
    Chesapeake and Ohio Canal Co. v. Hoye & als.
    January Term, 1846,
    Richmond.
    «. Inquisition — What It Must State. — The inquisition' taken under the 15th section oí the act incorporating the Chesapeake and Ohio Canal Company, should state specifically and separately the value of the land condemned in perpetuity, and the quantity and quality of the estate in the land condemned for temporary purposes; and should also state separately, the damages estimated on each separate source of damage; so that the inquisition will ascertain the damages which have been estimated; and will protect the company from any future demand for these damages.
    
    2. Same — Judgment upon — Appeal from. — An appeal lies from the judgment of the County Court, pronounced upon an inquisition taken and returned to the Court under the 15th section of the act incorporating the Chesapeake and Ohio Canal Company.
    
    
      3. Same — Grounds for Quashing. — The court may quash an inquisition taken under said act, for error appearing upon the face of the inquisition, or made to appear by proof at the hearing thereof.
    The Chesapeake and Ohio Canal Company applied to a justice of the peace of Hampshire county for a warrant *to condemn a part of the land of John Hoye and others, for the uses of the company ; a part thereof to be held by the company in perpetuity, and a part for five years. The warrant was issued, but not executed, and upon . the application of the company to the County Court of Hampshire, another warrant was issued to the sheriff of the county, who, in obedience thereto, went upon the land with a jury, and returned an inquisition to the Court, with a plat which shewed the location of the land condemned, and of the adjoining lands of the proprietors; and also shewed the location of the canal on the Maryland side of the river, and of a dam proposed to be built across the river. From the inquisition it appears that the jury laid off by metes and bounds, three acres, three roods, and fourteen square perches of the land of the ap-pellees, to be held by the company in perpetuity; and they laid off in the same way, seven acres, two roods, and fourteen square perches, to be held for five years. And the inquisition then proceeds: “And the jurors aforesaid, upon their oath, aforesaid, being met upon the said land, and having carefully examined the same, do say that they value the said land, and all the damages the said owners will sustain as owners thereof, by cutting the said canal through the same, and by the use and occupation thereof by the said canal company in perpetuity, and for temporary use for five years, at the sum of 5769 dollars; which is therefore hereby awarded the said owners. ’ ’
    The inquisition being returned to the County Court of Hampshire, the Chesapeake and Ohio Canal Company, at the November term 1838, of that Court, filed various objections to the affirmation and recording thereof.
    When the case came on to be heard before the Court, it appeared either by the admissions of the parties or the proofs, that the land condemned lay along the west bank of the Potomac river, opposite the town of Cumberland in Maryland; that which was condemned in *perpetuity lying highest up the river; that the canal of the company was located on the Maryland side of the river, and partly in the bed of the river; and that the soil of the land condemned for temporary purposes was being removed to the depth of the bottom of the river, and carried to the Maryland shore for the purpose of forming the bank of the canal; and the appellees admitted that the jury took into their estimate of the damages the cost of protecting one acre and a quarter of ground lying at the lower end of the seven acres condemned from abrasion by the waters of the river, to which it would be subjected by the removal of the earth immediately above it. It appeared farther, that the appellees owned two other tracts of land adjoining that of which the land condemned was a part; and lying higher up the river; and that the jury took into their estimate the damages which might be occasioned to these two tracts by the making the canal in Maryland, and the building a dam across the river; though there was then no such dam built. And the bill of exceptions leaves it doubtful whether a part of one of the,adjoining tracts was not considered as extending into Maryland; and whether the jury did not estimate the damages which would accrue from the passage of the canal through that part of it.
    After hearing the evidence, the County Court affirmed and recorded the inquisition; and the Chesapeake and Ohio Canal Company having excepted to the opinion of the Court, obtained an appeal to the Superior Court for the county, where the judgment of the County Court was affirmed; and then the canal company applied for and obtained an appeal to this Court.
    G. N. Johnson, for the appellant.
    This is a proceeding under the 15th section of the charter of the Chesapeake and Ohio Canal Company. The act chartering the company prescribes the duties of the jmy ; *and by their inquisition when affirmed, the title to the land condemned is vested in the company. The inquisition is intended to fix the price which is to be given for the land they acquire, whether in perpetuity or for temporary purposes ; and the assessment of the damages by the jurj, is not only to give to the owner of the land compensation for the injury he sustains, but to protect the company from any farther demands for injuries which have been already compensated.
