Louisiana & Frankford Plank Road Co. v. Pickett

Napton, Judge, delivered the opinion of the court. The application of the Plank Road Company to the justice, in this case, stated that the road, as surveyed and located by their engineer and adopted by their board of directors, ran over the defendant’s land, and the quarter section occupied and owned by the defendant is particularly described; but the exact route of the road is not specified any further than by reference to the survey of the engineer, which was not made a part of the petition nor filed with the papers. In the circuit court, to which the case ultimately went by appeal, a jury of five men was ordered, and it was agreed that their sealed verdict should be filed in vacation and a judgment entered thereon by the court. At the first term of the court after the verdict was rendered, a motion was made to set aside the proceedings and dismiss the case, 1st, because the 8th section of the act of February 27, 1851, entitled “An act to authorize the formation of corporations to construct plank roads and macadamized roads,” was unconstitutional; 2d, because a jury of five men instead of twelve were ap [537] pointed ; 3d, because the jury were directed to allow advantages to set off tlie value of tlie land; 4th, because the application to the justice was not specific enough in relation to the exact position and quantity of the land desired to be condemned. Upon this motion all the proceedings before the justice, and the appointment of a jury or commissioners by the circuit court, and the instructions of the court to the commissioners, were submitted to the court, and the motion overruled and, bill of exceptions taken. The instructions thus referred to in the bill of exceptions are as follows: “ The jury shall go upon the land over which the road is proposed to run, and shall assess the damages sustained by said Pickett, taking into consideration the advantages, if any, which said road may be to said Pickett, and the jury shall make out in writing their verdict and all shall sign it, and it shall be sealed and delivered to the clerk by one of the jurors.” The point in relation to the constitutionality of the layr in question has been already considered and decided by this court in the case of Newby v. Platte County, ante, p. 258. The instruction given by the court was erroneous in not restricting the jury to such direct and peculiar benefits or increase of value as were occasioned to that part of Pickett’s land not taken for the road, and directing them to discard from their consideration any general benefit or increase of value received by such land in common with other lands in the' neighborhood. This has been determined to be the proper construction of this and similar statutes. (See Newby v. Platte County, ante, p. 258; Pacific Railroad v. Chrystal, post, p.-.) The appointment of five instead of twelve men to assess the damages is not, in our opinion, inconsistent with the constitution. That provision in the state constitution which declares that the right of trial by jury shall remain inviolate is not applicable to cases of this character. The persons appointed to assess the damages in cases of this kind do not perform the proper and usual functions of a jury in civil or [538] criminal trials. They might with more propriety be termed commissioners, and their number is a matter of discretion with the legislature. (Livingston v. The Mayor of New York, 8 Wend. 100.) The application to the justice should have stated with more, certainty the particular land desired; but as the line of the road was surveyed, and a reference made to the survey in the application, we should not for this cause alone think it necessary to reverse the judgment. The motion to dismiss was properly overruled; but the court should have appointed another commissioner with proper instructions. The other judges concurring, the judgment is reversed, and the cause remanded.