In re Bradley

May 19, 1899

Reporters:: ,
Before:: Watebman

WatebmaN, J.

— I. We have held that an appeal lies 1 from a ruling such as that in question. Price v. Insurance Co., 80 Iowa, 408.

II. We may premise what we have to say with the statement that, in the absence of some special provision requiring *478• it, there is no right to a trial by a jury in condemnation cases. The reason for this rule is that at common 2 law it was the practice to enforce the right of eminent domain by special proceedings, without the intervention of a jury. Lewis Eminent Domain, sections 311, 312; Railroad Co. v. Trout, 32 Ark. 17; Koppikus v. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Commissioners, 16 Cal. 248; People v. Blake, 19 Cal. 579; Whiteman v. Railroad Co., 2 Har. (Del.) 514; Dronberger v. Reed, 11 Ind. 420; Anderson v. Caldwell, 91 Ind. 451; Central Branch U. P. R. Co. v. Atchison, T. & S. F. R. Co., 28 Kan. 453; Langford v. Commissioners, 16 Minn. 375 (Gil. 333); People v. Michigan S. R. Co., 3 Mich. 497; City of Minneapolis v. Wilkim, 30 Minn. 140 (14 N. W. Rep. 581); Plank-Road Co. v. Pickett, 25 Mo. 535; City of Kansas v. Hill, 80 Mo. 523; Backus v. Lebanon, 11 N. H. 19; Beekman v. Railway Co., 3 Paige, 45; Livingston v. Mayor, etc., of New York, 8 Wend. 85; Pennsylvania Ry. Co. v. First German Lutheran Congregation, 53 Pa. St. 445 ; 7 Enc. Pl. & Prac. 546, It is therefore no violation of the general constitutional provision that secures to the citizen his property unless deprived thereof by “due process of law” to refuse a jury trial in actions of this nature. 3 Section 1947 of the Code relating to appeals in cases of this kind is as follows: “An appeal may be taken to the district court from the order of the board of supervisors in fixing the assessment upon lands, in the same man ner as appeals may be taken in the location of roads, and within the same time * ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍* * The petitioners, or any of them, and claimants for damages as compensations for lands taken or injuries sustained in any .such proceedings, may in like manner appeal,” etc. “And the county auditor shall keep- a full and complete record of all -proceedings in each case, and, upon an appeal being taken shall make out transcripts thereof as provided in appeals taken from the assessment of damages in cases of the location of roads.” This provides that the appeal may be taken “in the same manner appeals may be *479taken in tbe location of roads.” Tbe manner of taking appeals in road cases was followed in tbe case at bar. See Code, sections 1514, 1515. We do not’ tbink tbe method of trial in snob cases is included in “tbe manner” of taking tbe appeal. By special provision the amount of damages to which tbe claimant in road cases is entitled is to be ascertained by ordinary proceedings (section 1516), and because of this he is ‘entitled to a jury trial. City of Des Moines v. Layman, 21 Iowa, 154; Sigafoos v. Talbot, 25 Iowa, 214. It is only upon tbe matter of damages.that tbe claimant is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍entitled to a jury in road cases. In the case at bar the appeal to tbe district court was from tbe action of tbe board of supervisors in refusing to order tbe construction of tbe ditch. We shall enter upon no extended argument to show that this is a special proceeding. Under our statute all controversies in courts of justice are comprehended under one of two beads (Code, section 3424), — actions or special proceedings. An action is a controversy in which one party as plaintiff seeks against another known as “defendant” tbe enforcement of a private right or tbe redress of a private wrong. Every other civil controversy is a special proceeding. Code, section 3425. In this matter there is neither a plaintiff nor defendant, though appellees have sought to make it appear there is, by the manner in which counsel entitled the documents filed in this court. Nor is a private right claimed. What is asked is of a public nature. The right of eminent domain cannot be exercised in behalf of private interests only. Unless particularly provided for, a jury is not usually allowed in a special proceeding. See, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as to probate of wills prior to the enactment of chapter 158, Laws Thirteenth General Assembly, Gilruth v, Gilruth, 40 Iowa, 346. An appeal from an assessment for taxation is triable without a jury in the district court. Davis v. City of Clinton, 55 Iowa, 549. So is a proceeding in habeas corpus (In re Bresee, 82 Iowa, 573), and a proceeding to establish a lost corner of a survey of lands (Gates v. Brooks, 59 Iowa, 510-512). The very fact that specific *480provision is made for trial by jury in some cases of this nature — that is, in some special proceedings — excludes the thought that all are triable in that manner of common right. We do not think that appellees’ claim derives any 4 support from sections 3431 and 3438 of the Code. The first of these sections provides, in effect, that an action of this kind must be by ordinary proceedings. The idea is to distinguish the method of trial from equitable procedure. That it does not mean to award a jury trial, is substantially held in the cases just cited, and also in Shaw v. Nachtwey, 43 Iowa, 653, and Duffield v. Walden, 102 Iowa, 676. Section 3438 provides that the rules governing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the prosecution of civil actions shall be followed in special proceedings not otherwise regulated, so far as applicable. Keeping in view the common-law rule that a jury trial is not permissible in an action of this character, and it would seem that this is very indefinite language in which to award that right. We repeat what we said as to the other section, the cases cited are not in accord with any such construction. We reach the conclusion that the trial court erred in assigning this proceeding for trial by jury, and its action is therefore reversed.