
    The Little Miami Railroad Company v. John Perrin. The Same v. Jacob Kershner.
    Where land has been entered upon by the company, valued under a judge’s warrant, and an appeal from the valuation has been taken and earned to the common pleas, it is error in that court to order the warrant and pro- . ceedings under it to be quashed.
    Though the warrant contain no statement of an attempt to purchase the land of the owner; of his disability in law to contract; or of his absence from the country; or that the.land appropriated is indispensable for the construction of the road, the common pleas has jurisdiction of the case by appeal.
    *This is a writ of certiorari directed to the court of common pleas of Clark county.
    The object of the writ is to review the proceedings of that court, in a matter originating under section 11 of the act incorporating the Little Miami Railroad Company. That section is as follows :
    “The corporation is hereby empowered to purchase, receive,- and hold such real estate as may be necessary and convenient in accomplishing the object for which the corporation is granted; and may, by their agents, engineers, and surveyors, enter upon such route, place, or places selected as aforesaid by their directors, ■as the line whereon to construct the said railroad, and it shall be lawful for the said corporation to enter upon, and take possession of and use all such lands and real estate as may be indispensable for the construction and maintenance of said railroad, and the accommodations requisite to and appertaining unto them; and may also receive, hold, and take all such voluntary grants and donations of land and real estate as may be made to said corporation to aid in the construction, maintenance, or accommodation of said road or ways; but all lands or real estate thus entered upon and used by said corporation, and all earth, timber, gravel, and other materials, needed by said company, shall be purchased of the •owners thereof, at a price to be mutually agreed upon between them; and in case of disagreement of the owner as to the price of .any lands or materials so required for said road, or if the owners are under any disability in law to contract, or are absent from the ■country, application may be made either by said owners, or by said corporation, to any judge of tho court of common pleas, within which said lands or materials may bo, specifying the lands or materials so required or already appropriated, and thereupon said judge shall issue his warrant in writing, directed to the sheriff of the county, requiring him to summon an inquest of three freeholders of the county, who shall not be stockholders *nor interested therein, to appear at, or near said land or materials to be valued, on a day named in said warrant, not less than five nor more than ten days after issuing the same; and if any of the persons do not attend, the said sheriff shall forthwith summon as many as may be necessary to fill said inquest, and the persons so impaneled shall, on their oaths or affirmations, value the damages which the several owners will sustain by the use or occupation of the lands or materials, or property required by said company, having due regard to the benefit such owners may derive from the location and structure of said road, and said inquest shall reduce their valuation to writing, and such valuation when paid or tendered to said owners, or deposited in any bank to their credit, or their proper repi’csentatives, shall entitle said company to the materials, use, and occupation of said land for the purposes of said road, and all estate and interest therein, as fully as if it had been conveyed by the owners of the same; and every sheriff and freeholder so acting shall receive one dollar per day for his services to be paid by said company; either party may within ten days after such valuation is made, appeal from the same to the court of common pleas of the proper county, by giving notice thereof to the opposite party, or by filing in the clerk’s office, a copy of such valuation, with notice thereto annexed; and said court may for good cause shown, order a new valuation, and on final hearing the court shall award costs according to equity.”
    On June 25, 1846, one of the associate judges of the court of common pleas of Clark county, under the authority given in this section, issued his warrant to the sheriff of the county, requiring him to summon three freeholders to appear on the 1st day of July following, to make the valuation as provided for in that section; that is, the damages which tho several owners named, would sustain by the occupation of said land by the company. The freeholders met at the time appointed, and upon the different promises, and made the several valuations. On the 7th day of the same month of July, the warrant was filed in the office of *the dork of the common pleas, and with it the return of the sheriff, and also of the freeholders, all these proceedings, including the .several valuations in writing, were indorsed on the warrant. On the same day two of the persons whose damages had been valued, to wit, Perrin and Kershner, filed notices of appeal in the clerk’s office, and on the 24th of September of the same year, Perrin and Kershner filed, in said court of common pleas, each a separate mation to quash the warrant and other proceedings in the cause.
    Perrin to quash the same, so far as they affected his property, for the reasons following: 1. That it did not appear in the writ or other proceedings, that the land was indispensable for the construction and maintenance of the road. 2. It did not appear in the writ or other proceedings, that the company had, prior to the date of the writ, made any attempt to purchase the land by agreement with Perrin; nor that Perrin was under any disability in law to contract, nor absent from the country.
    He also moved to quash the valuation for other causes, which, as they did not appear in proof or upon the papers, are not here noticed.
    The causes assigned for quashing the warrant and proceedings .in the ease of Kershner are the same as in the case of Perrin, together with this additional cause, to wit, that the inquest did nob value the damages in money, but for part of them awarded that the company should make a way across the road upon Kershner’s promises.
    At a subsequent term of the court, on February 23, 1847, the aforesaid motion to quash was allowed in each case, and the suit ,and proceedings, so far as they affected the property of Perrin ' and Kershner, were ordered to be quashed; whereupon the company took a bill of exceptions, in which the proceedings are set •out at length.
    Charles Fox, for plaintiff in certiorari.
    William A. Rogers, contra.
   * Avert, J.

