Louisville, New Orleans & Texas Railway Co. v. Postal Telegraph-Cable Co.

| Miss. | Apr 15, 1891

Cooper, J.,

delivered the opinion of the court.

No error is shown in the proceedings of the commissioners to award damages for which a new inquest should have been directed by the judge of the circuit court. The proceedings were had under the provisions of an act, approved March 16, 1886 (Laws, 93), by the third section of which it is provided that condemnation may be made of any land in cases where the telegraph company shall not agree, with the owner or owners, etc., for a right of way over the same. That the company had not agreed with the railway company for an easement is manifest, and under the strict letter of the law the condition existed on which resort might be had to the right of condemnation. If we should apply the rule strietissimi juris, appealed to by the railway company, it would be fatal to its contention; but, we think, the record does show an effort upon the part of the telegraph company to adjust the matter by contract, and that the proposition so to do was to “ be considered of” by the railway company, and that, no reply being made by that company within a reasonable time, the telegraph company might lawfully proceed in condemnation under the statute.

The second objection taken by appellant to the award is not supported by the record. That objection is that the record does not show that the commissioners summoned by the sheriff under the precept from the clerk were “ good and lawful men, citizens of the county” of Claiborne, as required by the 6th section of the act. In this counsel are mistaken. The precept commanded the sheriff to summon such men, and though his return does not show that they were possessed of the qualifications required, that fact is shown in the record of the proceedings kept by the clerk, which record by the 9th section of the act he is required to keep.

If it be conceded that the commissioners should have permitted counsel for the railway company to open and conclude the argument, and that illegal testimony was heard by them, it would not follow that a new inquest should have been awarded. The statute declares that upon a petition for a new award, “if the judge shall be of the opinion that the commissioners acted upon testimony that was irrelevant or incompetent, and that their award was contrary to the law, and such evidence as was competent and relevant, and that injustice has been done, a new inquest and assessment shall be ordered by him.” As was said in Tel. Co. v. A. & V. Ry. Co., ante, 314, “ in such cases as this, much must be left to the determination of the commissioners, for it is often extremely difficult to arrive at even approximate justice where questions of value are to be determined. Scarcely anything is so variable, according to circumstances, as value.”

The judgment is affirmed.