40 S.C.L. 286 | S.C. Ct. App. | 1853
The opinion of the Court was delivered by
By the Act chartering this company, (1845, II Stat. 327, Sec. 10, 11,) the company is authorized to take any land, that may he required by it in the execution of the purposes for which it was chartered, — subject to the duty of making compensation to the land-owner: if there cannot be agreement between the company and the land-owner as to the amount of compensation, either of them may apply to the Court for the appointment of commissioners to assess the compensation, or (as it is expressed,) make valuation of the land required by the company ; and the commissioners are required to return their proceedings to the Court, there to remain of record: “ Either party to the proceeding may appeal from the said valuation to the next session of the Court granting the commission, giving reasonable notice to the opposite party of such appeal, and the Court, upon satisfactory proof that the appellant has been injured by such valuation, shall order a new valuation to be made by a jury, who shall be charged therewith in the same term, and their verdict shall he final and conclusive between the parties, unless a new trial be granted; and the lands (and right of way,) so valued by the commissioners or jury shall vest in the said company in fee simple so soon as the valuation thereof may be paid, or tendered and refused.” The pendency of an appeal from the commissioners shall not interrupt the work of the company, but when the appeal may be taken by the company, it shall proceed in the work only on condition of giving a bond “ conditioned for the payment of said valuation and interest, in case the same be sustained, and in case it be reversed for the payment of the valuation thereafter to be made by the jury, and confirmed by the Court.”
The question now arises concerning the costs of an appeal from the commissioners, and the decision of it requires a full comprehension of the relations, rights and obligations growing out of the foregoing provisions.
The word costs does not occur in the charter, and probably there cannot be found in it anything, besides what is mentioned above, that is calculated to give the least intimation of the intention of the Legislature concerning the costs of an appeal.
In this State the right of the State, in the exercise of the eminent domain, to take private property for public use has been fully settled, and its power to grant this right to a corporation created for a purpose of public improvement has been solemnly recognized: (The L. C. & C. R. R. Co. vs. Chappell, Rice, 383, and cases there cited,) — the duty of the State to make compensation is secured by no constitutional provision, but rests on natural justice, which is to be invoked by petition to the Legislature: this duty may be imposed upon the grantee of a franchise as a condition of privileges granted, in which case the extent of the duty and mode of performing it, as defined in the grant, become matters of contract between the State and the grantee: (McLauchlin vs. R. R. Company, 5 Rich. 598) — if the whole duty required by natural justice should not have been imposed upon the grantee, or should not be performed faithfully, the obligation abiding upon the State covers whatever may remain unperformed.
If an assessment should be made by commissioners and returned to the Court, and neither party should appeal within the time prescribed, the assessment would be a written contract between the parties, and the sum assessed would be a debt of record due from the company to the land-owner. It might he recovered by an action of debt, — possibly an order for confirmation of it, as of an award, might he obtained; but without some action on it, it could hardly be supposed that judgment could be entered on it, much less that costs could he recovered.
The appeal to the jury is only a continuation of the previous proceeding before the commissioners, which was really commenced when either party gave to the other proper notice preliminary to an application for the appointment of commissioners.
This Court is of opinion that according to indications of the intention of the Legislature which may be discovered, judgment and execution may follow the valuation made by the jury. As to this, it has been argued, that the bond is required when the company appeals, as a condition of proceeding in the work: and that, if the company chooses to suspend the work, it may decline taking the land after an unsatisfactory valuation has been made by the jurythat the right in the land is withheld until payment has been made, and if the company should take, debt against it would lie on the proceedings which “ remain of record.” But besides what has been already said as to the general purport of the proceeding, we observe that the taking of the land must precede any application that can be made by the land-owner, and in mutuality of right ought to precede any to be made by the company: that land once taken cannot be declined without involving an acknowledgment of a trespass in the taking : that the bond is a limitation of the high power of
Costs, eo nomine, were not given at common law — (Bac. Abr. Costs, A,) — the right to recover them must depend upon some statute. The statute of Gloucester, (6 Ed. I., c. 1,) made of force here, by its recognition in other statutes which are expressly made of force, gives costs to the plaintiff in all cases where he recovers damages; and subsequent statutes confer a reciprocal right in such cases upon a successful defendant. (23 H. 8, c. 15, 2 Stat. 462; 4 Jac. 1, c. 3, 2 Stat. 510; 13 C. 2, Stat. 2, c. 2,2 Stat. 513; Beaufort vs. Danner, 1 Strob. 176.) Pilfold’s case and the Statute 8 and 9 Wm. 3, c. 11, Sec. 3, concerning costs in actions of waste, show that a distinction was for a long time made between cases where damages might have been recovered at common law and those' where damages are originally given by a statute subsequent to that of Gloucester; but the distinction has been overruled. (10 Co. 116, a; Cowp. 368; 2 Wils. 91; 3 Burr. 1723; 1 T. R. 71.) Indeed it must be admitted that although the rule often laid down has been, that statutes which give costs are to be construed strictly,' because eosts are a kind of penalty, the statute of Gloucester has for nearly a century been regarded as a remedial Act, and has received a liberal interpretation. (1 Salk. 205; 1 H. Blac. 13.) It is permitted to extend its operation to new subjects which have been created since it was passed, where this extension seems to promote the intention that prevailed in the creating Acts ; and where the intention has not been expressed, it has been sought in considerations of justice and expediency. Thus a party grieved, to whom by a new statute an action for a certain penalty has been given, without mention of costs, shall recover
Let us endeavor to discover what the Legislature probably intended concerning the costs in question. If by force of the stat. of Gloucester costs follow the recovery of a sum from the company, under the name of damages imputed to that sum, then no matter what the previous course of the proceeding may have been, any the least sum recovered must carry costs. In this very case the assessment of the commissioners has by the last verdict been reduced below one-fourth of its amount: but much worse cases might be imagined. $5,000 might be assessed by commissioners ; the land-owner, not satisfied, might appeal— he might crowd the Court with witnesses, and consume days in efforts to make his grievances appear, and yet the result, and the just one, might be a verdict of $50 for him. Would it be just or expedient that he should recover his costs ?
