Chicago & Michigan Lake Shore Railroad v. Sanford

Campbell, Oh. J. The proceedings appealed from were taken under the. general railroad law, to condemn certain lands for a right of way. The appellant demanded a jury, and the verdict was rendered and signed by eight out of twelve. The first question presented refers to this verdict. The clause in the constitution, under which this jury was demanded, declares that, except when to be made by the state, the compensation to be made when property is taken, “ shall be ascertained by a jury of twelve freeholders, residing in the vicinity of such property, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by lato — Constitution, Art. XVIII, § 2. The section of the law referring to the powers of commissioners seems to contemplate that a majority of them may determine the compensation. It also declares that the jury shall proceed to determine the necessity of taking, and the compensation, “in the same manner, and with like effect, as is provided in this section in the case of commissioners, but they shall all be present and act together — 423 — during the proceedings,” etc. — Going. L., § 1965. It is claimed that if the jury are all present and acting, the analogy to the functions of commissioners renders a majority, verdict valid. If the term “'jury,” as used in the constitution, authorizes any thing less than a unanimous verdict, it means ivhat it does not signify in any other part of the constitution, or in any of our old statutes to which our attention has been turned. It is not claimed that in the absence of such a clause the provisions concerning “ trial by jury” would prevent the state from having damages for lauds taken for purposes of necessity assessed by other means. But, when a “jury” is provided, it is insisted bv the appellant that it must be a jury in the common-law sense, deciding only by a unanimous verdict. In examining our old statutes, it will be found that in the early railroad acts, and in the Central and Southern railroad charters, as well as in several others.founded on them, the jury of inquest was allowed to consist of a less number than twelve. And it is claimed that the term “jury” was thereby made to embrace a body of men different from a common-law jury, and more iu the nature of appraisers, — subject to different rules and authorized to act by majorities.' And we are referred to Cruger v. Hudson River R. R. Co., 12 N. Y., 190, where the corresponding clause in the New York constitution was construed to make them no more than a board of appraisers. The court base their decision on former practice and on statutes which allowed such bodies called “juries” to act in that way; and held that no new rule was intended. "We are not satisfied with the reasoning of that case (which is in conflict with Lamb v. Lane, 4. Ohio St. R., 167, where the subject was carefully discussed); but we do not deem it applicable here, as we never had any recognized — 424 — practice of the sort. As the constitution does not limit the number of commissioners except by a minimum, so that- there may be twelve or any other number larger than three, it-is difficult to understand why any tiling was said about a jury, at all, if its proceedings and powers were to be entirely subject to legislative regulation. If a jury does-not mean a body acting substantially like a common-law jury it meanp. nothing at all; and the provision is senseless. Juries of inquest were as well known to the common law as juries for the trial of causes. But, unlike petit juries, they might formerly, in many eases, consist of more or jess than twelve. But there seems to be no authority in modern times, and it is very doubtful whether there ever was. any, favoring the idea that a verdict of twelve or less would be valid that was not unanimous. Our railroad charters, previous to the present constitution, generally, if not universally, have from the beginning denominated the jurors selected to fix the damages a “jury of inquest.” They wore neither called nor treated as mere appraisers; and while there are no decisions in this state on the question whether unanimity was required in their findings, it is probably for the same reason that there are in modern times none concerning the unanimity of petit jurors, — the necessity being taken for granted. It is to be remarked that our present constitution is more specific than that of New York, and requires a jury of twelve freeholders, thus introducing a more stringent rule than that which had obtained here before, and leaving the legislature no discretion as to numbers or quality. We think the constitution will not permit the jury so specifically provided for, to be changed into a mere board of appraisers, or to be treated as any thing but a jury of inquest. The statute must be so construed (as it may fairly be) as to render it valid in this regard. We are not called upon to decide whether the constitution can be satisfied without a concur — 425 — ren.ce of all of the three commissioners, where such are appointed, as the provisions concerning a jury do not strike us as open to any doubt. The verdict is a nullity. But it becomes necessary to inquire further in order to determine whether the ease can be properly sent back for a new jury. The petition was objected to .as insufficient, because, instead of declaring it to be the intention of the company in good faith to construct and finish a railroad “from and to the places named for that purpose in its articles of association,” it avers such an intention only between certain points which are named, including thereby “Division number two,” of the projected road. The section, under which the petition was filed, expressly requires the former averment. But by an amendatory statute of 1867, companies were under certain circumstances authorized “ to designate a division of not less than fifteen consecutive miles ” for construction, with “full power and authority to construct, operate and maintain a railroad” upon “the division thus designated.” — Bess. L. 1867, p. 107-8. We think that when a company has complied with the statute, and designated such a division under circumstances authorizing it, an intention confined in terms to that part of the road would be sufficient, and the provisions of the section prescribing the contents of the petition may be modified according to the amendatory act, inasmuch as under the latter no forfeiture arises from a failure to build other parts of the road. — Bess. L. 1867, p. 108, proviso. But the petition must show the one thing or the other; and if it does not contain a compliance with the