176 A. 878 | Md. | 1935
This case was here before, when the defendant (appellant) contested the right of the petitioners, the Board of Education of Anne Arundel county, to condemn the easement or right of way described in the petition. Davis v. Board of Education,
The petition was in the usual form for the exercise of the right of eminent domain under article 33A of the Code (section 1et seq.). After the decision in
After the jury is sworn, the next step is a view of the property, and it is then provided by section 9 of article 33A: "After said view, and the jury has returned to said Court, the trial of the issues of law and fact in the case, relative to the right to condemn said land, and the damages which will be occasioned to the defendant owner or owners thereof by the taking, use and occupation thereof by the petitioner, and the amount of just compensation therefor to each defendant, and of all other issues which may properly arise in said case, shall be proceeded with before said Court and jury in the same manner and under the same rules of law and practice, pertaining to the admissibility of evidence, the instructions of the Court, and all other matters arising under said proceedings, as in other civil cases, except as herein otherwise provided." *77
Under this section the burden is on the petitioner to establish its right to condemn (Kenly v. Washington County R. Co.,
The last paragraph of section 11 says that, "upon any such verdict becoming final, if the same shall be for the defendant, upon the right to condemn, the Court shall forthwith enter a judgment in said case for the defendant with costs, but if said verdict shall be for the petitioner on the right to condemn and assessing damages to the defendants, the said Court upon said verdict shall forthwith enter a judgment in favor of each defendant against the petitioner for the amount of damages or compensation awarded to each of said defendants by the verdict of said jury and his proper proportion of the costs." Williams v.N Y, P. N.R. Co.,
The defendant's chief reliance for its contention that the verdict of the jury may not be altered, as she contends was done here, is the case of Gaither v. Wilmer,
What does the verdict here mean and what does it imply? If there had been an unqualified verdict for the defendant, under the terms of section 11 of article 33A, it would have been a denial of the petitioner's right to condemn, but a verdict for the defendant with an assessment of damages means that the petitioner had the right to condemn, and, by reference "to the pleadings and issues," as Judge Miller said, the court could mold the verdict into proper shape. As said by Lord Mansfield inHawks v. Crofton, 2 Burrows, 699, "where the intention *79
of the jury is manifest and beyond doubt, the court will set right matters of form," and by Justice Denison, in the same case, "Though the verdict may not conclude formally or punctually to the words of the issue, yet if the point in issue can be concluded out of the finding, the court should work the verdict into form and make it serve" — both quotations taken from Brownev. Browne,
The proper way to have attacked the verdict if not in form would have been by motion in arrest of judgment, which would have been reviewable, or by motion for new trial. Harford County v.Wise,
Judgment affirmed, with costs in this court.