#### *Winchester and Potomac Railroad Company v. Washington.

May, 1842,

Richmond.

(Absent Allen* and Baldwin,† J.)

Debt—Railroad Company—Condemned Land — Assess» ment of Damages.‡—Under the act passed April 8, 1831, to incorporate the Winchester and Potomac railroad company, the freeholders appointed by an order of the county court for the purpose of ascertaining the damages which would be sustained by the proprietor of certain lands through which the railroad was tobe opened, certified, in the form prescribed by the act, that they assessed the damages at the sum of 972 dollars; and then subjoined the following words: “We further declare that if the railroad company shall refuse to pass the water from the south side of the road to the north side, by a culvert west of the lane, the thoroughfare of the farm, and return the same by a culvert on the east side of the lane, she (the proprietor) shall receive the additional sum of 2000 dollars.” The report, upon being returned to the county court, was ordered to be recorded. An action of debt was afterwards brought to recover the 2000 dollars; the declaration averring that the company, although requested so to do. had refused to pass the water as aforesaid. Upon demurrer to the declaration, Held, the action cannot be maintained. *Per*Stanaud, Jm the charter of the company does not warrant a contingent assessment of damages by the commissioners, and does not authorize the county court to render a conditional judgment therefor: the court is authorized to render such judgment only as would authorize the clerk to issue an execution thereon.

In an action of debt in the circuit court of Jefferson, in the name of Louisa Washington, who sues for the use of herself and children, against the Winchester and Potomac railroad company, for 2000 dollars, the declaration contained three counts.

The first count was in these words :

“Ror that whereas, by an act of general assembly of Virginia passed on the 8th day of April 1831, *entitled ‘an act to incorporate the Winchester and Potomac railroad company,’ among other things it is provided and enacted, in substance, as follows:” [Here the 9th, 10th and 11th sections of the company’s charter were set forth verbatim as in the session acts of 1830-31, ch. 122, § 9, 10, 11, p. 189-91.] “And whereas, in pursuance of said act, George Reynolds, Henry S. Turner, Rdward Lucus *62senior, William Hurst and Joseph M’Murran, freeholders, or any three of them, were appointed, on the motion of the said Winchester and Potomac railroad company, by an order of the county court of Jefferson county in the state of Virginia, for the purpose of ascertaining the damages which would be sustained.by said Louisa Washington and her children, as the proprietors of certain lands in the said county through which the Winchester and Potomac railroad company proposed to open a railroad ; and George Reynolds, Edward Lucas, William Hurst and Joseph M’Murran, four of the said freeholders, having been first duly sworn, as required by the said act, impartially and justly to the best of their ability to ascertain the damages which would be sustained by said Louisa Washington and children from opening of said railroad through their land, and that they would certify their proceedings thereupon to the county court for the said county of Jefferson, did, on the 19th day of November 1833, under their hands and seals, certify and report to the said county court of Jefferson county aforesaid, that they had met together on the aforesaid land on the 1st day of November 1833, the day to which they were regularly adjourned from the day appointed by the said order for their meeting, and having been duly sworn, and having viewed the premises, they proceeded to estimate the quantity and quality of the land aforesaid which would be occupied by the said railroad, the quantity of additional fencing or gates which would probably be occasioned thereby, and all other inconveniences which seemed to them *likely to result therefrom to said land; that they combined with these considerations, as far as they could, a just regard to the advantages which would be derived by the proprietor of the said land from the opening of the said railroad through the same ; that under the influence of these considerations, they had estimated and did thereby assess the damages aforesaid at the sum of 972 dollars, and did further declare that if the said railroad company should refuse to pass the water from the south side of the road to the north side of the road, by a culvert west of the lane, the thoroughfare of the farm, and return the same by a culvert on the east side of the same, she the said Louisa Washington should receive the additional sum of 2000 dollars : which said report, together with the certificate of magistrate before whom the said freeholders were sworn, having forthwith been returned to the county court of Jefferson, and no good cause having been shewn against the said report, the same was, on the 20th of November 1833, affirmed by said court, and entered of record; as by the record and proceedings thereof, still remaining in said county court of Jefferson county, Virginia, more fully appears. And the said plaintiff avers, that on the 19th day of July 1835, she demanded and required of the president of the said Winchester and Potomac railroad company, that the said Winchester apd Potomac railroad company should pass the water from the south side of the road •to the north side, by a culvert west of the lane, the thoroughfare of the farm, and return the same by a culvert on the east side of the lane. Yet the said Winchester and Potomac railroad company, although then and often since requested so to do, have refused and still do refuse to pass the water from the south side of the road to the north side, by a culvert west of the lane, the thoroughfare of the farm, and return the same by a culvert on the east side of the same, nor have they paid to the said Louisa Washington (proprietor of the said land referred to in said proceedings, and, *under the terms of the aforesaid act, entitled to the said damages) the aforesaid sum of 2000 dollars, according to the form and effect of the said report, and the judgment of the court aforesaid affirming the same, which still remains in full force and effect, and is in nowise satisfied, vacated or discharged; and the said Louisa Washington hath not as yet obtained execution for the same 2000 dollars. Whereby an action hath accrued to the said Louisa Washington to have and receive from the said Winchester and Potomac railroad company the said sum of 2000 dollars.”

