88 W. Va. 251 | W. Va. | 1921
On the trial of an action on the case for damages alleged to have been sustained by plaintiff from the lowering of the grade p of the street in front of her property in the City of Clarksburg, the verdict of the jury was in favor of plaintiff for $355.41, which verdict was on motion of plaintiff set aside, and a new trial awarded. From that judgment defendant obtained the present writ of error.
The principal ground relied on to sustain the judgment is that plaintiff was entitled to have the compensation for the damages sustained by her ascertained by an impartial jury of twelve freeholders, as provided'by section 9 of article III of the Constitution of this. State; and this was the ground upon which the record shows the circuit court was persuaded to award a new trial.
The provision of the Constitution relied on is as follows: “Private property shall not be taken or damaged for public use, without just compensation; nor shall the same be taken
Plaintiff’s bills of exceptions numbers 1 and 2 show: First, that after the case had been called for trial and before the jury was impaneled, the plaintiff demanded a jury of twelve freeholders to try the ease, which demand the court refused, and declined to permit none but freeholders to qualify as. jurors to try the ease, to which action of the court the plaintiff excepted; Second, that when the case had been so called for trial and while the jury was being impaneled to try the case and after the court had concluded propounding interrogatories to the jury for the purpose of qualifying them, and after a jury of twenty had been sworn’to answer questions, the court turned to counsel and asked if they desired to have the jury asked any further questions, and that thereupon the plaintiff by counsel requested that the jury be asked whether they were freeholders and that each juror be asked whether he was a freeholder, there then being twenty in the box and being interrogated and qualified as aforesaid, which request of the plaintiff by counsel the court refused, and declined and did not ask the said jurors or any of them whether he was a freeholder, to which,action of the court she again objected and excepted.
In support of the original rulings of the court denying the plaintiff the right to a jury of twelve freeholders counsel for the city rely mainly on two propositions, namely: First, that the last clause of section 9 of article III of the Constitution is not self-executing, but addressed to the Legislature, and that the Legislature not having enacted any general law to carry said provision into effect, as it had by chapter 42 of the Code,' where land is to be taken or damaged for public use by
It is contended that the constitutional right to a jury of freeholders when private property is to be taken or damaged for public use by condemnation was made effectual by the provisions of chapter 42 of the Code, but the proposition contended for is that when the property is to be damaged but no part of it taken, the only remedy given for the wrong is an action on the case at common law with the intervention only of a common-law jury, such as was had in this case. In the one case it is said the Legislature has provided the manner in which the compensation to the owner shall be ascertained, that is, -upon petition by the condemnor, after effort to agree with the owner, the appointment of commissioners of freeholders by the court as provided, to ascertain what will be a just compensation, and upon demand by either party after report by the commissioners, by the impaneling of a jury of freeholders in such manner as the court shall direct, as provided by section 17 of said chapter 42 but that in the other case no method of determining the compensation having been provided by law, the common-law remedy alone must be relied on and pursued. In Supervisors of Doddridge County v. Stout, 9 W. Va. 703, a case which arose and was determined according to the law in force prior to the Constitution of 1872, it was decided that the case was properly determined as provided by the provisions of chapter 42 of the Code, the only method then prescribed for ascertaining the compensation to the owner of the land to be taken, and that the new provision of the Constitution of 1872 .giving the right to a trial by a jury of freeholders, not being self-executing and not carried into effect by appropriate legislation, could have no application. In Johnson v. City of Parkersburg, 16 W. Va. 402, the proposition relied on was that the first clause of said section 9, article III, prohibiting the damage as well as the taking of private-property for public use without compensa
One of the well recognized tests for determining whether a constitutional provision is self-executing, is that the right or duty which it imposes may be enforced without the aid of legislative enactment. 6 R. C. L. §55, p. 59, citing Davis v. Burke, 179 U. S. 399, and numerous other cases. In the latter case the Supreme Court quotes from Cooley’s Constitutional Limitations, the following: “A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-execut
It is said by counsel for defendant that there is nothing in the record showing that the jury which tried the case were not qualified freeholders, and that the presumption is that they were freeholders. In Supervisors of Doddridqe County v. Stout, supra, it is said that it was as much the duty of the defendants as of the court to see that all the commissioners were freeholders. In this case the demand of the plaintiff was twice rejected by the court. The court refused to require a jury of freeholders, presumptively, therefore, they were not all freeholders. If no demand or objection had been made, the rule of Ohio River R. R. Co. v. Blake, 38 W. Va. 718, syl. 3, would apply. It is said that when counsel were inquired of, before the jury were sworn, whether they desired to make any further inquiry, they should have availed themselves of the opportunity offered to inquire whether the jury were freeholders, and not having done so, they must be regarded as having waived the right. But two requests having previously been made, it is to be presumed the court would have receded from its former rulings ? Besides, as the court below set aside the verdict on the ground that it had erred in denying plaintiff
Counsel for plaintiff, during the trial, appealed to the court to change or modify the rule promulgated in prior decisions here and elsewhere for measuring the compensation to the owner when property is taken or damaged for public use. The suggestion was that in determining the damages, the evidence should be limited to the value of the property immediately before the damage is done and immediately after/but before completion of the proposed improvement, by the laying of crossties and rails in the case of a railroad, and in the case of improvement of streets and alleys of a municipality before the concrete base and brick or other surface' of street paving is laid; this for the purpose of avoiding the difficulty of distinguishing between general and special benefits in ascertaining damages recoverable in such cases. The rule most recently stated is that, “The true measure of damages to property abutting' on a public street, occasioned by a change in the grade thereof, is the difference between the value of the property immediately before, and its value immediately after, the street improvement; special or peculiar, but not general, benefits to the property being considered and included- in the latter value." Jones v. City of Clarksburg, 84 W. Va. 257, 99 S. E. 484. For the reasons there given, which need not to be repeated here, we adhere to that rule and see no reason for accepting the suggestion of a change.
We, therefore, affirm the judgment.
Affirmed.