7 W. Va. 301 | W. Va. | 1874
This was a proceeding on the part of the Railroad Company, under the provisions of chapter forty-two of the ' Code of West "Virginia, for taking so much of the defendant Halstead’s lands as they required for their use, in the county of Fayette.
Commissioners were duly appointed to make the ap-praisement required by law, and on the 24th day of February, 1871, made and signed their report, which was returned to court. At a term of the court held on the 22d day of May, 1872, the defendant Halstead, by counsel, moved the court to set aside said report, for errors appearing on its face. The motion was resisted by the Company, but on argument the same was granted, and the report was set aside. To the order of the court setting aside the report the plaintiff excepted, and from it has "taken its appeal to this Court. The report recites that the commissioners are of the opinion that twenty-three hundred and twenty dollars will be a just compensation for so much of the said real estate as is proposed to be taken by the said applicant; (and further omitting the description of the land) as well as for the damage to the residue to the said real estate beyond the peculiar benefits which will be derived in respect to such residue from
It was expressly held by this Court in the case of Chesapeake and Ohio Railroad Company v. Robert Patton, 6 W. Va., 147, that a party is entitled to have the “just compensation,” provided for by law, paid to him exclusively in money. The statute does -not contemplate the payment to any extent -in any other way. The report before us reserves to the ' defendant the liberty of constructing certain easements .over the land which has thus been taken by the Company, and which becomes, under the provisions of the Code, their absolute propérty. If this reservation was signed by the ■ commissioners to be a part of the'compensation to which the party was entitled, either for the land taken or for damages, the report is erroneous.
It has been claimed in argument, -however, that the report, being complete and perfect, without this paragraph, and the commissioners having settled a “just compensation” in both these respects, the paragraph should be treated as surplusage and declared a nullity. There is some force in this view ; still the language is there, and for aught that we can see or tell, was to constitute a substantial and material part of the report. It is designed to confer additional benefits upon the party,
Judgment Affirmed and Cau'se Remanded.