62 Iowa 446 | Iowa | 1883
Ibis is a certiorari proceeding for tbe purpose of testing tbe legality of a sheriff’s jury, awarding to tbe defendants damages for tbe right of way over certain real estate owned by the principal defendants.
Tbe jury was impaneled by tbe sheriff at tbe instance of the Bentleys. In tbe petition for tbe writ, several objections to tbe validity of tbe proceedings are alleged. Among others, it is stated that tbe defendants, tbe Bentleys, bad conveyed the right of way in question to tbe plaintiff for a valuable consideration, prior to tbe commencement of tbe proceedings to condemn, instituted at tbe instance of tbe said defendants. This is not denied in tbe answer, but it is sought therein to avoid tbe effect of tbe allegation by tbe statement that, prior to tbe commencement of this proceeding, an action in equity was commenced by tbe principal defendants for tbe purpose of testing tbe validity of tbe said conveyance.
Proceedings to condemn tbe right of way for a railway corporation may be instituted by either the owner or tbe corporation, but this can only be done in case tbe owner refuses to grant tbe right of way, or the parties are unable to agree upon tbe compensation to be paid therefor. Code, §; 1244.
In tbe present case, tbe compensation has been, not only agreed upon, but paid tbe owner by the plaintiff; and tbe former bad conveyed tbe right of way to tbe corporation. This being so, tbe proceeding condemning tbe right of way by tbe sheriff’s jury is void for want of jurisdiction over tbe
Affirmed.
