169 P. 44 | Mont. | 1917
By appropriate proceedings begun in the district court of Fergus county, the plaintiff sought to condemn for railroad purposes a strip of ground containing 13.86 acres across the northwest quarter of section 36, township 16 N., range 17 E., M. P. M., belonging to the defendant. In due course the usual order
The sole question presented is whether the plaintiff’s attempt to appeal under section 7344 was sufficient, or, to paraphrase the language of plaintiff’s counsel: Is either party, in taking
The plaintiff grounds its contention upon the proposition that, section 7344, authorizes an appeal from “any assessment,” and argues that, since under section 7341 the commissioners are required to “ascertain and assess” the various elements of damage (but not the total), each finding made in accordance with that section, constitutes “an assessment” from which appeal will lie. We think this is untenable. The very section (7344) on which the right of appeal depends provides that the appeal “shall be brought on for trial upon the same notice and in the same manner as other civil actions, and unless a jury shall be waived by the consent of all parties to such appeal, the same shall be tried by jury, and the damages to which appellant may be entitled by reason of the appropriation of his property, shall be reassessed upon the same principle as hereinbefore prescribed for the assessment of such damages by commissioners.” This clearly implies that not only is the case to be tried de novo before the jury, but it is to be tried de novo as to all the elements which go to make up “the damages,” to which the owner may be entitled “by reason of the appropriation of his property.” Again: “Upon any verdict or assessment by commissioners becoming final, judgment shall be entered declaring that * # * the right * * # to take, use and appropriate the property described in such verdict or assessment * * * shall * * * be and remain in the plaintiff. * * * In
In this we are confirmed by the language of cognate sections: “No improvements upon the property subsequent to the date of the service of summons shall be included in the assessment of compensation or damages.” (Sec. 7342.) “Within thirty days after making their appraisement and the assessment of damages, the commissioners must file a report,” etc. (See. 7343.) “The plaintiff must, within thirty days after final judgment, pay the sum of money assessed.” (Sec. 7346.) “At any time after the report and assessment of damages of the commissioners has been made * * * and either before or after appeal from such assessment * * * the court * * * shall have power to make an order that upon payment into court * * * of the amount of damages assessed, * # * the plaintiff be authorized, if already in possession * * * to continue in such possession: * * * Provided, however, that * * * the court * * * may * * * require the plaintiff * * * in addition to paying into court the amount of damages assessed, to give bond * * * conditioned to pay defendant any additional damages and costs over and above the amount assessed; * * * the amount assessed as damages by the commissioners or by the jury on appeal, as the case may be, shall be taken and considered * * * as just compensation; * * * but the plaintiff, by payment into court of the amount assessed, or by giving security as above provided, shall not be thereby prevented or precluded from appealing from such assessment; * * * in all eases where the plaintiff deposits the amount of the assessment * * * the defendant * * * may at any
The order dismissing plaintiff’s appeal was properly made, and the judgment before us must therefore be, and it is, affirmed.
Affirmed.