| Miss. | Oct 15, 1886
delivered the opinion of the court.
There is in the record an agreed statement of facts by which it appears that in 1872 the appellant and her brother were the owners of the lands described in the suit; that in 1872 the Memphis, Holly Springs and Selma Railroad Company (of which the appellee is the successor) entered upon the lands and began the construction of its road, and no objection was' made thereto by the owners of the land; that in 1873 work was suspended and not resumed until 1881, at which time the appellant was the owner of the land and as such executed a deed conveying to the company a right of way “ on condition that the road is built by the expiration of two years from date;” that within the two years the road was built between Byhalia and Holly Springs, but the whole road was not built within that time; that in 1884 the appellant fenced up the right of way and prohibited the company from entering thereon until compensation should be made for the way and damages to her other property caused by the road ; that one Erb was appointed receiver of the company by the United States District Court for the Northern District of Mississippi, and that appellant petitioned that court to restrain its receiver from entering upon the premises until compensation made, to which the receiver responded with a counter-petition that appellant should be restrained from refusing to deliver up possession of the right of way to him ; that the said court without taking any steps- to have the right of way condemned issued a peremptory injunction to place its receiver in possession of the right of way under and by virtue of which he entered; that in its final decree directing a sale of the railroad and its franchises the said court reserved to appellant the right to prosecute her petition for damages, and the purchaser of the property took it subject to any judgment thereon which the appellant might recover against the receiver. It further appears that since the purchase of the road at such sale the appellee has duly organized as a railroad company
In December, 1885, the appellant made application to a justice of the • peace for a writ of ad quod damnum, as provided by § 10 of the charter of the appellee, which writ was issued, commanding the sheriff of the county to summon a jury of twelve disinterested freeholders to view the premises and make an award. In obedience to this writ the sheriff returned that he summoned twelve persons, giving their names, but not stating that they were disinterested freeholders, and also returned the verdict of the jury by which a certain sum was awarded to the appellant. The company has continued in the occupancy of the right of way and refuses to pay the award, and to compel its payment the appellant exhibited her petition in the proper circuit court for a peremptory mandamus. By the charter of the company (Acts of 1859, p. 51, § 10) it is provided, “That if said company and the owner, or other persons, etc., cannot agree as to the price of the land required for said road application may be made to a justice of the peace of such county, who shall thereupon issue his warrant, under his hand and seal, to the sheriff of such county, requiring him to summon a jury of twelve disinterested freeholders of the county to appear at or near the lands to make an award of damages.” It is also provided by said charter that either party may appeal from the verdict of the jury to the circuit court of the county, where the cause shall be tried de novo upon its merits. It is admitted that no appeal was taken in this case. On the trial of the petition for mandamus a judgment was rendered in favor of the company, from which the landowner appeals. While agreeing with the appellant that her conveyance was clearly one on condition subsequent that the whole road should be constructed within two years from the date of the deed, and that it 'was not performed, and that she properly reentered for-breach of condition and was rightfully in possession of her original estate, and that the injunction issued by the United States court, by which her laud was wrested from her and put in
The record .of the condemnation proceedings nowhere shows that the jury impaneled by the sheriff was composed of “ disinterested freeholders,” and this is a fatal defect. Though the company occupy her premises as mere trespassers, against whom she may maintain ejectment or trespass, or invoke the aid of equity to restrain it from continuing trespassing, yet when she appeals to the remedy provided by its charter she must bring herself within its provisions by showing conformity with at least so much of its requirements as is essential to the jurisdiction thereby conferred. It is true an appeal is given from the verdict of the jury to the circuit court of the county, and that a failure to avail of that remedy may be construed as a waiver of all mere irregularities in the proceedings, but such failure does not cure a defect of jurisdiction, which is fatal to the whole record and entitles the opposite party to treat the proceedings as a nullity, even in a collateral suit. It is true that in this case the writ was invoked by the owner of the land seeking compensation and not by the company seeking ■condemnation, but we are unable to perceive why a different rule should prevail where the remedy is invoked by the landowner than that which would obtain if the company had put in operation the machinery provided by its charter. The remedy is summary in derogation of the common law, and is wholly covered by the statute. In such cases the material requisites of the statute must be complied with, and compliance must appear on the face of the record. Levee Commissioners v. Allen, 60 Miss. 93" court="Miss." date_filed="1882-10-15" href="https://app.midpage.ai/document/board-of-levee-commissioners-v-allen-7985760?utm_source=webapp" opinion_id="7985760">60 Miss. 93; People v. Brighton, 20 Mich. 57; Farrington v. Morgan, 20 Wend. 207" court="N.Y. Sup. Ct." date_filed="1838-10-15" href="https://app.midpage.ai/document/farrington-v-morgan-5515179?utm_source=webapp" opinion_id="5515179">20 Wend. 207 Nichols v. Bridgeport, 23 Conn. 189" court="Conn." date_filed="1854-06-15" href="https://app.midpage.ai/document/nichols-v-city-of-bridgeport-6576758?utm_source=webapp" opinion_id="6576758">23 Conn. 189 ; The King v. Commissioners, 7 East 71.
Affirmed.