
    *Va. & Ten. R. R. Co. v. Campbell’s Ex’or.
    June Term, 1872,
    Wytheville.
    1. Compensation for Land—Removal to CircuitCourt.— Under the act, ch. 174, § 1, Code of 1860, the case of a railroad company asking the County court to ascertain the compensation to a land owner for the'land proposed to he taken for its purposes, which has remained in the court for more than one year without being determined, may be removed to the Circuit court.
    2. Same—Same—Jurisdiction.—In such a case, if the Circuit court sets aside the report of the commissioners, that court should not send the case back to the County court, but should take jurisdiction ofthe-case, and proceed in it with the same powers that are vested in the County court by the statute.
    3. Same—Same—Land Owner Cannot Apply to County Court.—A land owner, or-his executor, whose land has been taken by a railroad company for its purposes, cannot apply to the County court for the appointment of commissioners to ascertain the compensation of the land owner for the land so taken.
    4. Same.—After the company has made a motion for commissioners to ascertain the compensation due to a land owner, and the commissioners have reported, and the court has allowed the money to be received by the clerk, and directed him to pay it to the land owner, or hold it until the further order of the court, the executor of the land owner applies to the same court for commissioners to ascertain such compensation, and this case is removed to the Circuit court. The removal of this case does not bring up the first, and neither the Circuit court, nor this court, can enquire whether there is error in the action of the court in the first case.
    5. Evidence—Record.—The record in the first case may be used by the company in their defence upon the second motion.
    On the 24th of November 1851, on the motion of The Virginia & Tennessee Railroad Company, James Edmondson and four-others were appointed by the County court of Washington county, commissioners to ascertain a just compensation to the owners of land upon the line of their improvement within the said county, for such *lands as are proposed to be taken by the company for its purposes.
    The commissioners returned a report, which bears date the 11th of December 1851, in relation to the land of David Campbell, amounting to three acres, three roods and eighteen poles, and they fixed his compensation at one hundred and. forty-four dollars and fifty cents. And at the March Term 1854, the court made an order reciting the report, and that the attorney for the company had that day paid the money into court, and directing the clerk of the court to receive the money and hold the same until applied for and received by Campbell, or until the further order of the court.
    In December 1857, upon the motion of David Campbell, five commissioners were appointed to ascertain a just compensation to him for his lands through which the line of the railroad passes, and which had been taken by the said railroad company for its purposes.
    Nothing appears to have been done under this order: and in March 1861, David Campbell being dead, upon the motion of his executor, commissioners were again appointed to ascertain what will be a just compensation for the lands of which David Campbell died seized, and is proposed to be taken, or is taken, by the railroad company.
    These last commissioners acted on the 13th of April 1861, and fixed the compensation for the land taken at $1,200. Nothing seems to have been done further in the case until December 1866, when the railroad company offered a special plea of the statute of limitations, which was objected to by1 the plaintiff; and thereupon, on the motion of the company, and with the consent of the plaintiff, the cause was removed to the Circuit court of Washington county.
    The record does not show when the cause came on to be heard in the Circuit court, though the petition states that it was at a special term of the court in July 1870, *when the court set aside the report made under the order of the 24th of July 1851, and also the report made in pursuance of the order of March 1861, because the record does not show that they were returned in the proper time, and that it is not shown that notice was given to the owner of the land; and for the further reason that the record does not sufficiently connect the proceedings on the motion of the defendants with those on the part of the plaintiff. And the court being of opinion that other commissioners should be appointed to ascertain a just compensation for the lands of said David Campbell, deceased, &c., and that the Circuit court had no jurisdiction to make the appointment, it was ordered that the cause be remanded to the County court to be further proceeded with. To this order the railroad company obtained a supersedeas from this court.
    J. W. Johnston, J. W. & J. P. Sheffey, for the appellants.
    J. A. Campbell, for the appellee.
   ANDERSON, J.

delivered the opinion of the court.

This case is rather anomalous. It is a motion in a County court by the owner of land against a railroad company, to appoint commissioners to ascertain his just compensation for the lands through which the railroad passes, and which have been taken by the said railroad company for its purposes, and for damages, &c. The commissioners were appointed and reported, and on motion of the defendant, with consent of the plaintiff, the cause was removed to the Circuit court of the county in which it was depending.

