42 So. 377 | Miss. | 1906
delivered the opinion of the court.
On the 21st of July, 1905, the TIelm & Northwestern Railroad Company made application for condemnation of a strip of land to be used as a right of way for said company. The land sought to be condemned was the property of appellees. The proceedings leading up to the organization of the court of eminent domain seem to conform to all the requirements of the statute, and on the 29th day of July, 1905, the court met, viewed the land sought to be condemned, heard the evidence, the jury were instructed by the court, and the value of the land sought to be condemned assessed at something over $4,000; the jury giving’ to each of the defendants such proportion of said sum as they found the land belonging to him was worth. There is no complaint in any part of' the record as to the regularity of the proceedings leading up to the condemnation; the only complaint being as to the amount allowed by the jury. On the 7th day of August, 1905, appellants executed a bond, payable to appellees, in the sum of $300, in conformity to section 1696, Code 1892, and prayed an appeal to the next term of the circuit court. When the circuit court convened, the defendants on the 17th day of November, 1905, made the following motion; that is to say: A motion was made by the defendants to dismiss plaintiffs’ appeal for the reason that the amount awarded them by the eminent domain court had been paid into the hands of the clerk of the circuit court by the plaintiff for landowners, and was paid by the clerk to defendants, and the plaintiff thereupon entered the land and appropriated the same to its use for the
Section 11, article 3, of the constitution of the State provides that “private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof in a manner to be prescribed by law.” It will be noticed that this section requires that due compensation be first made before the property can be taken or damaged for public use. Following out the further provision in this section of the constitution, which says that private property shall not be taken, etc., except on due compensation being first made to the owner or owners thereof in a manner to be prescribed by law, the legislature has prescribed the manner in which private property may be taken for public use in chapter 40 of the code of 1892, on the subject of eminent domain. By sec. 1693 it is provided that: “Upon the return of the verdict and entry of the judgment, if the applicant pay the defendant whose compensation is fixed by it, or tender to him the amount so found and pay the costs, he or it shall have the right to enter in and upon the land of such defendant so condemned, and to appropriate the same to the public use defined in the application; and in case the defendant and his attorney absent themselves from the
By this section either of the parties has a right to appeal to the circuit court from the finding of the jury in the special court by executing a proper bond in the sum of $300. It is further provi ded in this section, if the appeal be by the defendant, that it shall not operate as a supersedeas, nor defeat the right of the applicant to enter the land of the defendant and appropriate the same to public use for which the land has been condemned. But if the applicant be dissatisfied with the finding of the jury in the special court, and desires to appeal, it is not provided in the statute, nor. contemplated by it, that it may execute a bond in the sum' of $300 and appeal to the circuit court and at the same time appropriate the land to the use de
Tbe question in tbis case being one which is dependent solely on tbe constitution and statutes of tbis state, we have received little aid in reaching our conclusions from tbe investigation of outside authorities; but such assistance as we do get from them supports our conclusions.
Let the judgment be ajjirmed.