Fowle v. New Haven etc. R. R. Co. 107 Mass. 352; Cooner v. Randall 59 Ill. 317; Dickson v. Chicago etc. R. R. Co. 71 Mo. 575; Central Branch Union etc. R. R. Co. v. Twine, 23 Kan. 585; 33 Am. Rep. 203.

5 Plate v. New York Central R. R. Co. 37 N. Y. 472; Mahon v. New York Central R. R. Co. 24 N. Y. 658; Bird v. Wilmington etc. R. R. Co. 8 Rich. Eq. 46; 64 Am. Dec. 739; Anderson etc. R. R. Co. v. Kernodle, 54 Ind. 314; Bare v. Hofman R. R. Cɔ. 79 Pa. St. 71; 21 Am. Rep. 42; Hetfield v. Central R. R. Co. 34 N. J. 251; Carl v. Sheboygan etc. R. R. Co. 46 Wis. 325; Cain v. Chicago etc. R. R. Co. 54 Iowa, 225; Dickson v. Chicago etc. R. R. Co. 71 Mo. 575.

6 State v. Baker, 2) Fla. 616.

7 Blodgett v. Utica etc. R. R. Co. 64 Barb. 580; McClinton v. Pittsburgh etc. R. R. Co. 66 Pa. St. 404; Missouri etc. R. R. Co. v. Ward, 10 Kan. 352; Selma etc. R. R. Co. v. Keith, 53 Ga. 178; Praetz v. St. Paul R. R. Co. 17 Minn. 163. Cf. Harrington v. St. Paul etc. R. R. Co. 17 Minn. 215; Pierce v. Worcester etc. R. R. Co. 105 Mass. 199; Central R. R. Co. v. Hetfield, 29 N. J. 206.

8 Toledo etc. R. R. Co. v. Dunlap, 47 Mich. 456.

9 Blodgett v. Utica R. R. Co. 64 Barb. 580; Harsh v. St. Paul R. R. Co. 17 Minn. 433; Oregon R. R. Co. v. Barlow, 3 Or. 311; Chicago etc. R. R. Co. v. Davis, 86 Ill. 20; Leber v. Minneapolis etc. R. R. Co. 29 Minn. 256.

CHAPTER XXXII.

THE PROCEDURE IN CONDEMNATION.

§ 832. Introductory.

§ 833. The New York statute.

Of the corporate existence of the plaintiff, and of its authority to condemn.

§ 836.

§ 837

§ 838.

§ 839.

Evidence.

Of the ownership of the defendant.

Description of the land taken.

§ 840. Admissibility of opinions of witnesses.

§ 841. Admissibility of evidence as to sales of lands in the vicinity.

§ 846. Of the discontinuance of proceedings.

§ 847. The same subject, continued-When the rights of the parties become vested.

§ 848.

Of the owner's remedies-(a). Under the statute.

§ 849. (b). By injunction.

§ 850. (c). In ejectment.

§ 851. (d). In trespass.
§ 852. Laches-Limitations.

832. Introductory.-Proceedings to condemn private property for public use are ordinarily inst tuted by an application in writing to the officer or tribunal whose jurisdiction is to be invoked. The form of the application being necessarily dependent upon the statutes of the several States, it would be useless to look for any general principle under

lying the subject.' It may be stated, however, as a general rule, that all the conditions precedent to the exercise of the power must be performed, and all the steps required by the statute must be taken.' But a substantial compliance therewith is sufficient. When the application is made to a court an I the damages are assessed by an ordinary jury, the jurors are usually selected from the regular panel in the same manner as in other jury trials. But where the damages are to be assessed by a special jury or by commissioners, their selection is regulated by the general statute or the charter of the company. The constitutional right of the land-owner to a trial by jury is not lost by the failure of the legislature to prescribe the manner in which it shall be exercised. The right of a railroad company to have the damages for appropriating land appraised in a special manner, does not constitute a franchise, but operates merely as a personal privilege which it has no authority to transfer. Proceedings for condemnation must be brought in the county in which the land is located.' Where the court is required to fix a "place of meeting" at which the commissioners, appointed to assess the damages to lands taken by a railroad, shall hold their first meeting, it is not sufficient to appoint a certain village, the limits of which embrace two square miles of territory.

