Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-07-08
SUPREME COURT.
DECISION OF CASE FILED JESTER
DAY.

DECISION OF CASE FILED JESTER
Martha B,rtygen.an, appellant, as. j. +. True
and Lorenzo Hoyt, Respondents
OPINION.
The plaintiff claiming to be owner in posses
sion of certain land, brings this action against
defendants for unlawfully entering upon the
same, digging up the soil. &c.
The defense is that the alleged unlawful acts
were done under the authority of the proper
town supervisors in and about the working of
a highway which had been duly and legally
laid out and directed to be opened and worked
at the locus in quo.
The proceedings for laying out the highway
were had in 1870, under the provisions of sec
lions 80 to 43, inclusive of chapter ID, general
statutes, as amended by sec. 4 chap. 30, laws
OF 1867, and section 2, chap 48, laws 1868. By
section 80, the town supervisors are authorized
to assess the damages occasioned to any land
owner by the laying out or opening of road
In case the amount of such damages is not
agreed upon. The statute does not require
any notice of the assessment to be given to the
land owner, so that he can be heard upon it.
Section 80 provides that any person, owner of.
or agent for any land over which highway is
laid out feeling himself aggrieved
supervisors, may appeal from the
same to three county commissioners
Section Al, ~. and 43 provide that the commits
| s1oners to whom an appeal is taken shall fix
upon time of meeting to consider the same
| at q convenient place at near the road to be
examined. that notice of such time and place
| shall be served by the person making the a,
peal upon the supervisors and upon three O:
the petitioners, for the road; that the three
commissioners shall meet at the time and place
IafO N and Ill
the parties; that they shall have power to issue
process to compel the attendance of witnesses;
that their decision shall embrace the whole
| matter IN controversy that they shall first con-
slider the propfiety and expediency of locating
the road, and secondly the subject
of damages in the appeal and
they shall fix on the amount of damages which
| in their judgment is right and just to be paid
to each person claiming damages. 1t is claimed
that the provisions of section IS, are unconsti-
tutlonal because the supervisors represent the
| town which is the party treating for the right
of way and they are therefore not properly
impartial tribunal. In support of this position
Langford VS.. Commissioners of Ramsey county
! l6 Mimi, S75, is relied on. That was case In
which certain persons were by an act of the leg
| lslature appointed commissioners for the spe-
clal purpose OF laying out certain,road and as
certaining and determining the compensation
proper to be made for the damages thereby oc-
casioned and their decision was final.
The court after having laid down the PROPOSE
ton that the owner of land taken for public use
has right to require that impartial tribu-
nal be provided for the determination of the
| question of compensation before which both
| parties may meet and discuss their claims
| equal terms, proceed to say with regard to TIE
case before it that 1.-THE commissioners to de-
| termine the compensation are private citizens
| appointed directly by the legislature without
the consent of the person whose land is taken
for the public no notice of the proceedings be-
fore the commissioners is given, the land owner
| Is not authorized to appear at any stage OF the
proceedings and the proceedings are entirely
| e1 Parte. 1t was accordingly held that the
mode provided by the act referred to for deter
mining the compensation due to a person for
the taking of his property was in contravention
of the constitution. It will be obvious upon a
little reflection that the Langford case is by no
means parallel to that at bar. In the latter as
respects the tribunals appointed to act in the
premises the supervisors and commissioners
are not only standing public officers a part of
whose regular and usual official duty it is to
act in matters of this kind, and who are chosen
by popular vote with reference to this duty as
Judicial officers are chosen for judicial duty,
but the commissioners to whom an appeai
Is given are not town officers and do not
represent the town or act for it, although the
| right of person whose land is taken to be
heard upon the question of damages, does not
appear to be secured before the supervisors by
any provision for notice of a time and place of
hearing upon that ques ton, it is expressly pro-
vided that upon an appeal such person may be
fully heard both as respects the propriety of
laying out the road and the damages, at a time
and place of which he has notice. These pro-
visions of statute differ essentially from those
of the act considered in the Langford case. and
when person whose land is appropriated
avails himself Gas the plaintiff did in this in
stance) of these provisions of statutes, he has
IN contemplation Of law found the i'm
partial tribunal and had the opportuni-
ty to be heard to which he is entitled
The plaintiffs point that he was entitled to a
jury trial is disposed of by Ames VS.. the Lake
superior railroad company, 81 Mimi, 241.
where it is in effect held that the constitution
does not secure right of trial by jury in pro
oee s to take private property for public
use under the eminent domain The plaintiffs
counsel claims that prior to the adoption OF
our State constitution Alright of trial by Jury
IN cases of this kind was given by sections Ii
to 10 OF chapter 62, laws 1857, ex-session, and
that this right is preserved by section 4, of the
Dill OF rights. reference to those sections
will hardly show that they confer ANYTHING
which can properly be called right of trial by
jury since that implies trial conducted under
the direction of some court and verdict upon
which Judgment is rendered, and besides Whal-
len VS.. Bancroft, Mimi, 100, determines that
such right of trial by jury even if it can be sc
called is not preserved by the provision cited
from the bill of rights-since that provision
has reference only to eases at law This de
termination is followed in Ames VS. the Sune.
rlor DC. railroad Co., supra. The defendants
upon the trial offered in evidence an order OF
the supervisors laying out the road in question
and also an order of two county commissioners
determining that the same should be located
IN accordance with the order of the supervisors
also passing upon and determining the question
of damages.
The evidence thus offered was
objected to solely on the ground
that the law under which the
proceedings detailed in the orders was had. was
| unconstitutional.
What we have before said disposes of this OBJ.
lection. BY thus specifying his ground of OBJ
lection the plaintiff raised all other grounds OF
objection to the evidence, thus in effect admit
ting that the evidence offered was in other re-
spects competent and admissible. These con.
siderations dispose of several of the points here
named by the plaintiff. The objections which
he made as to the sutficiency of the evidence
furnished by the orders to show Jurisdiction in
the commissioners is disposed of by the recitals
found in the order made by them. which are in
collateral proceeding like this action sssuf-
hclent pfinaaa Jdcia evidence of the existence
OF the jurisdictional facts recited. Cassidy VS..
Smith, IS MINI. IA. ~
Order denying new trial affirmed. BERRY. J.
Slim Chances for Washbu,n,s Election.
Rochester Post.
DIR. Stewart, of st. Paul, the present rep
resentatlve, is candidate for reelection,
In11 l~z1s