    In these particulars, we submit that this inquisition fails. It states, it is true, the quantity of land which the company is to have; but it does not state the quality of the estate which it is to hold in that part condemned for temporary purposes. The act directs that the jury shall ascertain the quality and quantity of the estate in the land condemned. The quantity is the duration, the quality is the nature, terms, and conditions, upon which the estate is held. 1 Preston on Bst. 622. If the land is condemned for years, but to be held on condition of removing the soil, as this was, then it should have been so stated in the inquisition, that it might at once be seen that the damages were assessed accordingly.
    The admission of the appellees, and the proofs in the cause, shew conclusively that damages, other than the value of the land condemned, are assessed by the jury; and yet the inquisition gives no intimation of the fact. The expense of protecting the acre and a quarter of land adjoining that condemned from abrasion by the water of the river it is admitted was included in the jury’s estimate of the damages. The proofs shew that the jury also estimated the damages to two adjoining tracts owned by the same parties, which might arise from the building of a dam across the river; and it is even a matter of doubt whether they have not included in their estimate of damages, injuries which may arise to lands lying in Maryland by the passage of the canal “through them. The damages to these adjoining tracts were not a proper subject for consideration by the jury. Their authority did not extend to them; and for that reason the inquisition should have been quashed. James River & Ka-nawha Co. v. Turner, 9 Leigh 313. But if the jury was authorized to take these damages into consideration, the inquisition should have shewn upon its face, that this had been done, that the canal company might have been protected from any future demands on account of them.
    Griswold, and Cooke, for the appellees.
    The first question to be considered is, whether either the Superior Court of Hampshire or this Court has jurisdiction of the case.
    Appeals and writs of supersedeas are not known to the common law; but are creatures of the statute. Coopers v. Saunders, 1 Hen. & Munf. 413. The enquiry, therefore, is, whether there is any statute which authorizes an appeal in this case. The act under which this proceeding is had, certainly, does not in express terms, authorize an appeal. The 19th section directs that the cases arising under the statute shall have precedence over all other causes in “every court” in which they may be depending. At most, the right of appeal is a mere inference from this provision of the law; and this Court will not rest its jurisdiction upon an inference. If the legislature used the words*‘every court,’’supposing that there was a right of appeal, the erroneous opinion of the Legislature cannot confer the right. But the inference does not arise. The canal being expected to extend from the Potomac to the Ohio river, it was to be expected that many controversies would arise, which would be brought in the Courts of the different counties along the line of the improvement; and therefore the phrase was proper, and has its full meaning in being referred to these Courts, without inferring that “the Legislature had in its contemplation any appellate tribunals.
    The terms of the act authorizing appeals (Sup. Rev. Code, ch. 109, 'i 30, p. 145,) are, indeed, broad enough to cover every case which can occur in our Courts; but there are numerous cases which it has been held, though within the letter, are not within the meaning of the statute. Among these are orders for binding out apprentices, or in reference to them; Coopers v. Saunders, 1 Hen. & Munf. 413; the registry of deeds, Mann v. Givens, 2 Leigh 762; the granting ordinary licenses; the authorizing gates to be erected across public roads; tobacco inspections; county levies; and appeals from the judgment of a justice of the peace.
    In the cases of mills, roads, wills, administrators and guardians, the act authorizes appeals as of right; and yet this Court has decided that no appeal lies from an order of the County Court affirming the report of viewers assessing damages under the law in relation to roads. Hill v. Salem & Pepper’s Perry Turnpike Co., 1 Rob. R. 263.
    There are, then, limits to the right of appeal under our statute; and that limit can only be fixed upon any general principle by limiting the right of appeal to cases in which the County Court acts under its common law powers, or a general statute. 2 Bac. Arb., title Error, letter A, ? 3; Groenvelt v. Burwell, 1 Salk. R. 263, pi. 5. In this case the jurisdiction is given to the County Courts by a special statute; and rhey act, not according to the course of the common law, but in the mode specially directed by the act.
    This question, though new here, has been decided in Maryland, in the case of the Wilmington & Susquehanna Railroad Co. v. Condon, -8 Gill & Johns. 443. That case arose upon this 15th section of our act; the act of Maryland incorporating the Chesapeake and Ohio Canal Company, being simply the adoption of "'the act passed by the Legislature of Virginia." In that case, the Supreme Court of Maryland decided against the appellate jurisdiction.
    The 15th section of the act provides that the inquisition shall be returned to the Court of the county, and ‘ ‘confirmed unless good cause be shewn against the inquisition.’ ’ This good cause cannot be technical or captious objections; but must be an error of substance in the proceedings of the jury.
