
    Bernard v. Brewer.
    October Term, 1795.
    Mills — Record—Notice—What Is Waiver oi. — Upon an application for leave to build a mill, it should appear to the appellate Court by the record, that the party whose property is sought to be condemned, had ten days previous notice of the motion for a writ of ad quod damnum. This might be dispensed with, if the record shews that the proprietor appeared and contested the application, upon the merits; a general appearance will not be sufficient.
    This was an appeal from a judgment of the District Court of Northumberland, affirming with costs an order of the County Court, giving leave to the appellee to build a mill upon a certain stream, the bed whereof belonged to himself, as well as the land on one side thereof.
    Marshall for the appellant,
    stated the following errors in the record.
    1st, That no notice appears to have been given to the appellant of the application to the court for the writ of ad quod damnum. The record states, that the acre sought to be condemned was the property of the appellant, and the act of Assembly expressly requires in such a case, that notice of the motion at least ten days previous to the making of it, should be given to the proprietor.
    *This law, as well as all others, which takes away from individuals in a summary manner, any portion of their property, must be literally and strictly pursued.
    2dly, The inquisition upon the writ of ad quod damnum was taken by the deputy instead of the high sheriff. This being a judicial and not a ministerial act, could not according to the principles of the common law be performed by a deputy. The act of Assembly requires the sheriff to do it, which must mean the high sheriff.
    3dly, No notice appears to have been given to Bernard of the taking of the inquisition. The law requires the sheriff to give notice to the -proprietor, or to his agent, (as in the case first mentioned) if neither of them were in court at the time the order was made, of the daj’ appointed by the court for taking the inquisition. It is true, the return of the sheriff is “that in pursuance of the writ he had impanelled a jury and proceeded in all things as the said writ required,” and that the writ commanded him to give notice; but in cases of this sort, nothing ought to be left to intendment. It should have been stated in express terms that the notice was given. The court should be unequivocally assured, that the party whose property is to be taken from him, had an opportunity of defending his right. From the literal exposition of the return made by the sheriff, it would seem, that he proceeded according to the command of the writ after he had impanelled the jury, whereas the giving of notice ought to have preceded it.
    4th, The law requires the inquisition to be returned to the next succeeding court. Now this is returned to the June court, whereas the next succeeding court was in May.
    Warden, for the appellee,
    admitted, that if the notice required to be given of the motion for the writ of ad quod damnum, could be in any manner useful to the proprietor of the land, the want of it -would be error.
    But this could not be the case, since the law directs the court to award the writ upon motion, and seems to consider the proper time for contestation to be at the return of the writ. So that if the appellant had had notice, he could not have opposed the issuing of the writ, if, as he had supposed, the court had no discretion to grant, or refuse it.
    But admit that notice was important, the appellant has not stated the want of it upon the record, and therefore, the court will presume the judgment below to be right, unless the contrary appear.
    *The second objection he said was more serious, as the law must be admitted to be as stated by Mr. Marshall. The only difficulty is to decide, whether in this case, the sheriff acts judicially or ministerially? He was inclined to think, that he acted in the latter capacity. 1-Iis duty is pointed out by the law. The jury' are to make the enquiry, and he is in no instance called upon to exercise the functions of a judge. Besides, by the act of Assembly, the sheriff is to execute all process to him directed, either himself, or by deputy. This writ may properly be called the process of a court within the meaning of the law.
    In answer to the third objection, he relied, that it was then too late for the appellant to complain of want of notice, when the record states, that he appeared, and contested the writ and inquisition.
    The fourth objection he said was founded upon a mistake respecting the times when the sessions of this county court are held.
    
      
      MiIls — Record—Notice—What Is Waiver of. — The principal case is approved in Muiré v. Falconer, 10 Gratt. 16, but distinguished in Pitzer v. Williams, 2 Rob 251. See the principal case cited in this connection in Fisher v. Smith, 5 Leigh 613.
      See monographic note on ‘‘Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.
      In Keystone Bridge Co. v. Summers, 13 W. Va. 504, -the court said: “But when irregularities in proceedings to condemn lands have occurred, the Virginia court of appeals applied the same rules with reference to the waiving of irregularities, not affecting the jurisdiction of the court, which occurred in the case, as they apply in all other causes. Bernard, v. Brewer. 2 Wash. 77.’‘
      Same — Right of Owners to Condemn Land. — The principal case is cited with approval in Varner v. Martin, 21 W. Va. 546.
    
   FEEMING, J.

The first objection stated by the counsel is, that ten days previous notice of the motion for the writ of ad quod damnum does not appear to have been given to the appellant.

All laws, which interfere with private rights, and which authorise a mode of proceeding unknown to the common law, ought to be strictly complied with.

If the record stated that the appellant was present and made defence, the objection might be gotten over. But as this does not appear to have been the case, I am of opinion, that the first objection made to the order is sustainable. It will be unnecessary to give any opinion as to the other objections, if the court should agree with me in opinion upon this point.

LYONS, J.

I have always been of opinion, that the greatest strictness is required in proceedings, not warranted by the regular forms and principles of the common law. That in such cases, an exception from the rule, “that what is done in a-court of record, shall be presumed to be rightly done,” is proper. On the contrary, nothing- is to be presumed, • and it should plainly appear that the proceedings were regularly’ conducted. These, I' say, have been the sentiments, which I have always entertained upon this subject. But I have been over ruled by the decisions of this court, where a different principle has obtained, and therefore, submitting to the authority of those decisions, I have been led to consider in this case, how far the principles which they establish, will apply to the first point made in this cause.

*It was argued by the counsel for the appellee, that the notice of the motion for a writ of ad quod damnum was not important, as it stood connected with the substantial justice of the case, since the granting of the writ, could not have been contested by the appellant; and that the record shewed, that the appellant after-wards appeared, and defended the motion. If I could discover that the appellant contested the merits of the subject in dispute, I should upon the authority of former decisions in this court, (which in this respect, admit no difference between cases of this sort and those carried on in the forms of the common law,) consider it as a waiver of all objections to the forms of proceeding, and of course, that the failure to give notice of the motion for the writ, could not afterwards be alledged by him as a cause for reversing the order. This court has decided, that after an appearance and defence made upon the merits of the case, the unsuccessful party shall not be permitted to object to any part of the proceedings, of which in an earlier stage of the cause, and before the trial upon the merits, he might have availed himself; as in the case where no issue has been made up. But in this case, it does not appear that the appellant contested the motion of the appellee upon the merits, but only the writ and inquisition. This is what he now contests; what he then had a right to contest, separate from the merits. And therefore nothing can thereby be presumed to be waived.

I do not think that there is any weight in the last objection. The conduct of the sheriff in returning, or in riot returning the writ and inquisition to the proper court, ought not to affect the parties. If there had been negative words in the law making the inquisition void unless returned by a particular time, the direction must have been strictly pursued; but this not being the case it was merely directory to him.

I am also of opinion, that the court had no right to award costs in this case, and that in this respect there is error.

The PRESIDENT. I agree in opinion with the other Judges who have gone before me, that if we could be satisfied from the record, that the appellant appeared, and contested the motion upon the merits of the case, he could not afterwards avail himself of the want of notice in the first instance, to defeat the order. A defence made upon the merits would, I think have amounted to a waiver of all objections to the form of proceeding. But the appearance after the inquisition was returned, and contesting merely the writ and inquisition, does not cure the error which the want of notice of the motion in the first instance had occasioned.

Judgment and order reversed.  