Ohio River Railroad v. Harness , 1884 W. Va. LEXIS 76 ( 1884 )

Woods, Judge:

The couusel for the appellant insist that the judgment of the circuit court should be reversed. First, because the verdict of the jury did not describe the land to be taken with sufficient certainty, and secondly, the judgment rendered upon the verdict was for the whole amount thereof, when it ought only to have been rendered for the excess of the verdict over and above the amount of compensation ascertained by the report of the commissioners.

Section 5 of chapter 18 of the Acts of 1881 requires that the application to take real estate for the construction of a railroad, must not only be in writing but it must describe with reasonable certainty the real estate proposed to betaken, and by section 6 of that chapter, ten days, notice of such application shall be served on the owners, claimants or persons holding liens (on the land) and the notice may be given either before the application is presented or afterwards. These duties are imposed upon the applicant, which he must perform before the court can take jurisdiction of the matter. Failing in this, he can have no standing in court. If the applicant fail to describe with sufficient certainty the land proposed to be taken, or neglect to give the notice required, the land-owner may successfully resist the application, but if he see proper to do so, he may waive these defects, and any uncertainty in the description of the land to be taken may be corrected by the commissioner’s report. But as the applicant may at any time before final judgment abandon his proceedings, whether they be right or wrong, it would seem that technical objections to his own proceedings merit but little consideration. But in the case under consideration the application and notice thereof served upon the land-owner, seems to have been prepared with unusual care, being in every respect in exact accordance with the provisions oí the statute made in regard thereto; and imno respect is this care more manifest than in the description of the strip of land to be taken. The beginning is fixed at the “point where the center line of said railroad as located crosses the boundary line of the lands of Solomon Harness and J. L. Harness, Ac.,” and from that point the courses and distances of the points of the line, the general direction, and the radii of the curves are all given, until the line passes over the boundary line of said land. It would seem to be impossible to describe the beginning and the ending, and the exact direction of a line with greater precision than is done in appellant’s application in this case. But the appellant was still more particular in describing the land to be taken, for he filed with his application, and made the same a part thereof, a plat of 'the land which it proposed to take, describing it in the same manner, and in addition to this, it further described the land to be taken as a strip sixty feet in width, thirty feet wide on each side of the “above described center-line, and contains 3 99-100 acres of land.” From this application and plat, which was a part thereof, made by the applicant’s engineers and servants, there could be no difficulty in finding and identifying the location and boundary of the strip of land proposed to be taken. It was not only described with the reasonable certainty required by the statute, but with the greatest possible degree of certainty. There can bo no question such a degree of certainty would be sufficient in any deed conveying said land or in any verdict in action of ejectment recovering the same. The verdict of the jury in this case ascertained that nine hundred and ninety-nine dollars was a just compensation for so much of the real estate of Solomon Harness, “mentioned and described in the within application,” as is proposed to be taken, &c., “ as well as for the damages to the residue of said real estate,” &c. This verdict could not have rendered the description of the land proposed to be taken more certain, if it had transcribed into the body of it, the exact description found in the application and the plat filed with and made a part of it, for that is certain which may be rendered certain. Allen v. Gibson, 4 Rand. 468; 2 Lom. Dig. 210-212. We are therefore of opinion, the land proposed to be taken was described with sufficient certainty in the verdict, and that the court did not err in overruling the applicant’s motions in arrest of judgment, and to set aside the verdict and award it a new trial.

But the appellant insists that the circuit court erred in entering up a judgment for the whole amount of the verdict instead of a judgment only for the excess of the verdict over and above the amount ascertained by the report of the commissioners. It will be seen that the commissioners ascertained that the sum of two hundred and twenty-five dollars was a just compensation to the said Solomon Harness for the land proposed to be taken and for his damages to the residue of his real estate, and this sum with its interest was paid into court on the 21st day of March, 1888. That sum remains under the control of the court, subject to the control of the land-owner, unless otherwise disposed of by the court according to section 23 of the said act of the Legislature. By section 21 of the said act it is provided that “when after such payment into court as is mentioned in the preceding section, a subsequent report is made which is confirmed and oi'dered to be recorded, or the verdict of a jury is found, if the sum ascertained by such subsequent report or verdict, exceed what was so paid, and the applicant fail to pay the same, judgment shall be given against him for the amount of such excess, with legal interest thereon from the date of such subsequent report or verdict, until payment.” By section 24 the land-holder shall, in such a case recover .his costs, It is apparent from the reading of the statute that the circuit court erred in entering judgment against the appellant for the sum of nine hundred and ninety-nine dollars, the amount of said verdict, when the statute required that the judgment should have been rendered for seven hundred and seventy-four dollars, the excess found by the verdict over the sum of two hundred and twenty-five dollars ascertained by said commissioners with interest thereon from the date of the verdict and the costs. But as this is an error which appears upon the record by the verdict, the report of the commissioners, and by said order paying into court the said sum of two hundred and twenty-five dollars, ascertained by said commissioners, and might therefore have been safely amended in the manner prescribed in section 5 of chapter 134 of the Code, and as no effort was made to so amend it, the same, under the provisions of section 6 of said chapter can now be amended in this Court. Connor v. Fleshman, 4 W. Va. 693; Hawker v. B. & O. R. R. Co., 15 W. Va. 628; Stansbury v. Stansbury’s Adm’r, 20 W. Va. 23; Richardson’s Ex’r v. Jones, 12 Gratt. 53; Stringer v. Anderson, 23 W. Va. 482.

We are therefore of opinion and consider that the said judgment of the circuit court rendered in this cause on the 14th day of June, 1883, be, and the same is. so amended, that the said Solomon Harness recover of the Ohio River Railroad Company the sum of seven hundred and seventy-four dollars, with interest thereon from the 14th day of June, 1883, together with his costs by him about his defence in this behalf in said circuit court expended, and that the said judgment so amended,, be and the same is hereby affirmed, with costs to the appellee, the party substantially prevailing, and damages according to law.

Amended and Affirmed.