Owen v. Jordan

27 Ala. 608 | Ala. | 1855

CHILTON, C. J.

In proceedings of this character, where a special and limited jurisdiction is conferred, either upon an individual, or upon a court, it must affirmatively appear that the requisitions of the statute have been complied with. A number of decisions, recently made by this court, and which arc too familiar to require citation, fully establish this proposition.

In this case, the court very properly quashed the return made by the sheriff of the finding of the jury, because it was defective,- — -1st, in not showing that the jury were sworn by the sheriff, or his deputy, to discharge their duties fairly and to the best of their ability,” — as required by the Code (§ 2098); 2d, in failing to show that the jury were charged by the sheriff, or his deputy, as required by the several clauses of the section of the Code above referred to; and, 3d, because the verdict or inquest does not respond to these matters so required to be given them in charge, and which they were summoned to ascertain, but ascertains merely, 1st, that the mill as it now stands is a benefit to the neighborhood ; 2d, that it harms no one; 3d, that to.raise the dam any higher it would injure W. H. Jordan, but they cannot undertake to say how much ; 4th, that it might cause sickness; and, 5th, that in their judgment the -water ought not to bo raised any higher.

This is not the finding required by the statute, which provides, — 1st, that they shall examine the land above and below, which may probably be overflowed or injured, and ascertain and assess the damages resulting from the erection of such dam, to the several owners of such lands; 23, if the residences of such owner, or the outhouses, enclosures, gardens, or orchards, thereunto immediately belonging, will be overflowed ; 3d, if the health of the neighborhood will probably be endangered ; and, 4th, if any other mill or water-works will be overflowed. — Code, § 2098.

These are the several matters about which they are to be charged to inquire, and their inquest of which is required to be written down and signed by them, or a majority of them, and delivered to the sheriff, who is to return it to the probate judge. — Code, § 2100.

It is too clear, we think, to admit of serious doubt, that the inquest is wholly insufficient. It does not substantially conform to the law.- — -Burden v. Stein, 25 Ala. 455.

Let the judgment be affirmed.