original section, it should aver such facts -as to bring it within the amendment. It does not appear that there was. any authority for setting apart division number two, nor that it' is a division of not less — 426 — than fifteen consecutive miles, — all of which should be made to appear in some way. It is also objected that the lands proposed to he taken are not specifically described, as they should be, but are set forth as two continuous parcels, — not showing in what portions the various persons described as the owners are interested. This objection may be considered with another that grew out of it, that the damages are not apportioned, but the value of the entire lands taken is given in one sum of two thousand dollars. Section 19 of the railroad law {Comp. L., § 1968), which directs what shall be set forth in the petition, contains no very positive requirement as to how the property shall be described, but there are some inferential reasons which would seem to make it necessary to go somewhat more into detail than is done here. The description in this petition contains little more than a general description of the central line of the road and of-the location of the way by reference to it, — giving no information as to how it may affect smaller parcels, —while it distinctly appears that streets are crossed, and a village is entered. The section not only requires a “ description of all the real estate, property or franchises, or so much thereof as the company seeks to acquire,” but the purposes for which it is needed, and the reasons why the company has been unable to acquire title. The parties interested arc to be described, and it is made lawful, though not necessary, perhaps, to state what encumbrances exist on the property or any of it. The fact of inability to obtain title amicably is made a jurisdictional fact by section 18 (Comp. L., § 1962), and might be controverted. — Dyckman v. Mayor, etc., 5 N. Y., 434, and cases cited in Abbott’s Dig., Corp., 186-7; Leslie v. St. Louis, 47 Mo. (Law Reg., Sept. 1871, p. 602). It is mani — 427 — lest that these reasons might not be the same in regard to various persons or parcels. But a principal difficulty arises out of the necessity of dealing with each owner’s rights separately. Any person who is interested may demand a jury, and when one is demanded the inquiry does not extend to the case of those who have not demanded it. The language of the statute is that the jury shall “ascertain and determine the necessity for taking lands, franchises or other property, and to appraise and determine the damages or compensation to be allowed therefor to the owners or persons interested in each particular description of real estate mentioned in said petition, who ha,ve demanded such jury,” etc. As to all others, the jury is “ deemed to have been waived.” — Sec. 20. Section (Comp. L., § 1968) contains a provision for determining disputes where there are adverse claimants for money awarded as compensation. No one can fail to observe that a verdict giving a round sum as damages for a continuous strip of land crossing several parcels, does not accomplish any thing whatever concerning the rights of the several owners. The land may be different in quality and value, — parts may be improved and parts unimproved, — small lots may be ruined, and larger ones may be damaged but a trifle. Unless each separate holding is viewed by itself, the owner’s rights cannot be protected at all. It is not supposable that any legislation can have been intended to disregard private rights so recklessly. No man can be compelled to have his property exposed to such dealing. When the property taken is not for the state, every one is entitled to have some impartial tribunal pass, both upon the necessity of the taking, and the proper compensation to be made for it. He is interested in none but his own, and has a right to have his own rights passed upon and protected. He cannot be compelled to yield up a right of way until — 428 — it has been declared by competent and impartial authority necessary, nor if necessary, until his compensation has been fixed. This can only bo done separately, or, at all events, by separate parcels. — Rex v. Croke, Cowp., ; Rex v. Manning, 1 Burr., 377. It would be quite as sensible to allow one jury to try half a dozen actions of assumpsit and give one lumping verdict for them all, as to combine in one sum the damages of distinct land-owners. As the statute contemplates that when one person claims a jury no inquiry shall be made beyond his case, the inference is inevitable that the petition should show in what lands he is supposed to be interested. But the same necessity would arise in case of any number of claimants demanding that- right. The jury or appraisers, as the case may be, are expected to deal with the rights of all severally and not jointly, when they have no joint interest. It is evidently expected, under the statute, that when any person demands a jury, they will be able from the petition itself to understand what property is to be the subject of their investigation, and what necessity is claimed to exist for taking it. The necessity is not the same in all cases. If the road itself is found necessary, it may not be found necessary to lay it over the premises in dispute; and the necessity of the road may not involve the necessity of taking all that is sought for buildings and depot grounds. It is quite plain that a verdict which might be one way, if the property must all be considered and appraised together, might be varied in regard to particular parcels, both as to damages and necessity of use. Under most of our old statutes before the present constitution, each lot had to be made the subject of a separate application and proceeding. The present statutes have made one proceeding sufficient in each county, but they have not undertaken, and could not — 429 — lawfully undertake, to confound several interests, so as to compel one man’s rights to be so mixed up with another’s that the jury could not award each his proper dues. The petition before ns has undertaken to follow the language of the statute so literally as to prevent the several interests from appearing with any degree of certainty-And the result is that the verdict, following the same ambiguous course, has made no finding at all on the rights of the party appealing. The whole proceedings, so far as they concern the appellant, must bo quashed, and if the company desire to obtain a condemnation of his land they must commence new ones. He is entitled to costs of all the proceedings. The other Justices concurred.