissioners as witnesses, and that no error was committed in this case in that particular. The judgment of the District Court is, therefore, Affirmed.* Hudson, J., dissenting. Footnotes [*] Note. — The court below decided a question of interest and costs adversely to the respondent, but as the respondent did not appeal from the decision and bring the matter up, this court cannot consider it.