    In considering this inquisition, it must be taken in connection with the plat of the ground which is a part of the record. A reference to the plat makes the inquisition. certain. It shews the ground condemned; the acre and a quarter to be protected; the canal in Maryland, with its bank running in the river; and it also shews the bridge and dam which were to be built. There is, therefore, no difficulty in ascertaining the sources of the jury’s estimate of damages; and, consequently, there can be no difficulty on the part of the canal company, in defending itself against a second charge for the same injury. The plat, as well as the proofs, also shew that the tracts of land were in fact one; and the damages to all of the land was therefore properly assessed.
    C. Johnson, in reply.
    This is an appeal from a judgment inter partes; by which the appellant is adjudged to pay to the ap-pellees upwards of 5000 dollars. If there is no appeal in the case, then the owners of land through the whole line of the improvement are subject to have their land taken from them at the will of the juries and the County Courts.
    It is admitted by the other side that the language of our statute allowing appeals, is broad enough to embrace this case; and the right to appeal is not objected to on any grounds of public policy; but it is insisted that in some special cases the right of appeal does not exist, and that this is one of the cases.
    *A party claiming exemption from a general taw, should shew a good reason for it. He should shew that his case is not within the spirit of the act, though within its words; and it is"not enough to shew that there are other cases not within the spirit of the act. It is not pretended •that the act of 1824 forbids an appeal; and the counsel on the other side must, therefore, give good reasons why the general law does not apply to the case.
    The cases referred to by the counsel for the appellees, have no resemblance to this case. The case from 1 Hen. & Munf. 413, in relation to apprentices, was decided under our former statute in relation to appeals, which only allowed an appeal where the damages or debt were for a certain amount. The case of Mann v. Givens, upon the registry of deeds, was probably .founded upon the fact that the recording of a deed is a mere ministerial act. And in Mann v. Givens, 7 Heigh 689, this Court held a mandamus was the proper remedy. The case of Hill v. The Salem and. Pepper’s Perry Turnpike Co., merely decides that in that particular case the appeal was not the proper remedy.
    It is said that the act creating the Chesapeake and Ohio Canal Company is a special act, creating a special jurisdiction, the proceedings of which are not according to the course of the common law;-and, therefore, an appeal will not lie. This act is a public act. The corporation is not a private, but. a public corporation, created for great public purposes. The jurisdiction of the County Court over the subject is not new; and the mode of proceeding by inquisition, and also upon the return of it to the Court, is an old and familiar practice.
    ! The case from Maryland can. have no influence upon the decision of this cause, unless counsel can shew that the statute regulating appeals in that State is similar to ours. Here, this Court has been reviewing judgments of the County Courts in cases of mills, roads, and the like, ever since the foundation of the government. Such *cases are precisely like the present; and it would be monstrous to suppose that the Legislature would commit the great public interest involved in the work of this canal company, to a jury and the County Court, without any control or supervision. The case of The James River and Kanawha Company v. Turner, 9 Heigh 313, is a case of the same nature, where this Court took jurisdiction, and decided the case.
    The act under which this proceeding is had, contemplates the acquisition of land by the company for a temporary", or permanent purpose; and also the acquisition of stone, earth, timber, &c. ; and the same mode of proceeding is provided in each case. Hand is to be acquired for various •purposes. When it is acquired in fee, nothing farther is necessary to be said; but when for temporary purposes, the enquiry must be made, for what is it wanted? If it is said it is wanted for the purpose of digging and carrying off the earth, that is not a purpose consistent with a temporary use of the land. So in the case of an application to build a dam, it must be stated in the inquisition. So in every application for any thing under this -law, the inquisition must state specifically, what it is that is wanted; and what damages the jury allow for it. And in every such application it must distinctly appear that every thing has been done which ought to have been done. Risher v. Smith, 5 Heigh 611. In these respects the inquisition is clearly defective. No application is made to be permitted to remove the earth, yet damages are given for it. No application is made •to be permitted to build a dam, and yet damages are given for it. And whilst these damages are in fact given, the inquisition says not a word about either building the dam, or the removal of the earth. Damages are given for a probable injury to other land than that condemned, for which the canal company would be responsible in an other action; they are also given for probable injuries to other tracts of land; and *as it seems probable, for injury to land lying in Maryland; and yet not one word of all this appears in the inquisition. To say nothing of other errors apparent on this record, for these causes the judgment of the Courts below must be reversed.
    
