West v. West & East R. R.

Cooper, J., delivered the opinion of the court. This is an action of trespass quáre clausum fregit brought by the appellant against the appellee to recover damages caused by the construction of the road of the appellee over certain lands of the appellant. The defendant justified its entry by setting up a condemnation of the land under the provisions of its charter. The plaintiff replied in substance: First, that some of the trespasses complained of were committed prior to any proceedings to condemn; second, that the defendant trespassed by digging upon other parts of the land than that condemned; third, that the verdict and condemnation under which the defendant claimed to enter was void for the reason that there had previously been an award of damages by the verdict of a jury summoned on the petition of the defendant, which verdict, after it had been rendered and subscribed by the jury and intrusted to one of the jurors to be by him deposited in the proper office, was by the fraudulent condhct of the defendant prevented from reaching its destination, and in substitution of which the defendant procured those [541] persons who had served as jurors to make and deposit in the office of the circuit clexdt of the county (where by the charter of the company verdicts of juries in condemnation proceedings were x-equired to be deposited), a certificate that they had failed to agree upon a verdict, and thereupon had procured the issuance of an alias wxfit of ad quod damnum, upon which the verdict had been rendered under which the defendant had entei’ed; fourth, that the proceedings to coixdemn were void because the petition for condemnation failed to describe the land which the company proposed to acquii’e; and fifth, that the company had not paid the amount assessed as damages by the jxxry before its entry. Demurrers were sustained to the thixkl and fourth replications as above noted axxd issues joined on the others on which there has been a verdict and judgment for the defendant. We are satisfied that the finding of the jury was in conformity with the testimony. The demurrer to the fourth replication was properly sustained. The petition states that the line of the railroad had been located over the land of the plaintiff, which was correctly described, and the proof shows that at the time the petition was filed both the preliminary and final surveys had beexx made. The vei’dict of the jury shows that the jux'ors had “carefully examined the land along the line of said railroad” and had estimated the damage “done to the laird by the construction of a railroad to the extent of fifty feet on each side of the fifty feet of said line.” It is shown by the evidence that the road had not been constructed at the time of the award by the jury, but we think it is sufficiently shown that the “location” had been made by visible marks indicating the line. We know as a matter of general history of these enterprises that the final surveys are ixxdicated by such markings, by pegs ixx the open fields, and by “ blazing ” the trees along the line where it passes through timbered lands. No objection was taken by the plaintiff at the time of the proceedings to condemn. It appears that the jury viewed the land “ along the line ” of the road and we think that it must be assumed that the location referred to in the petition Avas an actual visible location of the line. Under such circumstances a reference to the land as that oxx which the [542] road had been located was sufficiently accurate to notify the owner what property was sought to be condemned. The ground of the demurrer to the third replication was that by it the plaintiff sought to attack the verdict of the jury collaterally. To us it seems that the effect of the replication was not to attack the verdict, but to establish the true verdict and to show that the verdict relied on was no verdict whatever, that the issuance of the second writ was unauthorized and the proceedings thereunder a nullity. The charter of the defendant provides that “upon the application of either party'the clerk of the circuit court-in the county in which the land lies shall issue a writ of ad quod damnum, directed to the sheriff of said county, who shall immediately upon the reception of said writ cause a jury of seven good and lawful men to be on said land on a day appointed, of which five days’ notice shall be given to the party or parties, which jury, after being duly swhrn by said sheriff to make true and lawful inquest of the damages suffered by such owner or estate by reason of the construction of said road through said land, shall proceed to view such land and ascertain and assess such damages. The verdict of inquest of such jury shall be returned to the office of said clerk, and if the said company shall within six months after such return pay the amount thereof into the hands of such clerk,- for the person or persons entitled thereto, the title to such lands shall at once vest in the said company.” . By her replication the plaintiff proposed to show that the jury which was impaneled by the sheriff did meet and take the oath and assess the damages and agree upon a verdict and reduce it to writing, and sign and subscribe it, and commit it to the hands of one of their number, to be by him delivered to the proper office, and that thereupon the jury dispersed and never again met. But for the fraud of the company this verdict we must suppose would have been delivered by the party to whom it was intrusted, and if this had been done it is apparent that no subsequent jury could have been impaneled to make another awaixl. The jury, having agreed upon the verdict as stated in- the replication and placed it in the hands of a messenger to be delivered to the clerk [543] of the court and having dispersed to their homes, had no further power or control over the verdict. It was the duty of the person to whom it was delivered to convey it to the office designated for its deposit, and if the railroad company prevailed upon him to suppress it, it could not take advantage of its own wrong by insisting that an actual return was essential to give it validity as a final and complete adjudication. The act of the persons who had composed the jury in subsequently signing and returning a certificate that the jury could not agree was a nullity, for it was but the individual act of each of the persons and not the act of the jury. The object of the plaintiff was then not to attack the verdict of the jury collaterally, but to show that what purported to be the verdict was not in truth a verdict at all, but the certificate of private individuals, which itself contradicted the true record. How does the act of the company stated in the replication differ in its practical effect from the forcible caption of the verdict from the custodian to whom it was committed ? The juror who took the award held it as the mere messenger of the body by whom it had been found; the jury having dispersed became functus officio, and could no longer do any judicial act; whatever those persons who had composed the jury afterward did was done not officially nor with power to bind or to release any one, and though they professed to act as a jury their assumption of authority was of no effect. If, therefore, the facts stated in the replication are susceptible of proof, it will follow that unless the damages awarded by the jury whose verdict was suppressed were deposited by the company for the plaintiff in the hands of the proper officer prior to the entry of the company on her lands, such entry was a trespass, and the plaintiff is entitled to recover. The judgment is reversed, the demurrer to the replication overruled.