The second count was exactly like the first, with the exception of this difference in the breach : In averring nonpayment to mrs. Washington of the 2000 dollars, it omitted the allegation that she was “proprietor of the said lands referred to in said proceedings, and, under the terms of the aforesaid act, entitled to the said damages.”

The third count omitted the recital of the provisions of the charter, and differed from the two other counts, moreover, in alleging in general terms what is alleged in those two counts in detail.

The company filed general demurrers, in which the plaintiff joined. Upon argument, the circuit court sustained the demurrer to the third count, but overruled the demurrers to the first and second counts. A trial was then had upon plea of nil debet.

Upon the trial, the plaintiff offered in evidence the record of the county court of Jefferson, whereby it appeared, that on the 1st day of October 1833, the president of the company addressed to “mrs. Louisa Washington widow of Samuel W. Washington deceased, for herself and children,” a notice in writing, informing her that on the 21st of that month, application would be made by the company to the county court of Jefferson, in pursuance of the provisions of the charter, to appoint five freeholders to assess the damages which *“you will sustain from the opening of a way for the said railroad through your landthat at a court held for Jefferson county, on the 21st of October 1833, “ on the motion of the plaintiffs, suggesting that the defendants are the owners of a tract of land in the county of Jefferson, through which it is proposed to open the said railroad, and that they cannot agree with the said owners,” an order was made appointing the freeholders ; that George Reynolds, Edward Lucas, William Hurst and Joseph M’Murran, four of the freeholders appointed, were sworn or affirmed in the *63manner prescribed by the charter, to “ascertain the damages which would be sustained by the above named Louisa Washington and children that on the 19th day of November 1833, the said freeholders made a report under their hands and seals, whereby, after setting forth that they were appointed “for the purpose of ascertaining the damages which would be sustained by Louisa Washington and children, the proprietors of certain lands in the said county through which the Winchester and Potomac railroad company proposed to open a railroad,” and that they met together on the land aforesaid on the first day of November 1833, they certified, in the form prescribed by the charter, that they assessed the damages at the sum of 972 dollars; at the end of which report, after the words “ Given under our hands and seals this 19th day of November 1833,” and before the signatures and scrolls, were these words : “And we further declare that if the railroad company shall refuse to pass the water from the south side of the road to the north side, by a culvert west of the lane, the thoroughfare of the farm, and return the same by a culvert on the east side of the lane, she shall receive the additional sum of 2000 dollars;” and that at a court held for Jefferson county on the 20th of November 1833, the following order was entered: “George Reynolds, Pdward Lucas, William Hurst and Joseph M’Murran, four of the five commissioners *appointed at the last term of this court for the purpose of ascertaining the damages which would be sustained by Louisa Washington and her children, the proprietors of certain land in this count}' through which the Winchester and Potomac railroad company propose to open a railroad, this day returned a report, which is ordered to be recorded, and is in the words and figures following :” [here it was copied]. To this evidence the defendants objected, because it did not shew that the report of the freeholders had been affirmed by the court; but the objection was overruled by the court, and the evidence allowed to go to the jury. To which the defendants excepted.

A second bill of exceptions stated, that on the trial, the defendants introduced a witness to prove the actual amount of damages sustained by the plaintiff, by reason of the alleged failure on the part of the defendant to pass the water, mentioned in the report of the commissioners and the declaration, from the south side of the road to the north side, by a culvert west of the lane, the thoroughfare of the farm, and to return the same by a culvert on the east side of the lane, as in the declaration averred; that the plaintiff objected to the evidence, and moved the court to exclude the same ; and that the court sustained the objection, and excluded the evidence from the jury : to which the defendants excepted.

The jury found for the plaintiff on the issue, and allowed interest on the debt from the 8th of August 1835 ; and judgment was rendered accordingly for the debt and interest, with costs. To which judgment a supersedeas was awarded.

