Undеr a provision of its amended charter (sec. 37, chapter 1.11, Pr. Acts of 1883) the defendant, on the 20th of August, 1887, condemned сertain land of the plaintiffs and entered thereon and constructed a street, which it has continuously used ever sinсe. The charter does not give the plaintiffs the right to institute proceedings for the assessment of damages, but, in case of disagreement, it imposes upon the defendant the duty of causing its Marshal to summon six freeholders who shall ascertain such damages as well as any special advantage which may result to the owners b}7 reason of the сontemplated improvements. The report of these freeholders, when confirmed by the Aldermen, may be aрpealed from by the owners, and the appellate court shall have power to increase or diminish the amount of damages, etc., but shall “in no wise adjudicate the necessitj7 of the improvement.” It is further provided that nо appeal shall hinder or delay the Aldermen in making the proposed improvements, provided the amount of damages assessed by the freeholders be paid into the office of the Clerk of the Court. The freeholders in this сase reported that no damage had been sustained by the plaintiffs, and an appeal was taken to thе Superior Court. Upon the hearing of the appeal at December Term, 1889, the defendant insisted that all of thе proceedings which it had instituted subsequent to the condemnation and taking of the land were void, assigning as one of its reasons that the said freeholders were not summoned for the *749 purpose of assessing damages and benefits, but simply tо “ view and lay off a street.” The plaintiffs assented to the proposition that the proceedings were void and a judgment was entered declaring the same. The appeal was dismissed at the cost of the plaintiffs, and from this part only of the judgment they appealed to this Court. That appeal was abandoned.
Thus it appears by thе defendant’s own admission that it has entered upon and is in the use and occupation of the plaintiffs’ property without having taken any valid legal proceedings to have the damages, etc., assessed, and, although the plаintiffs have demanded that the defendant proceed to have such assessment made, it has refused and still refuses to do so. The plaintiffs pray that a mandamus issue compelling the defendant to perform the duty so plainly imposed upоn it by its charter, but this is resisted upon several grounds, which we will now proceed to examine.
It is urged that the plaintiffs are estopped upon the principle of res adjudicata. We do not think that the principle applies to the peculiаr circumstances attending this case. It was the duty of the defendant to have instituted proper proceedings. This it fаiled to do, and, at its own instance, a judgment was entered with the consent of the plaintiffs declaring that the proсeedings appealed from were void. The substance of the judgment was that the defendant had made no legаl attempt to perforin its statutory duty, and its effect was to leave the parties exactly in the same jeosition they occupied before the proceedings were instituted.
It is therefore the plain duty of the defendant tо proceed according to the provisions of the charter to have the damages assessed. It is insisted, however, that mandamus is not the proper remedy, inasmuch as the plaintiffs may have adequate relief at common law. The principle asserted is well established, but it must be borne in mind that in its *750 application “the existing legal remedy relied uрon as a bar to interference by mandamus must not only bo an adequate remedy in the general sense of the term, but it must be sрecific and appropriate to the particular circumstances of the case; that is, it must be such а remedy as affords relief upon the very subject-matter of the controversy.” High Extraordinary Remedies, 19.
Now it may be true, as contended by counsel, that the defendant; alone having the power to initiate statutory proceеdings and having failed to do so, may bo treated as a trespasser and sued in ejectment (Mills Eminent Domain, 89), but it is clear that such a remedy would not be appropriate to the peculiar circumstances of this case. The dеfendant is still occupying the land as a street, claiming it under the right of eminent domain conferred by its charter, and the рlaintiffs evidently prefer that the street should remain, and therefore do not elect to treat the defendant as a trespasser, Such being the case the appropriate remedy is to compel the defendant tо assess the damages as provided by its charter, in accordance with this view it has often been held that mandamus is a proper remedy in cases of this character. Mr. High (supra, 318) says: “The writ hаs frequently been granted to protect the rights of land owers to compensation for their lands taken in the construction of works of public improvement. And where a railway or other corporation is vested with the right of eminеnt domain, it itaay be compelled by mandamus to take the necessary stops for summoning a jury to assess damages for thе property taken or damaged.” To the same effect are Lewis on Eminent Domain, 614; Heard’s Short Ex. Rem., 333, and 14 Am. and Eng. Enс., 162, and the numerous cases cited in the notes. These authorities abundantly sustain the position that where the statute dоes not provide that the owner may institute proceedings the party condemning, *751 on whom is imposed the duty, may he compelled to do so by mandamus.
Being clearly of this opinion, wе have deemed it unnecessary to enter into an elaborate discussion of all the authorities presented by the intelligent counsel. Affirmed.