6 W. Va. 147 | W. Va. | 1873
The proceedings in this case were had upon the application and petition of the Railroad Company, to the Circuit Court of Kanawha county, for the appointment of commissioners under the provisions of the 42d Chapter of the Code of West Virginia, to ascertain what would be a just compensation to the persons entitled thereto for the real estate proposed to be taken by the Company, for the purposes stated in its application. Commissioners were appointed in August, 1870, and made and returned their report to court, under date of the 13th of Sept., 1870. This report was objected to by the Defendant, Robert Patton, the owner of the land, who excepted to the confirmation and recordation of the same for errors apparent in the record of said proceedings and report. At a Court held in November, 1870, all of said Defendant’s exceptions were overruled, and the court confirmed said report, and ordered the same to be recorded. And from
Let us now examine the report. The commissioners return that they are of opinion that the sum of f675, and the construction and keeping in good repair by said Railroad Company of a substantial post and plank fence on each side of the line of said road through the land of said Patton, and the construction and keeping in good repair by said Railroad Company of all necessary crossings and ways from Tackett’s Creek Valley to the high land, and cattle guards upon the said land of said Pat
But in looking further at this report, it appears, that'
If no damage was awarded the land owner for throwing open the residue of his tract, as may be inferred perhaps, from the testimony of one of the commissioners, then it will appear, that by this report and its confirmation, the Company is authorized to enter upon the real estate of another party against his consent, to which it has not the shadow of title, and to build a fence upon it for its own purposes and accommodation, and this too at the land-owner’s expense. It need hardly be said that the exercise of such authority is unjust and unconstitutional. For the support of the foregoing views, no citation of cases is required.
What would be the effect of inserting certain provisions not contemplated by the statute, in a report, to which both parties had agreed, does not arise upon this record, and need not be considered*; nor is it necessary to consider any other ground of error which has been assigned in this cause.
The judgment of the Circuit Court in confirming said report, and directing it to be recorded is reversed, with costs according to law to the defendant, Robert Patton • and this Court proceeding to render such judgment as the Circuit Court should have rendered, doth set aside the report of said commissioners, and remand this cause to the Circuit Court of Kanawha county, to be proceeded in according to law.