Leigh, for plaintiffs in error.

I. The demurrers to the first two counts of the declaration ought to have been sustained. 1st. According to the shewing of those counts, truly understood, the conditional damages claimed as having been assessed by the commissioner, and adjudged *by the county court, were assessed and adjudged to mrs. Washington and her children, as proprietors of the land condemned for the road, and she alone cannot maintain the action for the use of herself and children. Or, 2dly, if the conditional damages assessed for the lands of mrs. Washington and her children are to be considered as assessed to her alone, such assessment of damages was plainly contrary, to the provisions of the charter of the company, and to the order of the county court, under which the commissioners acted. And 3dly, the assessment of such conditional damages is wholly unauthorized by the company’s charter, and no judgment could be given by the county court upon the report for such conditional damages. The 12th section of the charter, which provides that for the damages, when ascertained by a confirmation of the report, the clerk of the court shall, after the adjournment of the court, on the application of the party entitled to the damages, issue an execution, manifestly contemplates the case of an unconditional assessment of damages. At all events the action of debt will not lie in such a case.

II. The declaration avers that the report, on which the action was founded, was affirmed and entered’of record, and counts on the affirmance of the report as on a judgment ; but the record produced in evidence does not shew that the county court affirmed the report, but that the report was returned and ordered to be recorded; so that here the record produced in evidence shews that there was in fact no manner of judgment for the conditional damages, besides being liable to the objection that it is variant from the record pleaded. 1 Chitty’s PI. 305, 6, 355, 6. Moore v. Penwick, Gilm. 214. Crawford & al. v. Jarrett’s adm’r, 2 Leigh 630. Wood v. The Commonwealth, 4 Rand. 329.

III. If it be true that there was no judgment given by the county court for the conditional damages, or at *least no judgment for those damages to mrs. Washington alone, then she could not recover the whole amount of damages assessed by the commissioners, but could only, in a proper form of action, recover, pro interesse suo, the actual damages which could be proved to have been sustained by her ; and therefore the evidence on that point, offered by the company, ought not to have been excluded.

Robinson, for defendant in error.

I. The demurrers to the first and second counts, were properly overruled. 1st, According to the shewing of those counts, the conditional damages were assessed and adjudged to mrs. Washington alone. 2ndly, Such assessment is not contrary to the charter. Por that in terms declares that the commissioners “shall *64consider the proprietor oí the land as being the owner of the whole fee simple interest.” And the first count states her to be proprietor of the land, and, under the terms of the act, entitled to the damages. But, independently of this averment, the report shewing that the damages were assessed to her, and both counts averring that the report was affirmed by the court and entered of record, this court, when the question comes before it in this collateral manner, is bound to suppose that such a state of facts existed as authorized the assessment, if, under any state of facts, such assessment could be authorized. Now, if she appear to the commissioners to be the proprietor of the land, they might make the assessment of damages to her, although they were sworn to ascertain the damages sustained by Louisa Washington and her children. The objection that in consequence of the order and of their oath, they could not properly assess damages to Louisa Washington alone, is an objection at most going only to shew irreg ularity, which might have been corrected upon appeal or supersedeas ; not matter which makes

*the proceedings before the commissioners and in court, void. 3dly, The commissioners have estimated the whole damages at 2972 dollars, and if they had made the assessment in one entire sum, there could be no doubt of their authority. Now, whether the assessment is made in one entire sum of 2972 dollars, or in one sum of 2000 dollars and another of 972 dollars, can make no manner of difference. Nor can the company with any reason object, that a clause is inserted allowing it to be relieved from part of the estimated damages upon the performance of a specific act, and that the assessment thus made is affirmed and entered of record. If the assessment for the whole amount had been absolute and unqualified, it might have been affirmed and entered of record. And the county court, in affirming a report which permits the company, if it pleases, to be relieved from part of the estimated damages upon the performance of a specific act, does that which operates in favour of the company, and of which the company should not afterwards be permitted to complain. It may be, that' such conditional damages as were assessed in this case, cannot, even after the report is affirmed and entered of record, be considered to be so ascertained by a confirmation of the report, as to authorize the clerk to issue an execution for the same under the 12th section of the charter. But though an execution may not lawfully issue for such conditional damages under that section, it does not follow that the assessment itself should be considered as unauthorized. It was made by commissioners appointed at the instance of the company, and the report containing it has been affirmed by a court which undoubtedly had competent jurisdiction to act upon that report. The company having been a party to the case in which the report was made, and the judgment affirming the report never having been reversed on appeal or supersedeas, that report ought now to be binding *on the company. If it is binding, and the specific act has not been performed, there is a duty on the defendants to pay the plaintiff a determinate sum of monej and the action of debt is properly brought for that money. Bullard v. Bell, 1 Mason 299.