      
      The provisions of this section of the act are fully stated by Judge Auden in his opinion.
    
    
      
      Appeals — natter of Right — Roads—An appeal is not demandable of right to a circuit court from an order of the county court affirming or disaffirming the report of commissioners appointed to assess the damages which would result from opening a road established by an act of incorporation. Hancock v. Richmond & Petersburg R. Co., 3 Gratt. 328; Hill v. Turnpike Co., 1 Rob. 263. But in referring to the latter case, Allen, J., in the principal case, said; “It merely decides that in the particular case an appeal was not demandable as of right. It was not a case arising outof acontroversy for the establishment of a road. The road, when located, was established by the law incorporating the company.”
      The principal case is cited in this connection, in Senter v. Pugh, 9 Gratt. 262, and Wheeling Bridge, etc., Co. v. Wheeling Steel, etc., Co., 41 W. Va. 747, 24 S. E. Rep. 652. Pora discussion of the general subject, see Miller v. Navigation Co., 32 W. Va. 46, 9 S. E. Rep. 57, and monographic note on “Appeals.”
    
   ALLEN, J.

This was a proceeding commenced under the 15th section of the act incorporating the Chesapeake and Ohio Canal Company, passed January 27, 1824, to condemn certain lands of the defendants in error, absolutely, and .other lands for the temporary use and occupation of the company, • for a period of five years. The law, after reciting that it is necessary for the making of the said canal, locks, dams, ponds, feeders, and other works, that provision should be made for condemning a quantity of land for the purpose, provides, if-the company cannot agree with the proprietors for the purchase, use and occupation thereof, that a warrant shall be issued by a justice of the peace, to the sheriff, to summon a jury. The sheriff is to administer an oath to the jury to value the land, and all damages the owner shall sustain by cutting the canal through such land, or the ■partial or temporary use or occupation of such land. And the inquisition is to be returned to the Court of the county; and unless good cause be shewn to the contrary, is to be affirmed by the Court, and recorded. If set aside, the Court may direct another inquisition. The jury is directed to describe, and ascertain the. bounds of the land by them valued, and the quality and duration of the interest and estate in the same required by the company for its use. And their valuation shall be conclusive on all persons; and shall be paid by the company to the owner of the land. And upon such payment, the company shall be seized of such land as of an absolute estate, or with the less quantity and duration of interest, or subject to such partial appropriation, use and occupation as shall be required and described *as aforesaid, as if conveyed by the owner to the company. The same section furthermore provides for similar proceedings to procure earth, stone, gravel, or timber, necessary to be used in the construction of their works.

Under this act, an inquisition taken and returned to the County Court of Hampshire was affirmed, and ordered to be recorded. The company obtained a supersedeas from the Circuit Superior Court; and the judgment being affirmed, the case has been brought by supersedeas into this Court.

It is objected, that the Circuit Court of Hampshire had no jurisdiction to award a supersedeas to the order and judgment of the County Court, when proceeding under this act. No such authority, it is true, is conferred by express terms in the act; but the legislature seems to have contemplated that controversies would arise, and might be depending in the different Courts of the Commonwealth under the law. The 19th section makes it the duty of every Court in which such controversies are pending, to give them precedence, and determine them in preference to all other causes. In authorizing this proceeding, no new or extraordinary jurisdiction.-was created; nor was • a new mode of procedure unknown to our -laws, introduced. The County Court to which the inquest was to be returned, is the oldest tribunal in the Commonwealth ; and the mode by inquest is that prescribed by the general law to condemn lands for roads, mills, and other public improvements. The slight, variations from the general law in the provisions of this act were such as the character of the improvement and the extent of the appropriation of private property seemed to require. There perhaps was no necessity to obtain leave to erect a dam, as in the case of a private individual. That permission is conferred by the charter, whenever such a work was deemed necessary; and therefore no en-quiry is directed as to the health of *'the neighbours, the passage of fish, the overflowing of the mansion house, &c. of individuals. It was not intended that such inconveniences or private injuries should obstruct the execution of a great public work like this. But when the Legislature adopted this accustomed mode of proceeding, modified to suit the nature of the particular case; but in all other respects provided for its execution in the regular manner fixed by the general law, under the supervision of the established Courts of the country, it would seem that all the ordinary incidents attaching to such a procedure, attended this. When, too, the magnitude of the interests involved are considered, it can scarcely be conceived that it was intended to commit them to the unlimited discretion of an inquest in the country and the County Court. J?or whilst on one hand they might inflict most serious injury on private individuals, on the other they might arrest the proceedings of the company, if there is no supervising power. If such a restriction was intended to be imposed, it should have been expressed in clear terms. This has not been done; on the contrary, it is conceded that, from the words in the 19th section, applying to all Courts, the Legislature probably believed the power of supervision existed. Such, I have no doubt, was their understanding; and I do not think they were mistaken. The value of the subject in controversy, under the act of 1819, 1 E. C. ? 56, 57, furnished the measure of jurisdiction, and would have authorized the supersedeas; and the 30th section of the act concernng Circuit Superior Courts, Sup. Rev. Code, p. 145, removes all doubt on this head, if any could exist under previous laws.

