| Cal. | Jul 1, 1868
The motion of the respondent, Murphy, to dismiss the appeal, is answered by the case of the Central Pacific Railroad Company of California v. Pearson et al., ante 247. We there held that the provisions of the Practice Act in relation to motions for new trials in civil actions have no application to proceedings of this character. Under the rule announced in that case, with which we are entirely satisfied, the motion to set aside the report of the Commissioners was properly
Aside from special grounds relating to certain respondents, . which will be considered separately, we are asked to set aside the report because the damages awarded by the Commissioners are excessive, and because their awards are contrary to the evidence. A very strong case would have to be made before this Court would disturb an award upon those grounds.
The Commissioners are not bound by the testimony of witnesses, but are not only allowed but required to view the premises and found their awards upon their own judgment as well as that of the witnesses. But were it otherwise, and were they, like a jury in a Court of justice, bound to find according to the testimony of the witnesses, there is nothing in this case which would justify us in setting aside the awards. No case has ever come here where the testimony was more conflicting. Witnesses on the part of the respondents, in nearly every instance, placed their estimates at from two to four times as high as the Commissioners; while, on the part of the appellant, the witnesses went quite as far in the opposite direction, claiming that the benefits would far exceed the damages. Where there is so wide a difference, the Commissioners would be justified in discarding all the testimony and acting upon their own judgment, which may have been done in this case, and it is very clear that this Court cannot substitute its judgment for theirs.
Nor can we set aside the award to James R. Lowe, upon the ground that the land claimed by him was a public street. There was some evidence tending to show that such may have been the case. The evidence is, however, very meager, and there is no reason, as we consider, why we should not follow the conclusions reached by the Court below.
Nor are we disposed to disturb the award in favor of John Synott. The scope of the transaction between him and Mann does not seem to have been understood alike by them,
We think, however, that the award to James Murphy must be set aside. The appellant had a deed from him, and we are unable to understand upon what ground it can he claimed that he was thereafter entitled to damages at the hands of the Commissioners. The appellant had obtained a right of way by contract, so far as he was concerned, and he must look to that contract, whatever it may have been, for his compensation.
The order of the Court below is affirmed, except as to the award in favor of James Murphy, and as to that it is reversed,- and the Court below is directed to strike it from its judgment and dismiss the proceeding as to him, but without costs against Murphy.
Mr. Justice Rhodes expressed no opinion.