
    [No. 5966.]
    Kern et al. v. Minekime.
    1. Eminent Domain—Right to Contest Necessity—Waiver Of—Respondent denying the alleged necessity for taking, and demanding that the issue of necessity be determined before any jury is impaneled, does not waive his right in this respect _by consenting that a jury he summoned.—(380, 381)
    2. Duty of Court to Summon Commissioners—When the respondent demands the determination of the necessity or taking, it is the duty of the court to summon commissioners for this purpose, even though the demand does not reguest or suggest it.—'(381)
    
      Error to Mesa County Court—Hon. Walter Sullivan, Judge.
    Mr. T. M. Logan, Mr. A. H. Davis and Mr. B. C. Hilliard, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Campbell

delivered the opinion of the court:

The defendant in error, as petitioner, sought, by special condemnation proceedings under our Eminent Domain act, to acquire a right of way for his irrigating ditch across the lands of plaintiffs in error, who were respondents below. From the decree entered upon the verdict of a jury, which ascertained the amount of damages, respondents sued out this writ of .error. Objection is here made to the instructions and to the sufficiency of the evidence to sustain the verdict, but, in the view taken of the ruling of the court in denying respondents’ demand to have the necessity for the tailing determined, the other objections mentioned will not be considered.

Respondents filed an answer in which they set forth many reasons for their claim that there was no necessity for the taking, and therein demanded that a jury be called to try the issues. On the morning of the day set for the hearing the parties, by their counsel, appeared in court and agreed to the calling of a jury. A venire was issued, and a recess of the court taken until the afternoon of the same day, at which time, and before the jury was impaneled, respondents called to the attention of the court and counsel for petitioner the fact that they asserted that there was no necessity for the taking, and demanded that that issue be determined before the trial upon the question of damages was begun. Counsel for petitioner objected to the taking up of this question until after the jury was sworn to try the case, aüd the court took no action and made no ruling upon respondents’ demand at the time it was made. Immediately thereafter the jury was impaneled and sworn to try the issues, and it then appearing from the statement of respondent’s counsel that they proposed to have the question of the alleged necessity, as well as the amount of damages, determined by the jury, petitioner objected to trying before the jury the question of necessity. The court sustained the objection upon the ground that by demanding a jury respondents had waived the determination of the necessity for the tailing.

In requesting that such necessity be first determined, respondents did not specifically ask that it be determined by a commission. And it is not quite clear whether the demand was made before the stipulation for a jury was entered into. There is no doubt, however, that it was made before the jury was impaneled and before respondents voluntarily entered upon the trial, assuming that the impaneling of a jury is part of the trial. The court apparently based its ruling upon Sand Creek L. I. Co. v. Davis, 17 Coto. 326, and Thompson v. Ditch and Reservoir Company, 25 Colo. 243. An examination of those cases, however, discloses that they are not authority for this ruling. In the Sand Creek case, the court expressly said that “a party may demand a jury to try the question of compensation and damages, and at the same time, or at any time before entering upon such trial, may demand the appointment of a board of commissioners to try the question of the alleged necessity.” "While respondents did'not, as already stated, ask that the hearing he by a board of commissioners, yet the demand was seasonably made and it was the duty of the court in response thereto to summon a board for that purpose. The demand was not waived, and its refusal constituted prejudicial error, for which the decree must be reversed.

jReversed.

Chief Justice Steele and Mr. Justice Musser concur.  