Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-04-15

provided for determining what shall be
a Just compensation. In the absence
of any constitutional limitation to the
! contrary the legislature may prescribe
! the terms. conditions and methods by
| which the compensation to be paid on
q taking Of private property for pub
| lie use should be ascertained. The
proceedings are in the nature Of an in
quisition on the part Of the State, and
1 are necessarily under its control. The
/ State must provide for an assessment
| Of damages by an impartial tribunal
and it may be a jury, or commission,
or appraisers, or court without a jury.
| Mills on Eminent Domain, Secs. S4-S5.
As stated in Lewis on Eminent Do
main. Sec 313, THE Legislature NAV
| provide such mode as it sees fit for as
| certaininG the compensation, provided
| that the tribunal is an impartial one
! and that the parties have an opportu-
nifty to be heard" The law as above
stated is fully supported by an array
of authorities cited by the learned au-
! thors above named and may be re-
gardcd rs elementary.
The defense in the case at bar in
| sists that section 20, Art. Of the Con
stitution Of this State which provides
that, In an civil suits, and in all con-
troNersies concerning property, the
parties shall have 2 right to a trial by
jury except in cases where it has here
tOfore been otherwise practiced" inn
poses an additional limitation upon
the exercise of the power of eminent
domain TO the effect that the citizens
whose property is taken by virtue of
that power, has the right to have his
just compensation determined in trial
by jury. The question involved is
whether the section last above quoted
applies in cases Of private property
taken for public uses.
This precise question has never been
decided by this court, nor, so far as we
IRE aware, has it ever been directly in
issue i'll any proceedings before the
court. In few instances the opinions
Of the court have adverted to the
question, but in neither of those cases
has there been a decision or any neces-
sity for a decision upon the ques-
ton, and the views Of the learned JUS
tees who drew the opinions do not
conform with each other, but are in
conflict.
The case of Day V. Stetson, Me-,
3G5 was an action on the case by the
proprietors of an ancient ferry against
the defendant, who had erected and |
maintained a ferry al the same place |
by virtue of a charter granted by act |
of Legislature. The act of incorpora- |
ton authorized the cOrporators to erect |
piers, WharVes, etc, as the Court of !
Sessions should adjudge convenient, |
making such compensation to the own
er Of the land or privileges SO occupied |
and improved as the Court of Sessions |
might assess. In the opinion of the |
court by Mr.. Justice Weston, referring |
to such provision for compensation, it |
is said, If this provision does not Sc |
cure 10 such owner his constitutional |
right of trial by jury, the statute would
afford no protection against suit at
law brought by him for the recovery
of damages. And if the plaintiffs as
owners of the land and privilege so
taken and occupied by the defendant,
had brought their action for damages,
we do not decide that ii might not have
been nlaintained.' This does not APP
pear to be even a dictum upon the
question here involved, but rather a
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