The first question we will consider is as to the jurisdiction of the Circuit court. This case had been depending and undetermined in the County court for several jrears. The first section of chapter 174 (Code of 1860) provides that where any suit, motion, or other proceeding, has been depending in the County or Corporation *court more than a year, on motion of any party it shall, without notice, be removed to the Circuit court having jurisdiction over such county or corporation. The language is certainly broad enough to embrace this case.

But it is argued that the statute gives the County courts exclusive jurisdiction to appoint the commissioners, and requires their report to be returned to that court. And that if good cause be shown against the report, or if the commissioners report their disagreement, or if they fail to report in a reasonable time, the court (the County court) may, without further notice, as often as seems to it proper, appoint other commissioners, and the matter may be proceeded in as before prescribed. All these provisions, they say, are made with reference to the County court, and cannot originate in the Circuit court. It is true they cannot originate in the Circuit court. But if the legislature thought proper to pass another act authorizing, in express terms, the removal of such motion and proceeding from the County to the Circuit court for specified causes, surely such act could not be regarded as repugnant to the former. But such an act could not more clearly embrace this case than the language which is used, to wit: “any suit, motion, or other proceeding, pending in a County or Corporation court.” Any motion, or other proceeding, depending in the County court, in the case stated, shall ba removed to the Circuit court; and when removed, the fourth section provides, •' ‘shall be proceeded in, heard and determined by the court to which it is removed, as if it had been brought and the previous proceedings had in said court. ’ ’ The Circuit court is clothed with all the powers as to the case removed, which the statute vests in the County court, to enable it rightly to decide the case. Consequently, when the motion is removed to the Circuit court, it has full jurisdiction of the subject, and may hear and determine objections to the report of the commissioners, and for '^good cause shown, may set it aside and appoint other commissioners ; just as the County court could do. The jurisdiction of the County court is transferred to the Circuit court over the cause removed, and with it all incidental powers necessary and proper to the complete and full exercise of jurisdiction. And the statute makes it imperative upon the County court to remove the cause, in the case stated, on the motion of any party to the proceeding; consequently, it is equally obligatory on the Circuit court to take jurisdiction, to proceed in, hear and determine it, as if it had been brought and the previous proceedings had in sifid court.

We are of opinion, therefore, that the Circuit court of Washington, the cause having been removed to it from the County court, had jurisdiction of it, and was required by the statute to proceed in, hear and determine it, just as the County court should if the cause had not been removed. Consequently, the judgment of the Circuit court, that it had no jurisdiction of the cause, and remanding it to the County court, was erroneous.

We are also of opinion that it was competent for the defendant to rely upon the record of the proceedings of the County court, had upon its motion to ascertain the compensation to which David Campbell was entitled, &c., in its defence to the motion of said Campbell’s executor. But without deciding (which we are not authorized to do, as the cause is not before us,) whether that proceeding in the County court was final, or was still depending, and could be removed to the Circuit court by motion, we are of opinion that it was not competent for the Circuit court to decide any questions involved in that proceeding, as it was not before it by way of appeal or removal, and not then subject to its jurisdiction; and that, consequently, the judgment of said Circuit court is erroneous, so far as it sets aside the report of the commissioners in that proceeding, and directs other commissioners to be appointed.

*The court is further of opinion that the motion of the executor of David Campbell, in the County court, to have commissioners appointed, was unwarranted by law. If it could be regarded as a motion made in the proceeding instituted in that court, for the same purpose, by the railroad company (and we think it cannot be so regarded), it ought not to have been entertained until the report of the former commissioners had been set aside for good cause shown. We do not mean to intimate an opinion that that could have been done, or that it could not have been done, for the reason before assigned. But we are of opinion that the motion of Campbell’s executor is an independent motion, not connected with the proceeding instituted by the railroad company; and that the statute does not give to the land owner the right, by motion, to ascertain his compensation for his lands through which the railroad passes, and have been taken by the railroad company, or to recover damages from the said company.

The court is, therefore, of opinion, for the foregoing reasons, that the judgment of the Circuit court be reversed.

It is, therefore, considered bj^ the court that the said judgment of the said Circuit court be reversed and annulled; and that the plaintiffs in error recover against the defendant in error their costs by them expended in the prosecution of their writ of supersedeas here : and this court proceeding to render such judgment as the said Circuit court ought to have rendered, it is considered that the motion of David Campbell’s executor be dismissed with costs.

Judgment reversed.  