Elbert v. Scott, 90 A. 587

Curtis,

Chancellor, delivering the opinion of the court:

[1-3] A preliminary question arises on the motion of the *8dеfendants in error made in this court in each case to dismiss the writs of error, because the proceeding taken in each case is not .according to the course of the common law and that certiorari is the proper remedy. The right to a review in an appellate tribunal exists only when and to the extent provided in the Constitution and laws of this state. By Article 4, § 12, of the Constitution, the Supreme Court has jurisdiction “to issue writs of error to the Superior Court and to finally determine all matters in error in the judgments and рroceedings of said Superior Court.” There is no question but that the proceeding is reviewable in this court. Though the act provides that the report of the jury shall be final, and provides no appeal, or other method of review of the action of the Superior Court in confirming the report, still there is in the Superior Court a judicial decision, or, at least, a final order in a proceeding, jurisdiction of which is rightly conferred on that court. The order of confirmation is a final order. 2 Lewis on Eminent Domain, § 803. The writ of ad quad damnum is а common-law writ, and is in the nature of an original writ. 2 Woolley on Delaware Practice, § 1449. It is issued by the prothonotary on application made in proper form, and under the statute controlling this case is returnable to and made subject to confirmation by the Superior Court. The necessity of confirmation by the court is not an unusual feature of acts of the Legislature conferring power to condemn land for public purposes. The confirmation is a judicial decision and implies judicial action. The Court of Errors and Appeals, in the case of Whiteman v. Wilmington and Susquehanna R. R. Co., 2 Harr. 514, 524, 33 Am. Dec. 411, referred to a proceeding to assess damages for land taken for the railroad by means of a writ of ad quad damnum as providing to the landowner “both a jury trial and judicial action”, though in that case the act did not require a confirmation by the Superior Court of the report or inquisition of the sheriff’s jury. See 9 Del. Laws, p. 10, c. 9. On the other hand, Chancellor Saulsbury, in Wilson v. Baltimore & Phila. R. R. Co., 5 Del. Ch. 524, 535, 542, said that the proceeding before him to condemn land for the railroad was not a judicial proceeding. But the act which he was considering did not require thаt the commission appointed by the judge of a *9court should make any return either to him, or to a court, but to the parties, and, of course, there was no confirmation by the court and no judicial determination of any matter.

■ 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.

[4] So much is clearly true. But is the writ of error the proper proceeding with which to obtain a review? The three cases in the highest ‍‌‌‌​‌​​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​‌‌​‌​‌​​‌‌​‌​​‌‌​‌‌​​‌‍court in this state, bearing on the question, vary in their conclusions respecting the same constitutional provision. In Jeans v. Jeans, 3 Harr. 136, the court held that a writ of error would not lie to a decree of the Superior Court granting a divorce, under a statute which provided a procedure to get in the parties, give them a hearing and adjudicate their rights. The court said:

“It is true that a writ of error lies only where the proceedings are according to the course of the сommon 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 *10ad quad damnum, is not a proceeding according to the common law. It is summary. The procedure is statutory and special, and varies in different statutes. The authorities seem to hold quite generally that a writ of error will not lie (2 Lewis on Eminent Domain, §§ 542, 554; Sweeney v. Chicago Telephone Co., 212 Ill. 475, 476, 72 N. E. 677 [1904]); and that certiorari is the proper mеthod to obtain a review of such proceedings. In Murphy v. City of Wilmington, 6 Houst. 108, 138, 22 Am. St. Rep. 345, the Court of Errors and Appeals referred to a writ of certiorari as the proper proceeding to review the regularity of proceedings taken by a municipal corporation in assessing the cost of building a sewer. The cases of Union Church v. Sanders, 1 Houst. 100, 63 Am. Dec. 187 (1855), and Brumley v. Jessup & Moore Paper Co., 3 Boyce, 544, 82 Atl. 540, were both mandamus cases,in which the court held that writs of error would lie, in the first case, to an order of the Superior Court making absolute a rule for a peremptory writ of mandamus аnd ordering that the writ issue, and in the second (on authority of the other one) to an order of the Superior Court holding sufficient a return to an alternative writ of mandamus. In the latter case the ground urged for dismissal was that the order was not a final one. There is nothing in either case of much weight on the matter now under consideration, except a statement in the case of Union Church v. Sanders, where in a very brief opinion the court said that the constitutional provision above referred to extended tо the jurisdiction of the Court of Errors and Appeals by writs of error to judgments or decisions of a final character in any proceeding in the Superior Court. But we do mot regard this as conclusive in this case; nor do we believe that the court would.have held that a writ of error would lie to a decision of the Superior Court denying motions to quash a writ of ad quad damnum, or to vacate the return thereto. The manner of obtaining the review is determined not by the finality of an order, but by the character of the proceeding to be reviewed. If it be a summary, special statutory proceeding, such as is that under consideration here, then the remedy is certiorari and not a writ of error.