The case of Hill v. Salem and Pepper’s Perry Turnpike Co., 1 Rob. R. 263, is supposed to have disaffirmed the jurisdiction. The Court did not mean to establish any such proposition in that case. It merely decides, that in the particular case an appeal was not demandable *as of right. It was not a case arising out of a controversy for the establishment of a road. The road, when located, was established by-the law incorporating the company. Where a company is incorporated to construct a road, or other public improvement, there is no necessity to procure the leave of the County Courts, as in ordinary cases; provision for a just compensation to the proprietor for the exercise of this •right of eminent domain on the part of the State,- is all that is required. The controversy in the case in 1 Rob.. R. 263, was not about the establishment of the road; that was not a subject of controversy; but about the compensation for the injury; a matter collateral to the establishment of the road. The party was entitled not to an appeal as of right, transferring the questions of fact as well as law to the Circuit Court; but to a supersedeas to correct any errors apparent on the record: and this was the extent of the decision in that case.

I think, therefore, the Circuit Superior Court had jurisdiction to award the super-sedeas, and revise the judgment of the Count}' Court.

It is further objected, that as the valuation of the jury is to be conclusive on all persons, and when paid the company shall be seized of the property absolutely, or for a less estate, or subject to a partial appropriation,- as if conveyed by the owner to them,, it is not competent to go into the enquiry whether the jury have erred in their valuation or not. When the valuation is properly made, it is to have that conclusive effect; but until affirmed by the Court, it cannot be said to be properly made. This confirmation is necessary to give it the conclusive effect. The Court cannot substitute itself for the inquest and make the valuation; but until its sanction to the valuation made is given, the whole subject is open for investigation. As much injustice may be done where the jury proceeds upon erroneous principles, as where corruption or partiality is shewn. *The question raised by the objections taken to the inquest, is, whether it should be confirmed, so as to conclude all parties thereafter. And on that question it was competent for the Court to enquire whether the valuation and damages were excessive; whether subjects were embraced not properly within the scope of the en-quiry; and whether the finding has been such as to confer on the company the title to the property, and to protect it from future actions for the damages assessed.

On the merits, without going into formal defects, it seems to me the inquest is fatally defective on its face; and that if we look to the evidence offered in opposition to it, it is shewn to be defective in several other respects. The law requires the jury to value the land taken in perpetuity; to value or ascertain the damages the owner shall sustain by cutting the canal through the land; and the damages for the partial and temporary use and occupation of such land. These requisitions- are specific, and the in-questshould respond to each,-according to the principles of Kownslar v. Ward, Gilm. R. 127. The company desired to acquire land in perpetuity, apparently for the abutment of a dam; though this is not distinctly stated; and also the temporary use and occupation of a strip of ground on the margin of the river opposite the town of Cumberland in Maryland. The inquest assigned to the company three acres and upwards in perpetuity, but does not fix the value of it; and assigned upwards of seven acres for the temporary use of the company, but does not ascertain the damages the owner will sustain on account thereof; and then proceeds to ascertain the whole compensation to the owners for the value of the three acres and upwards, the use of the seven acres, and for cutting the said canal through the same, at 5769 dollars; without discriminating between the valuation and the damages. The canal, as it appears from the plat, passes on the opposite side of the river; and, therefore, no damage could have *been sustained by cutting the canal through this particular land. Whether the tract extended across the river or not, does not distinctly appear. If we look from-the inquisition to the bill of exceptions, which purports to set out the proof offered, (though on this head it is obscure and almost unintelligible,) it is somewhat doubtful whether the jury did not improperly estimate damages done to lands of these defendants situate in Maryland, from cutting the canal through the same. It is probable the words “for cutting the canal through the same” were copied from the terms of the act; and that no damages were allowed for this reason; yet the evidence tends to raise a doubt as to what the jury really did mean. Their finding is uncertain : and the fact that a doubt exists on this head, shews the necessity of responding to the various requisitions of the law. It is, besides, of importance to the rights of the company that the inquest should shew the consideration paid for the land acquired in perpetuity; and to distinguish between that, and damages allowed for temporary use of the land assigned for a term of years: and the precise damages allowed for the use of the seven acres might be very material in any future controversy growing out of any alleged abuse of the privilege allowed.

