Stough v. Chicago & Northwestern R'y Co.
71 Iowa 641
Iowa
1887
Check Treatment
.Rothrock, J.

1. Railroads on Streets: dama&es to lot-owners: appraisement by sheriff’s jury. I. It is provided by section 464 of the Code that cities and towns shall have power “ to authorize or forbid the location and laying down of tracks for railways and street railways on all streets, alleys and public places, but no railway track can thus be located and laid down until after the injury to jaroperty abutting on the street, alley or public places upon which such railway track is proposed to be located-and laid down has been ascertained and compensated in the manner provided for taking private property for works of internal improvement in chapter 4, tit. 10, Code 1873.”

In the case of Mulholland v. Des Moines, A. & W. R’y Co., 60 Iowa, 740, it was expressly determined that the manner of assessing the damages provided for by section 464 of the Code referred exclusively to the company, and not to the abutting owner. That case was followed in Wilson v. Des Moines, O. & S. R’y Co., 67 Iowa, 509. We cannot regard this as an open question, and must adhere to-the construction of the statute already adopted.

But it is claimed that the jury selected by the sheriff was the same as had previously been selected at the instance of the railroad company, and that, under section 1245 of the Code, they were the legally constituted tribunal to assess all damages to the owners of real estate in the county, and that the railroad company, or any land-owner, may have the damages assessed by the jury thus selected, upon proper notice. This section has reference to land taken and appropriated for fight of way. Under the construction placed upon section 464 of the Oode by the cases above cited, the *643owner of property abutting on a street bas no right to pursue this method of ascertaining his damages.

2. Appeal: question op jurisdiction not waived. It is further claimed that, if the proceeding was irregular and illegal because the owners of the abutting lots had no power to institute the condemnation proceedings, advantage could not be taken thereof by an appeap j[8 sai¿ that the remedy, if any, was by certiorari. It is a general rule that objections to the jurisdiction of the court over the subject-matter of the action are never waived. They are not waived by an appearance of the defendant, nor by an appeal from a tribunal having no jurisdiction to hear and determine the question presented. The sheriff’s jury in this case had no power to act; it was without jurisdiction; and this question, we think, could properly be raised and determined upon an appeal. See Spray v. Thompson, 9 Iowa, 40.

3. Procedure: when no jurisdiction op subject-matter. II. The defendant appealed because the court did hot sustain the motion to dismiss, upon the ground that the railroad merely crossed the streets, and that plaintiffs were therefore not entitled to damages, It is manifest that the court was correct in refusing to entertain this ground of the motion. Having ascertained and determined that it had no jurisdiction of the , subject-matter of the proceedings, it would have been improper to have undertaken to determine -what the right of the parties would be if properly presented to the court for its- determination.

Aebtkmed.