25 Ala. 455 | Ala. | 1854
This was a proceeding under the act of 25th December, 1841, (Pamph. Acts, pp. 5-6,) by Stein against Burden, to ascertain what amount of damage the latter had sustained by the withdrawal of water from Three-Mile creek in consequence of the erection of certain water-works for supplying the city of Mobile with water.
It is insisted by Burden’s counsel, that Stein could not have the writ of ad quod damnum after he had erected his works, but that the act requires that he should have proceeded before, and then not against any single individual, but against all proprietors on Three-Mile creek to be affected thereby. The statute is expressed in somewhat awkward terms ; but we are satisfied the construction contended for is not the correct one, and would fail entirely to meet the object and design of the Legislature in enacting it, The right to sue out the writ is given by the first section of the act to Stein, his executors, administrators, or assigns, “ as often as may be necessary during the continuance of the privileges granted in the act, to which this act is amendatory,” &c., and clearly contemplates the right to the writ after the establishment of the works as well as before; otherwise, the terms “ during the continuance of the privileges
But it is said the writ is not in conformity to the statute, because it specifies no time when the jury are to view the creek, &c., so as to ascertain the damage. The statute requires that the writ should command the sheriff to summon a jury of seven discreet freeholders of said county, to view the said premises, 11 at a time not exceeding ten days from the issuing of the writ aforesaid.” The writ in the case before us requires him to summon the jury and Burden to meet on the same clay, at, &e., that the sheriff charge and swear the jury, &c., and then proceeds: “ and the judgment so made and sealed by the jurors aforesaid, together with this writ, you are commanded to return to the Court of Probate for said county within ten days from the date of this writ.” ~We do not think it was incumbent on the court to fix any particular day in the writ, but are of opinion it is sufficient that the sheriff was required to have the same executed and returned within ten days from the date of its issue. This was done, and is a good compliance with the act.
Again ; it is objected that the writ requires the jury to say “ what amount of damage said Burden sustains, or may sustain, by the withdrawal of the water, or otherwise, in consequence of the erection of said works, and for and during their continuance.” The act declares, that “ the jury shall ascertain what amount of damage the said proprietors may sustain by the withdrawal of water, or otherwise, in consequence of the erection of said works.” The objection appears to be based upon the idea that there must be a literal conformity of the writ to the act; but we think a substantial compliance is all that is required. It must be so framed as to carry into effect the object of the enactment, and the scope of the jury’s inquiry must be sufficiently extensive to embrace all the rights intended by the act to be protected. It was not designed by the enactment merely to give damage for the present, injury the
The objection that. Burden was not duly summoned to meet the jury, cannot be allowed to prevail, because it appears that he was present, and it does not appear that the notice given him was too short. liis objection, taken before the trial, was not that he had not sufficient time between the notice and the view of the jury to prepare to go into the investigation, but that he had not been “duly notified of the time when the jury were to assemble.” If he had desired further time, or the notice given him was too short, to enable him to prepare for the protection of his interest, he should have made that the specific ground'of his objection. The statute does not fix the length of time which must intervene between the notice and the view ; this must, therefore, be construed to be a reasonable time; and what is reasonable depends upon the situation of the parties and the nature of the thing to be performed. It is not made affirmatively to appear that the time allowed in this case was unreasonable, and the maxim applies, “ what does not appear does not exist.”
Objection is taken to the time when, and the form in which, the judgment was rendered.
As to the time: It appears by the record, that the trial of the exceptions filed by Burden was had at a time when he had
We are unable to perceive any irregularity in the time, at which the judgment was pronounced. According to the judge’s entry, the event had occurred upon which the decision was to be pronounced, the receipt ‘of the opinion of this court, and we must intend that his decision was pronounced in open court, in the presence of his attorneys and counsellors, by the judge.
That the judgment declares that Stein is entitled to the water for and during the continuance of his works, is not erroneous; for this is the effect of the finding according to the statute, which declares, “ the. decree shall vest absolute right in Stein to the land, water, privilege, or right, that shall have been condemned by the jury,” &c.
That the Probate Court taxed the whole cost of the proceedings against Burden was clearly not in conformity to the act, which requires that the cost of the attendance of witnesses, as well as the cost of the appeal, shall be borne by the party against whom the judge shall decide. This, however, furnishes no ground for reversal of the judgment, but is matter for amendment and correction, and is ordered to be so amended in this court at the cost of the appellant.
We see no error in the record which can avail the appellant as ground of reversal, and the decree of the Probate Court is therefore affirmed.