When the evidence is examined, the uncertainty becomes still greater. The inquest should be so specific as to protect the company from any action for damages anticipated and assessed. The evidence proves that a portion of the aggregate sum allowed, and perhaps much the larger portion, was allowed for such anticipated injuries; but the inquest discloses nothing from which it could be inferred in any future controversy that such injuries were foreseen and provided for.

Thus it appears, as well from the admission of the parties as the evidence, that the company desired the temporary use of the seven acres along the margin of the river for the purpose of removing the soil to the *depth of the river bottom, to be carried into Maryland for embankments, and thereby to widen the bed of the river. In effect to convert arable land into the bed of the stream. The inquest gave the company the use and occupation of this land as if it had been convej'ed. A conveyance for five years would have made them lessees for that term; and'could not have justified waste, amounting to the destruction of the thing. If it was intended to allow for this destruction of the subject, as no doubt was the fact, the jury should have described not only the quantity of the estate, the duration of the interest, but the quality of it; the condition under which the company was to hold it; and the purposes to which it was to be applied. The act in truth requires this to be done; and where it is to be used, not in the ordinary mode as a residence for hands employed, or a place for the deposite of materials, but in the mode here contemplated, it was essential the facts should be set out. As it is, the company would have no right to remove the soil or commit any waste; if they did, they would be liable to an action, and though in fact they may have paid the fee simple value of the land, the inquest would furnish no protection. It also appears from the admission of the parties, that the jury took into consideration damages necessary to protect the land from abrasions to which it would be exposed by the removal of the bank and land condemned for temporary uses. Nothing appears of this in the inquest, or could appear if a suit should be brought at some distant day for this injury. So it is proved the jury took into consideration injuries to this and adjoining tracts of the owners from the erection of the dam. The inquest is silent on this point. It should at least have ascertained the contemplated height of the dam, and the quantity of land that would be covered by the refluent water, and its value, or what was the injury or inconvenience for which damages were allowed. These matters the company *had a right to insist should be specified, as well to enable the Court to arrive at a correct conclusion upon the question of excess, as to afford a protection against future actions to recover for the same injuries.

I think the judgment of the County Court affirming the inquisition was erroneous.

The other Judges concurred.

The judgment of the Court was as follows :

It seems to the Court here, that said Circuit Superior Court erred in affirming the sentence and order of the County Court affirming said inquisition, and ordering the same to be recorded. Therefore it is considered that the judgment of said Circuit Superior Court be reversed and annulled, and that the plaintiffs in error recover of the defendants in error their costs, &c. And this Court proceeding to render such judgment in the premises as said Circuit Superior Court should have rendered, it seems to the Court here, that said inquisition is defective in not distinguishing between the valuation of the land condemned for the use of the company in perpetuity, and the damages allowed for the temporary use and appropriation of other lands, and damages allowed for any other inconveniences which might be sustained by the owners. And furthermore, as it appears from the evidence, that the jury took into consideration the injuries which might be sustained bj the owners from the erection of the contemplated dam; and also the damages which might be sustained in protecting other lands of the proprietors from abrasions and inundations to which it would be exposed by the removal of the bank and land condemned for temporary purposes; and also the damages which would be sustained by the removal of the soil from the land condemned for temporary purposes, and so converting the same into the bed of the river, the inquest was defective in not particularly ^specifying these various injuries, and the damages allowed for each, so as to protect the company from any future action for the same cause; and in not specifying the quality of, or condition on which the companj was to hold the estate in the land condemned for temporary purposes, as well as the duration of the estate; so as to protect the company from any other suit for using the land so condemned in a manner inconsistent with the quantity of estate vested in them; if said estate was sought to be condemned and used for purposes, and subject to conditions not Incident to a mere estate for years.

Therefore it is considered that the sentence and order of the County Court affirming said inquest and ordering the same to be recorded, be reversed and annulled; and that the plaintiffs in error recover of the defendants in error their costs in said Circuit Superior Court expended; that said inquisition of the jury be set aside; and the cause remanded to the County Court for another inquisition, and for further proceedings. _  