II. The statute provides, that unless good cause be shewn against the report, it shall be affirmed by the court and entered of record. The order directing it to be entered of record is, under the statute, to follow the affirmance. And when such an order is made, it necessarily imports that the report is affirmed. But secondly, the evidence was clearly admissible and proper, as far as it went: and though it might have been competent to the defendants to move the court to instruct the jury, that the plaintiffs could not succeed without producing an order of affirmance, yet as no such motion was made, an appellate court can take cognizance of no such question.

III. The other bill of exceptions must be considered with reference to the case stated in the declaration. That states a regular assessment of damages, and a regular confirmation thereof : and considering that assessment as valid, its effect could not be impaired in a collateral proceeding, by evidence going to shew that the commissioners made too high an estimate. The time for such an objection was in the county court, before the report was affirmed.

*

He was a connection of tbe defendant in error.

†

Tbe cause was argued before bis appointment.

‡

Assessment of Damages.—Tbe principal case is cited in S. V. R. R. Go. v. Robinson, 82 Va. 545, to tbe point tbat if tbe case is proceeded in in tbe county court to final judgment, tbe amount of the damages fixed and paid and acquiesced in, paid on tbe one side and accepted without exception on tbe other, there is no authority in law for tbe circuit court to set aside these proceedings; or, without, setting them aside, proceed to appoint a new set of commissioners to assess other damages for tbe same land, upon tbe ground tbat tbe defendant company did not comply with its promise.

STANARD, J.

The title to this action, as for a debt due by judgment, is founded on those provisions of the charter of the company, which prescribe the manner of assessing damages to the proprietors of lands through which the railroad might run ; providing, in effect, that the affirmance of a report assessing the damages, and entering it of record, shall be a judgment in favour of the proprietor against the company for the amount of the damages : and it is contended that the order recording *the report is in effect an affirmance thereof, and a judgment for the damages. Supposing this to be so, the next question presented (and which may justly be regarded as preliminary to many others arising on the record in this case, and ably discussed at the bar,) is, What are the damages for which such judgment is or can be rendered ? Do the provisions of the charter warrant a contingent assessment of damages by the commissioners, and authorize the court to render a contingent or conditional judgment therefor, so that the title thereto may depend on some future act in pais ? If so, the anomaly might be presented of a judgment without certainty as to the time in which, or the amount for which, it could be enforced, and not capable of being enforced without a new action, the recovery in which would also be uncertain, as the performance of the act in pais on which it was made to depend might lie more or less perfect. The terms of the statute must be very distinct and imperative, to justify the court to introduce, by its construction thereof, such an anomaly. The statute in this case, so far from requiring such construction, seems to me by inevitable *65implication to fot id it. The latter part of the 12th section provides, that for the damages when ascertained by a confirmation of the report, the party i, ay have execution as on a judgment; and the necessary implication is, that the court is authorized to render such judgment only as would justify the emanation of an execution thereon. Now, for contingent damages such execution certainly could not issue, since by the very terms of such judgment, if full expression be given to it, the party is no1 entitled to damages but in a future and contingent event; and as such future event may more or less imperfectly occur, the damages may in whole, or in part only, be justly demandable. These considerations present an insuperable difficulty to the recovery in this action, and shew, in my opinion, that the court below ought to have sustained 'x’the demurrer to the first and second counts of the declaration.

I deem it proper to add, that according to the legal effect of the report in this case, especially when coupled with the subsequent action of the company, the damages that were effectively assessed, to wit, the 972 dollars, are to be regarded as the damages for a road constructed with proper culverts to pass the water in the manner specified in that part of the report assessing the contingent damages ; that the company had no right to construct the road in any other manner, and is liable to the actions of the parties injured by a deviation from that mode of construction which has governed the amount of the unconditional assessment of damages, for the injury resulting from such deviation ; and that such actions may be repeated toties quoties, as long as such injury is continued by such deviation.

The other judges concurring, the judgment of the court of appeals was entered as follows :

The court is of opinion that the said circuit superior court erred in overruling the demurrers of the plaintiffs here to the first and second counts in the defendant’s declaration : therefore judgment reversed with costs, and judgment entered for the said plaintiffs upon said demurrers.