11 Or. 282 | Or. | 1884
By the Court,
This is an action under the statute for condemning a right of way for a railroad.
The necessity for the right of way and the damage resulting from its establishment, were the only issues submitted to the jury. The jury found for the defendants in the sum of two thousand seven hundred dollars, and a judgment thereon in their favor was entered in the common form for the recovery of the sum found for them by the verdict. The plaintiff, the railroad company, appeals, and assigns for error:
1. The insufficiency of the verdict to support any judgment.
2. The improper form of the judgment actually entered.
The verdict finds in effect that the respondents are entitled to damages in the sum named therein.
This finding necessarily includes the determination of the issue as to the right of way being necessary to the appellants
The respondents were not entitled to any damages unless the appellant was entitled to have the right of way condemned to its use, and finding the former necessarily included a determination of the latter. (White v. Bailey, 10 Mich., 155.)
The judgment entered upon the verdict is not, however, in proper form. No judgment in personam against the appellant was permissible. The only judgment the court was authorized to render was one appropriating the right of way to the appellant’s use after payment of the damages-assessed by the jury to the respondents. (Oregonian Ry. Co. v. Hill, 9 Or., 377.)
It is not necessary, however, to disturb the verdict. The error lies in the form of the judgment alone. The judgment must be reversed with directions to the court below to proceed upon the verdict in conformity with the views herein expressed.
Judgment reversed.