Appeal of Convers in re the Grand Rapids & Indiana R. R.

18 Mich. 459 | Mich. | 1869

Campbell J.

The appellant is owner of certain lands in and near Grand Eapids, and appeals from proceedings to condemn certain portions of them for the use of the Grand Eapids and Indiana Eailroad. Several objections are made to the regularity of the proceedings, whicli will be noticed, so far as may be necessary.

The first and preliminary objection rests on the alleged failure of the petitioners to file in the county registry, the map and survey required by law to be left there before any proceedings can bo had to take lands.

Section 19 of tbe general railroad law, as amended in 1859, (L. 1859, p. 559, 560,) requires the petition for an appraisal to declare among other things, “that the company have surveyed the route of its proposed road in said county, and made a map and survey thereof, by which said route is designated, and that they have located their said road according to such survey, and filed a certificate thereof, signed by a majority of the directors of said company in the register’s office of said county.”

The case shows that a map was filed in the register’s office, which is claimed to show the location of the road, but no other paper, survey or certificate was left in that office. It is claimed, however, that the map is sufficient, and that the term “ survey ” does not apply to anything but the work on the ground, of which the map is assumed to be the only record contemplated by the statute.'

We understand by the term “map and survey,” not only a delineation upon paper or other material, giving a general, or approximate idea of the situation of the road, but also such full and accurate notes and data as are necessary to furnish complete means for identifying and ascertaining the precise position of every part of the line with courses and distances throughout, so that there can be no doubt as to- where any portion of it is to be found. A map can. be made to contain all of these data, so as to need no reference to field notes, but the informa tion must exist somewhere. The map before us is singularly deficient. It purports to be drawn by a scale; but the lines of the road are not so laid down as to enable any one by the use of instruments to ascertain its location with any degree of accuracy. There is nothing to show its distance from corners, or other boundaries at any part of the line. There are no courses or distances given either on straight lines or on curves — and the lines are very irregular, and by no means parallel throughout — and a map drawn on suoh a scale could not be made accurately enough, by most draughtmen, to dispense with the aid of figures to denote place and distance.

We think that something more was needed under the statute.

It is also claimed, that the jurors were not drawn in the presence of the court as they should, as is alleged, have been drawn under the statute.

It appears that on January 23, 1868, the Circuit Court of Kent county ordered: “That there be drawn from the petit jury box of this county, a jury of twelve freeholders, &c. and that the clerk of this court issue a venire in the usual form, inserting' therein the names so drawn, and requiring such jury to meet at the hour of 2 o’clock in the afternoon of the seventh day of February next,” &c. On the 30th of January, the clerk in his office, and in presence of the sheriff, and of a justice of the peace, drew twelve names, and issued the venire.

Under the original provisions of section 20, of the statute, the clerk was directed to draw the names, but as it was to be done, “thereupon,” that is to say, upon the making of the order, it may be doubted 'whether it was not to be done at once, in presence of the court or judge. But by the law of 1864, p. 14, the language is changed, and it is provided that “thereupon, said court or judge shall make an order for the drawing of such jury from the petit jury bQX of" the county, and the said court or judge shall cause to be drawn twelve names from such box accordingly, .and shall issue a venire in the usual form,” &c. The statute contemplates that these things shall be done in the presence of the court, and at the time of making the order, so that everything may be consecutive, and may be done under judicial supervision. The counsel •for the railroad had overlooked the amendment of 1864, which made clear what may perhaps have been more doubtful before. The jury was not legally drawn.

The objection that the jurors were not of the vicinage but from distant towns is not tenable. When jurors are drawn from the jury box, the vicinage means the county No less range would make the drawing conform toother proceedings.

A peremptory challenge was allowed against a juror summoned as one of the talesmen, and he was set aside. This was erroneous. The only provision under our law' allowing peremptory challenges in matters not criminal is found m the chapter of the compiled laws relating to the “Trial of Issues of Fact,” and allows a challenge of two jurors in “civil cases” as well as in prosecutions. This does not apply to special proceedings not in the ordinary course of law, and which are regulated entirely by particular statute. Challenges for cause are necessary in all inquiries by jury, but peremptory challenges in other than criminal proceedings are confined to cases where the statutes have directly provided for them. In the recent case of Livermore vs. Hamilton, in the New York Court of Appeals (reported in New York Times of May 10) it was held, affirming the decision of the Supreme Court, that it was error to allow a peremptory challenge in proceedings under the Landlord and Tenant law, as such proceedings were not properly civil actions. These appraisals bear no resemblance to ordinary legal trials.

These points are all that we deem it necessary to decide in view of the position of the proceedings.

As the objections to the proceedings go to the original jurisdiction, and show that there was no right to make the application at all, our order must be simply to set aside the entire proceedings, so far as they affect the appellant, with costs. The statute provides for new proceedings where the title attempted to be acquired by the first appraisal is found defective. — (§ 1,970 C. L.)

The other Justices concurred.