28 Del. 1 | Del. | 1914
Chancellor, delivering the opinion of the court:
■ Confirmation of the return presupposes a right of a party to except to it, and a determination by the court of the questions raised by the exceptions. The exceptions may relate to matters without as well as within the record, showing irregularity or injurious error in executing the writ.
It follows, then, that if there be any error in this proceeding, in its final stage, it is reviewable by the Supreme Court. It is also obvious that this right to a review exists, though the act made the report or inquisition final, for the constitutional right to review the error in any judgment or proceeding in the Supreme Court after the cause has reached its final stage, cannot be taken away by the statute.
“It is true that a writ of error lies only where the proceedings are according to the course of the common law, and for this reason, that where the proceedings are summary and the matter of the jurisdiction compounded of law and fact is referred to the discretion of the particular tribunal, the court of error is not authorized to render the proper judgment.”
It is not easy to understand why the court should have considered that that proceeding was summary, or involved the exercise of discretion by the court, in any greater degree than the decision of a common-law cause of action, unless it be explained by the absence of a jury trial. But there the court distinctly held that writs of error are limited to proceedings according to the common law. A proceeding to condemn land, even by a writ of
There were two writs of error, one in the proceeding taken by the commission and the other that of the landowner, and the two cases were heard together. In the former case (No. 4) there are three assignments of error, and in the latter (No. 5) there are four. The three assignments under No. 4 are the same as the second, third and fourth assignments under No. 5, and will be considered together.
It was urged, with some reason, that the. provision requiring the jury in assessing the damages to the landowner to take into consideration all circumstances of detriment, if any there be, is a valuable one to an owner of land needed for some public purpose. Such a provision may be an enlargement of the right to compensation beyond the actual or intrinsic value of the land taken in cases where, as here, the whole and not-a part only of the lot of land is taken. On the other hand, the provision may be applicable only to cases where a part of a tract is taken. On these points we do not deem it necessary to express an opinion. The adoption of either of these views would account for the existence of the provision in the act. It does not follow, however, that both of the writs should have been quashed because the provision above referred to was absent from each of them. One of these writs was applied for by the landowner, and the other by the commission. The landowner obtained the kind of a writ he asked for. It corresponded with his application, which was for a writ for a jury to assess his damages, and it did not contain a request that in assessing his damages the jury take into consideration all the circumstances of benefit and detriment to-result to him by reason of the taking of his land. He may have failed to ask that his writ contain this requirement because there were no such circumstances of detriment, inasmuch as all of his land was taken and not a part only. Whatever be the reason for its omission, it is sufficient that it was omitted by the landowner from his own application. If the landowner obtained the kind of a writ he asked for, he cannot complain that it does not contain something he did not ask for. We find, therefore, that there was no error of the court in refusing to quash the writ of ad quad dam
The third assignment of error is based on the refusal to vacate and set aside the returns to each of the writs, and all the reasons, it is said by counsel, relate to both writs. There were twenty-two exceptions taken to each of the returns, but some of them were abandoned, and the others were consolidated into six, as appears from the brief of the counsel for the landowner at the hearing in this court. These six reasons will be considered in the form in which they were stated by the counsel for the plaintiff in error and discussed by all of the counsel.
In proceedings to condemn land for public purposes by the use of the writ ad quad damnum, there is no right to challenge the jurors peremptorily; that is, without cause shown. No authority is shown which so holds. The history of the writ and the practice under it exclude such a right. It was, and is, a writ directed to the sheriff to inquire, by twelve impartial men as to the matter stated in the writ. This imposes on the sheriff a duty to select impartial men. Presumably, then, the sheriff obeys the command of the writ. In this respect the impaneling of a jury in a court of law, by selection by lot from a large panel sum-' maned without regard to the parties to the cause to be tried, is very different. The right to a peremptory challenge in condemnationproceedingsis not conferred by Section 19 of Chapter 109 of the Revised Code, which does not apply. The case of Appeal of Converse, 18 Mich. 459, 467, cited by the plaintiff in error, is quite in point.
But in this case the landowner, without at any time alleging the existence of any ground of challenge, or his desire to challenge, appeared before the jury and was heard as to the amount to be awarded him as his damages. He cannot, after the award is made, raise the objection that he had no opportunity to challenge. The court below was right in refusing to vacate the return and in holding insufficient the reasons upon which such motion was based.
In deciding the technical questions raised by the plaintiff in error in both cases, we have considered them as technical questions, inasmuch as there is not here, either in the record, or briefs, or oral argument, any allegations of injustice, injury, oppression, surprise, accident, or mistake; nor are any facts shown from which such may be even inferred. For aught that appears, the landowner, by a regular proceeding, after due notice and full
The judgment of the court below in each case is affirmed.