
    The Chicago, Santa Fe & California Railway Company, Appellant, v. Elliott et al.
    
    DIVISION ONE.
    Railroad: condemnation proceeding: assessment of damages: JURY. Either party in a proceeding to condemn property for a railroad right of way is entitled to have the damages assessed by the commissioners reassessed by a jury.
    
      Appeal from Ray Circuit Court.— IIon. J. M. Sandusky, Judge.
    Reversed and remanded.
    
      Gardiner Lathrop and C. T. Garner, Sr., & Son for appellant.
    (1) The plaintiff was entitled to have the report of the commissioners set aside, and a jury trial ordered as a constitutional right. Const., art. 12, see. 4; Railroad v. Almeroth, 13 Mo. App. 91; Railroad v. Story, 96 Mo. 611; Ptisey’s Appeal, 83 Pa. St. 67; Turnpike Co. v. Burket, 26 Ind. 53; Isom v. Railroad, 36 Miss. 200; Stewart v. Baltimore, 7 Md. 500; Kimball x>. Railroad, 35 Mo. 255; People v. McRoberts, 62 111. 38 ; Mitchell v. Railroad, 68 111. 286; People v. Stewart, 97111.123; Railroad v. Hock, 118 111. 587. (2) The plaintiff did no act, whereby he waived a trial by jury. Railroad v. Story, 96 Mo. 611. (3) When the commissioners have erred in the principles upon which they made their appraisal, the report should be set aside. Railroad v. Campbell, 62 Mo. 585 ; Railroad v. Brickett, 62 111. 332; Railroad v. Story, 96 Mo. 611. (4) Where the entire lot or tract of land is taken, the measure of damages is the cash market value of the entire lot or tract, irrespective of the prospective value by reason of the improvement. Patterson v. Boom Co., 3 Dillon, 465 ; 31 Minn. 300 ; Mills on Em. Domain, sec. 174; Bridge Co. v. Bing, 58 Mo. 491; Railroad ®. Chrystal, 25 Mo. 545.
    
      J. L. Parris for respondents.
   Black, J.

This was a proceeding to condemn property fór a railroad right of way. Commissioners Were duly appointed to assess damages. To their report the company filed exceptions contending, among other things, that the damages were excessive and praying for a reassessment by a jury. After hearing much evidence the court overruled the exceptions, and, hence, this appeal.

We have held on several occasions that in proceedings like this either party is entitled, as a matter of constitutional right, to have the damages reassessed by a jury. The court should have awarded a jury upon demand made therefor-without further showing. Railroad v. Miller, 106 Mo. 458, and cases cited.

The judgment is, therefore, reversed and the cause remanded.

All concur.  