If it should be said that the costs should abide the result of the appeal, it will be found that no simple rule of this kind would serve. By this rule is meant that the party whose condition is made more advantageous by the verdict, should recover costs : — if no change of the assessment should be made, the costs to fall upon the appellant. But suppose an assessment of $500 — refusal of the company to pay — offer of the land-owner to accept $400, and verdict for $450. Ought the company to recover costs 1 Or, in case of a like assessment, suppose offer by the company to pay $600, and verdict for $550. Ought the land-owner to have costs 1 Or suppose an appeal by both parties, the land-owner claiming much more than the assessment, and the company contending that he had been already com
It has been urged that in this proceeding, the issue is to be ordered by the Court, and that under the rule laid down in the case of Todd vs. Stroud, 1 Rich. 25, “ in all issues which the parties are entitled to make up as a matter of right, or when the Court neglects to make an order on a feigned issue regulating the costs, the costs follow the result of the case.” An order of the Court is indeed required by the very terms of the 10th sec. of this charter, and some satisfying evidence must be shown before it is granted, but when granted it must be an order “ for a new valuation to be made by a jury.” (See 1 Rich. 3 ; Rice, 268; 1 McMul. 66.) Unquestionably under this provision the Court has control over the form in which the matter shall be submitted to the jury, the mode of trial, and in general all questions of practice involved: but the discretionary power of the Court over the costs could not be safely inferred from its discretion to grant or refuse a prescribed order ; and whether, without discretionary power in the Court, costs in this case follow the result, and if so, what is the result, are questions depending upon the general law under the statute of Gloucester and the special provisions of this charter. In a feigned issue, properly so called, the fiction is that the action is for recovery of a wager, and the verdict decides for some future purpose a distinct question of fact upon which the wager was laid. If no special direction concerning costs has been made, costs follow the recovery of the wager, as of any other sum of damages. Fitzwilliam vs. Max wall, 7 Taunt. 31. The Court has no discretionary power in such a case to refuse costs, if the plaintiff in the issue has not by his own consent been barred of his right to recover them. Herbert vs. Williamson, 1 Wils. 324. But as a feigned issue, not specially directed by the statute, cannot be tried without the consent of the Court, and all proceedings in it without such consent, are considered as a contempt and will be stayed, the Court, when it orders a feigned issue, may require the parties to consent
After the most careful examination of the principles which control the recovery of costs in issues ordered by the Court of its own authority, or by the Court under the directions of a statute, or by a statute itself, the irresistible conclusion seems to be that either the costs must, under the statute of Gloucester, be recovered by the land-owner if he recovers any thing to be paid by the company, and by the company if the verdict is for it, or else that no costs at all are to be recovered upon the valuation by the jury, any more than upon the assessment by commissioners. If the charter is entirely silent, the former alternative must prevail — but we think that a careful scanning of the words of the charter will show that the latter is more consistent with
The appeal from Commissioners to the Court is more like to the appeal from the Ordinary to the Common Pleas, than to any thing else known in our legislation or practice. The first instance of it found in our statutes is in the charter of the South-Carolina C. and R. R. Company granted in 1828, (8 Stat. 359,) from which the 10th section of the charter of the Greenville and Columbia R. R. Company has been copied almost verbatim. In 1828 .all lawyers in the State were accustomed to' the exclusion of costs in cases of appeals from the Ordinary, and would naturally have brought the appeal there provided from commissioners to the Court under the same rule. In favor of the latter the judgment of the Court following the verdict, and the recovery of damages, might have suggested a difference, to a patient inquirer : but opposed to them, were the expressions indicative of legislative' intention. The hardship of a party entitled to compensation carrying on at his own expense a litigation against a company that resisted a just demand, would have pressed upon his attention : but it would have been met by considerations of equal injustice and inexpediency that would often result from
We conclude that the whole proceeding by appointment of commissioners and trial upon appeal from them to the Court, was intended as a speedy, cheap, and irregular mode of ascertaining the quantum of compensation, and that recovery of costs was not intended to follow the ascertainment.
The motion is granted: and it is ordered that the costs be struck out of the judgment and execution.
Motion granted.