The questions to be determined in the present .case all arise out of proceedings said to be authorized in section 11 of the charter.

For the construction of this road, as well as all other railroads, turnpike roads, other public roads, and canals, power was intended to be given to the extent necessarily required for accomplishing the object. Such a power has been so often conferred, and so long sanctioned by the courts of the country, that np one appears now to dispute the right to grant it. In carrying on and completing a work like this, as it must pass over the promises of a great many land-owners, a provision for ascertaining the damages to any of them, by the judgment of disinterested persons, becomes indispensable. In estimating the damages occasioned by railroads and canals, election is always given to estimate and deduct the benefits, and this mode of fixing the amount to be paid to the owner of property has received the sanction of our courts. In the course of proceeding authorized by this charter there is nothing unusual, and we have only to see whether that which has been actually pursued is in conformity with its requisitions, or if not in exact conformity, whether the proper remedy of the injured party has in the present ease been adopted. The charter-provides that the company may take possession of all lands indispensable for the construction and maintenance of the road, but that the lands thus entered upon shall be purchased at a price agreed upon; and in case of disagreement, disability of the owner to contract, or his absence from the country, application may be made to any judge of the court of common pleas, who shall thereupon issue his warrant to the sheriff. This warrant requires him to summon three freeholders, not stockholders, nor otherwise interested, who shall value the damages and reduce their valuation to writing. From such valuation either party may appeal to the common pleas; and that court, for good cause shown, may order a new valuation, and on final hearing the court shall award costs-according to equity. In this case two of the land-owners, being ^dissatisfied, did appeal. They carried their appeal into-court; they of course intended to make it available, and give to the appellate court jurisdiction, and in truth they complied so-minutely with the directions of the law, that the court did without doubt obtain complete jurisdiction.

If this be so, what next was to be done by the parties taking-the appeal ? The statute provides for the case by authorizing a new valuation and a final hearing. Now, instead of proceeding under the appeal, the parties who brought it into court sought to treat it as a nullity, or to convert it into a certiorari. Appeals can not be used for such a purpose ; no principle or practice authorizes it, and it is only necessary to describe the proceedings to see-that in this there is error. Even if the defects alleged to appear upon the face of the warrant could have been properly noticed after the appeal, for the purpose of quashing the warrant, they are not supposed to be fatal in the case. Yet here is an important interest, that must at all times, and by some mode of proceeding, be fully protected. There should indeed be a provision for securing it in the early stages of the proceeding. In the section authorizing the appropriation, no specific mode of redress is indicated.

The objection first named, concerning “such lands as may be-indispensable for the road,” is the only one that can be of much interest to the owner, and we see no reason why that may not be a subject of inquiry before the common pleas, under the appeal. We consider the parties when there as having lost no right which previously existed; and as the land appropriated would perhaps-in some cases far exceed the quantity deemed necessary for the road, the court might be induced to refuse a valuation. But whatever may be the proper remedy for any alleged grievance of the land-owner, the proceedings ,by the appellants in this case can not be sustained.

There was error in these orders of the court of common pleas, and they will therefore be reversed.

Read, J., dissented.  