[5, 6] Certiorari was originally a writ of grace and not of *11right, and one which was not granted if substantial justice has been done by the court below, even though the record should show technical errors or inaccuracies, and be for these reasons defective and informal. See Newell v. Hampton, 1 Marvel 1, 40 Atl. 469 (Court of Errors and Appeals). This feature of the writ does not now exist as a reason for preferring the writ of certiorari, because ‍‌‌‌​‌​​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​‌‌​‌​‌​​‌‌​‌​​‌‌​‌‌​​‌‍the writ has been made a writ of right and not of grace, though we are not convinced that the legislation was wise. See 21 Del. Laws, c. 118, p. 262, approved June 9, 1898. Still this feature of the writ as it existed prior to the above change may have been one of the causes of its adoption for the review of the judicial action of inferior tribunals. However, in accordance with the views of counsel for the parties, we will follow the course adоpted by the court in Jeans v. Jeans, supra, and say that although the use of the writ of error in each of the cases now before us was irregular, yet as the record and parties are before us we will consider the cases as though they had been brought to us by writs of certiorari, and decide whether the proceedings therein referred to were legal or illegal.

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.

[7] The first assignment of error applies only to the application made by the landowner, and not to that made by the Commission. After the writ of ad quad damnum had been returned, the landowner, Elbert, moved for leave to abandon, discontinue and stay his proceeding, and the refusal to allow him to do so was assigned as error in this cause. We find no error in this refusal to grant this motion, and approve of the reasons assigned therefor by the court below.

[8] The other three assignments of error relate to both cases; i. e., to the application of the landowner and to that of the commission. By the second assignment, the refusal of the court *12below to quash the writs of ad quad damnum issued in each case is assigned as error. The ground for the motion to quash in each case is that the writs do not require the jury, in assessing damages which the landowner would sustain by the tаking of his land, to take into consideration all the ‘circumstances of benefit and detriment to result to the owner, but simply required them to assess the damages which the landowner would sustain by reason of the taking of his land.

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 provisiоn 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 оf 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 considerаtion 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*13num issued on application of the plaintiff in error, Samuel G. Elbert.

[9] We also find that there was no error in refusing to grant the motion of the landowner to quash the writ issued on application of the commission, although the writ as issued did not follow the application made by the commission for the writ. Advantage of this’ cannot be taken by the landowner, because, as a separate proceeding from that instituted by the commission, he made his own application and had his own writ respecting the taking of the same land, and with the same men as jurors. His proceeding, as will appear in this opinion, this court holds valid. If the landowner by a valid proceeding, instituted by him, is awarded damages for the taking of his land for a public purpose, he has obtained all that he is entitled to have. A different question might have arisen if there had been but one application and one writ, and that the appliсation and writ of the commission. Although there are two writs of ad quad damnum it was quite correctly assumed by counsel that if either of the proceedings be held valid, the taking of the land would be ‍‌‌‌​‌​​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​‌‌​‌​‌​​‌‌​‌​​‌‌​‌‌​​‌‍valid, provided the provisions of the statute as to the payment, or deposit of the damages awarded are complied with.

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-twо 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.

