
    The Council Bluffs & St. Louis Railway Company v. Bentley et al.
    1. Bailroads: condemnation of right of way: jurisdiction of sheriff’s jury: certiorari. A sheriff’s jury has no jurisdiction in proceedings to condemn right of way for a railroad, unless tho owner refuses to grant the right of way, or the parties are unable to agree upon the compensation to be paid therefor. Code, § 1244. Consequently, where the owner had conveyed the right of way to the railway company, though by a deed which he was seeking to have set aside in equity, since the deed, until set aside, vested the title prima facie in the railway company, the proceedings of the sheriff’s jury, called out upon the owner’s motion, were without authority, and were properly set aside on certiorari.
    
    
      
      Appeal from Mills Circuit Court.
    
    Wednesday, December 12.
    JudgMent for plaintiff, and defendants appeal.
    
      Mall da Stone and Kelley Bros., for appellant.
    
      D. H. Solomon, for appellee.
   Seevers, J.

Ibis is a certiorari proceeding for tbe purpose of testing tbe legality of a sheriff’s jury, awarding to tbe defendants damages for tbe right of way over certain real estate owned by the principal defendants.

Tbe jury was impaneled by tbe sheriff at tbe instance of the Bentleys. In tbe petition for tbe writ, several objections to tbe validity of tbe proceedings are alleged. Among others, it is stated that tbe defendants, tbe Bentleys, bad conveyed the right of way in question to tbe plaintiff for a valuable consideration, prior to tbe commencement of tbe proceedings to condemn, instituted at tbe instance of tbe said defendants. This is not denied in tbe answer, but it is sought therein to avoid tbe effect of tbe allegation by tbe statement that, prior to tbe commencement of this proceeding, an action in equity was commenced by tbe principal defendants for tbe purpose of testing tbe validity of tbe said conveyance.

Proceedings to condemn tbe right of way for a railway corporation may be instituted by either the owner or tbe corporation, but this can only be done in case tbe owner refuses to grant tbe right of way, or the parties are unable to agree upon tbe compensation to be paid therefor. Code, §; 1244.

In tbe present case, tbe compensation has been, not only agreed upon, but paid tbe owner by the plaintiff; and tbe former bad conveyed tbe right of way to tbe corporation. This being so, tbe proceeding condemning tbe right of way by tbe sheriff’s jury is void for want of jurisdiction over tbe subject matter. In fact, there was no- subject matter in relation to which, under the statute, the sheriff had the power to act. There was no dispute to settle, and no condemnation required. The conveyance vested the title to the right of way in the plaintiff, unless it was void. This is not claimed.' But, as we understand, for some reason not apparent in the record, it is claimed the conveyance is voidable. Conceding this to be so, until it was set aside in a proceeding instituted for that purpose, it at least had the effect to prima facie vest the legal title to the right of way in the plaintiff, and, therefore, the sheriff’s jury had no jurisdiction over the subject matter at the time they were called on to act.

Affirmed.  