1 Lewis on Eminent Domain, § 342.

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2 Adams v. Saratoga etc. R. R. Co. 10 N. Y. 328; O'Hara v. Pennsyl vania 1. R. Co. 15 Pa. Et. 445; Wilson v. Lynn, 119 Mass. 117; Pennsylvania R. R.Co. v. Forter, 29 Pa. St. 1.5; Elaisdell v. Winthrop, 1.8 Mass. 133; Wii m v. Wimington ctc. R. R. Co. 2 Harr. (Del.), 514; 33 Am. Dec. 411; Wite v. Nashville etc. R. R. Co. 7 Heisk. (Tenn.) 5'8; Lund v. New Bedod, 11 Miss. 256; Wamesit Power Co. v. Allen, 120 Mass. 352; City of Euffalo, in re Leroy v. Framingham etc. R. R. Co. 119 Mass. 310; Levering v. Philadelphia ctc. R. R. Co. 8 Watts & S. 458.

3 Indianapolis etc. R. R. Co. v. Christian, 93 Ind. 360; Shields v. Mo

V.

Mahan, 101 Ind. 591; Heick v. Voight, 110 Ind. 279; McCallister Shuey, 24 Iowa. 362; State v. Pitman, 38 Iowa, 252; Stevers v. Board of Supervisors, 41 Iowa, 341; Townsend v. Chicago & Aiton R. R. Co. 1 Ill. 515; Byron v. Blount, 97 111. 62; Raymond v. County Comm'rs, 63 Me. 112; In re Grove St. 61 Cal. 438.

4 See Lewis on Eminent Domain, § 400 et seg.

5 Kansas City etc. R. R. Co. v. Story, 96 Mo. 611, where it was also held that in proceedings to condemn land for railway purposes, the right of trial by jury as to the amount of compensation, guarantied by the constitution (Mo. Const. art. xii, § 4), is not waived by the appearance of the owner before the judge in vacation pursuant to notice, and the appointment of commissioners at his request; and that a demand for a jury, after their report is filed and he has excepted thereto, is in time.

6 Little Rock & F. S. R'y Co. v. McGehee, 41 Ark. 2.2

7 Missouri Pacific R'y Co. v. Carter, 85 Mo. 448.

8 Minneapolis & S. L. R'y Co. v. Kaune, 32 Minn. 174.

§ 833. The New York statute.-The New York statute may be given as an example of the legislation on this subject, and of the steps which the railway company must take to acquire its right of way. The General Railroad Act of 1850, in that State, provides that "for the purpose of acquiring such title, the said company may present a petition praying for the appointment of commissioners of appraisal to the supreme court, at any general or special term thereof held in the district in which the real estate described in the petition is situated. Such petition shall be signed and verified according to the rules and practice of such court. It must contain a description of the real estate which the company seeks to acquire, and it must, in effect, state that the company is duly incorporated, and that it is the intention of the company, in good faith, to construct and finish a railroad from and to the places named for that purpose in its articles of association; that the whole capital stock of the company has been in good faith subscribed as required by the act; that the company has surveyed the line or route of its proposed road and made a

map or survey thereof, by which such route or line is designated, and that they have located their said road according to such survey, and filed certificates of such location, signed by a majority of the directors of the company, in the clerk's office of the several counties through or into which the said route is to be constructed; that the land described in the petition is required for the purpose of constructing or operating the proposed road, and that the company has not been able to acquire t tle thereto, and the reason of such inability. The petition must also state the name and places of residence of the parties, so far as the same can, by reasonable diligence, be ascertained, who own or have, or claim to own or have, estates or interests in the said real estate, and if any such persons are infants, their ages, as near as may be, must be stated; and if any of such persons are idiots, or persons of unsound minds, or are unknown, the fact must be stated, together with such other allegations and statements of liens or incumbrances on said real estate as the company may see fit to make. A copy of such petition, with a notice of the time and place the same will be presented to the supreme court, must be served on all persons whose interests are to be affected by the proceedings, at least ten days prior to the presentation of the same to the said court.' The statute further provides the manner of serving notice upon residents and non-residents, when their residence is known and when unknown, and the manner of serving upon infants and idiots. In other cases not provided for, notice and other papers in the special proceedings may be served as the supreme court shall direct.

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