[10, 11] (a) First reason under the third assignment of error: Because the landowner was deprived of his right to challenge the jurors selected by the sheriff under the two writs. It appears that pursuant to the two writs the sheriff selected and impaneled the same twelve men to constitute the jury in each case, and they were duly sworn. No notice was given to the landowner as to when or where the jury would be selected, impaneled, or *14sworn, and no statute or established practice required that any such notice be given. The first notice of the proceeding which the landowner received was notice from the sheriff that at a certain date and hour the jury would meet on the premises ‘tо -view the same and assess the damages for the taking thereof. Subsequently, after viewing the premises the jury sat at the county courthouse to hear the parties, and the landowner appeared by counsel, and a full hearing of all parties by witnesses and otherwise was had. No objection was made at, before or during the trial to the competency of any juror, or to the proceeding based on the denial of any right to an opportunity to challenge, and no objeсtion to the competency of any juror has ever been urged. The landowner has not been refused a right to challenge a juror, for he has not asked for a leave to so challenge. The landowner relies on the omission of the statute to furnish an opportunity to exercise the right which he- claims to challenge jurors before they were sworn. His argument is that he has a right to challenge peremptorily and for cause, or, at least, he has a right to a challenge for cause, and inasmuch as there is a settled rule of law in trials by jury at bar, requiring the exercise of the right before the jurors are sworn, the failure to give him an opportunity to challenge before they are sworn invalidates the whole proceeding.

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 а 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.

*15We agree with the court below in their denial of the right to a peremptory challenge in such proceeding. It is probably true that a challenge for cause would be allowed. Appeal of Converse, 18 Mich. 459; Canal Co. v. Archer, 9 Gill & J. (Md.) 497. There does not seem to be any sufficient reason why this challenge for cause of jurors summoned under an ad quad damnum writ should not be available to a party even after the jury were sworn, if the challenge be made at the first opportunity. So, too, as it is the duty of the sheriff, under such a writ, to selеct impartial men, it is his duty to decide questions seasonably raised by a challenge of a juror for cause, and if the cause be by him regarded sufficient, to substitute another juror for the one disqualified, and require the new jury to do their work from the beginning, including another viewing of the premises.

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.

[12-14] (b) Second reason under the third assignment of error: Because the return failed to show that the jury was properly sworn. By the return it appears that the jury were “severally sworn or affirmed according to law,” but the record does not disclose the form of the oath or affirmation taken by the jurors. It is objected by the landowner that it should appear that the jurors were sworn or affirmed to view the premises and assess the damages which will result to the owner ‍‌‌‌​‌​​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​‌‌​‌​‌​​‌‌​‌​​‌‌​‌‌​​‌‍by reason of the taking of his land for the purposes mentioned in the act, taking into consideration all the circumstances of benefit and detriment to result to such owner. There are several reasons why this contention is untenable. The record before the court is that brought hеre by the landowner as plaintiff in error in both cases, and as the form of the oaths taken do not appear in the record, it does not appear that the jury has not taken the oath in the form *16insisted upon by the landowner. Again, he is not entitled to have the jury sworn in the form he now says is required, because in his application for a writ he has not asked that the jury take into consideration detriment to him, and the writ does not require this of them. Again, the statute does not prescribe a form of оath, or even require that the jurors be sworn. It provides that the writ of ad quad damnum be issued requiring the sheriff “in the usual form to inquire of twelve impartial men of the damages as aforesaid.” In the usual form of the writ, and in the form used in this case, the sheriff was commanded to inquire of twelve impartial men “under their several oaths and affirmations of the damages ” to the landowner, etc. Again, by the weight of authority and reason, we agree with the court below that this ground for setting aside the return is insufficient, and that the return is sufficient if it appears therein that the jurors were sworn or affirmed according to law, in the absence of a requirement of statute, or the prescription by the statute of a particular form of oath.

[15] (c) Third reason for the third assignment of error: Because the return failed to show that the jury took into consideration all the circumstances of benefit and detriment to result to the owner from the taking of his land. The question thus raised is disposed of by applying the principles announced herein rеspecting the motion to quash the writ. As we hold the landowner’s writ valid because it corresponded with the application made by him for the writ, so we hold that the return to it was a valid one, though the return failed to show that the jury took into consideration all the circumstances of benefit and detriment to result to the owner from the taking of his land. The return to the landowner’s writ need not state that the jury in assessing damages took into consideration all circumstances of detriment, for they were not required to take such circumstances into consideration by the writ obtained by the landowner, which writ, as stated above, corresponded in this respect with the application made therefor by the landowner.

[16] For the reasons hereinabove expressed, in disposing of the motion of the landowner to quash both writs, we find no error *17based on the refusal of the court below to vacate the return made to either of the writs. In other words, though the return to the writ issued on the application of the commission did not show that the jury took into consideration all the circumstances of detriment, and in that respect did not conform to such application, though it conformed in this respect to the writ, still the landowner whose writ and return are in this respect valid, cannot take advantage of the fault in the other writ, or in the return to it. A different question would be raised if the commission only had applied for the writ and the landowner had not.

[17] (d) Fourth reason for the third assignment of error: Becausе the jury after the close of the case took to their jury room and considered notes of testimony made by a stenographer. At the hearing of the exceptions to the return the court properly heard testimony respecting the matters raised by the exceptions, and in this method learned that a stenographer had been engaged at the request of the jury to take notes of the testimony and took notes of all the testimony adduced before the jury sitting to assess the damаges of the landowner, Elbert. This was done probably because the jury found it impossible to remember, or conveniently make notes of all the data consisting largely of figures, calculations, estimates, etc. There is no point mad$ that the notes of the evidence were not ’ correctly taken. Afterwards they were before the jury, at their request, prior to their making their report and award. Whether the parties objected, or consented, to the stenographer’s notes going to the jury does not appear. Papers not admitted in evidence cannot go before a jury ordinarily, but no authority is shown why in cases of a sheriff’s jury under a writ of ad quad damnum in condemnation proceedings the jury should not have access to the transcribed stenographic notes of the testimony of witnesses heard by the jury, the notes being made for and given to the jury at their request, and without objection so far as appears. A report should not be set aside on such ground, under such circumstances.

[18] (е) Fifth reason under the third assignment of error: Because the jury separated after the close of the evidence and argument before they rendered their verdict. We find no error *18in the ruling of the court below in refusing to set aside the report for the reason above stated, and agree not only with the conclusion of the court below on this point, but also their reasons.

[19] (f) Sixth reason for the third assignment of error: Because the procedure adopted by the sheriff and jury of condеmnation did not constitute due process of law. This reason was not urged in the court below. It is urged here that the deprivation of an opportunity to challenge the jurors before they were sworn, and the dispersion of the jury after hearing the evidence and before making their award, show that there was not a regular and orderly course of procedure in determining the rights of the landowner as compensation for the land taken. There was clearly in this case an orderly and regular proceeding for ascertaining the extent in money of the injury to the landowner for the taking of his lands for a public purpose, wherein the owner was by the act, and the procedure prescribed thereby, secured in a right to reasonable notice and an opportunity to be heard before a jury of impartial men, whose finding was returnable to and subject to confirmation by a competent court of record. Clearly, then, the procedure by which the landowner’s damages were assessed was due process of law, under every known definition thereof.

[20] While we will affirm the judgments below, we take this opportunity of saying that, speaking generally, the proceedings for taking of private property for public uses should be pursued strictly in accordance with the ‍‌‌‌​‌​​‌​‌‌‌​​‌​​‌‌‌‌​​‌‌​‌‌​‌​‌​​‌‌​‌​​‌‌​‌‌​​‌‍legislative authority for such proceedings, and it is always a safe rule to have it appear of record that all the statutory requirements respecting the exercise of the right of еminent domain have been observed.

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 *19hearing, obtained an award of damages assessed in the manner asked for by him, and in such case the court should not lightly undo what has been so done.

The judgment of the court below in each case is affirmed.

Case Details

Case Name: Elbert v. Scott

Court Name: Supreme Court of Delaware

Date Published: Feb 17, 1914

Citations: 90 A. 587; 5 Boyce 1; 28 Del. 1; 1914 Del. LEXIS 1

Court Abbreviation: Del.