
    *Wash., Cin. & St. Louis R. R. Co. v. Switzer.
    September Term, 1875,
    Staunton.
    1. Eminent Domain—Appraisement by Commissioners —Testimony.—when commissioners are appointed by a County or Corporation court, under I 6, ch. 56, of the Code of 1860, for the purpose of ascertaining what will be a just compensation to the tenant of the freehold for land taken for a work of internal improvement, it is the duty of such commissioners to hear all the legal and relevant testimony offered by either party bearing upon the question of such compensation.
    2. Same—Same—Same—Refusal to Hear Such Testimony.—The refusal of the commissioners to hear such testimony, when offered in due time, is of itself sufficient to vacate their report.
    3. Same—Same—Report—Objections to Same.—When such report is returned to the court either party may show cause against its confirmation, upon the ground of excessive or inadequate compensation, • improper conduct of the commissioners in refusing or failing to hear legal and proper evidence, or by proof of any other fact tending to show that said report ought not to be confirmed.
    4. Same—Same—Open to Investigation—Notice.—Under the statute all matters affecting the validity of the report and the action of the commissioners are open for investigation without notice.
    5. Same—Same—Motion to Set Aside.—On the motion of the company, a rule is made on the tenant of the freehold to show cause why the report and assessment of the commissioners, made in such a case, should not be set aside, upon the ground that said assessment is excessive; and why other commissioners should not make said assessment. Upon the hearing the company willnot be confined to the specific objection therein suggested to the confirmation of the report; but the company may impeach it by showing that the commissioners had improperly refused or failed to hear legal testimony offered by the company upon the question of compensation and damage.
    6. Saras—Same—Same.—If the tenant may be surprised by tbe offer of testimony on matters not referred to in the rule, it is competent for the court to continue the hearing to a future day or term.
    At the August term 1873 of the County court of *Rockingham, on the motion of the Washington, Cincinnati and St. Nouis Narrow Gauge Railroad Company, commissioners were appointed to ascertain the damages which would be sustained by D. M. Switzer and others by the passage of the road of the company through their lands. In October 1873, the commissioners made their report, by which they fixed the amount to be received by Switzer at $1,250. And thereupon, at the November term of the court, upon the motion of the company a rule was made upon said Switzer to show cause why said report and assessment should not be set aside, upon the ground that the said assessment is excessive, and why other commissioners should not be appointed to make said assessment.
    The case came on to be heard upon the rule in March 1874; and in the progress of the trial the plaintiff proposed to prove that the commissioners had acted improperly in favor of the defendant, Switzer, in the assessment of damages in this—-that they had refused to hear any evidence on the part of the plaintiff to show what was the damage to the land of defendant, and what injury he would sustain by the making of said road through his land as proposed, though the said plaintiff, while the said commissioners were engaged in their assessment of said damages, offered and desired to do so, having the witnesses present for that purpose. To the introduction of this evidence the defendant objected, upon the ground that under the order entered in this cause, at the November term 1873 of the court, the plaintiff could introduce no evidence except to show that the damages assessed by the commissioners to said Switzer were excessive; and that the plaintiff could not move to set aside said report upon any ground but that named in said order, viz: excessive damages allowed to said defendant; ’’‘which objection was sustained by the court; and all the evidence excluded except such as related to the question of excessive damages. To which opinion of the court the plaintiff excepted.
    After the introduction of the evidence, as to the description of the land, and of a number of witnesses by both parties as to the damages which would be sustained by the making the road through the land of the defendant, who differed widely in their estimate—those of the plaintiff fixing them at from $300 to $800, and those of the defendant estimating them at from $1,10.0 to $1,200—the court confirmed the report of the commissioners, and ordered the said sum of $1,250 to be paid to Switzer. To which opinion of the court the plaintiff excepted. The company thereupon took the case to the Circuit court of the county, where the judgment was affirmed; and they then applied to this court for a supersedeas; which was allowed.
    Compton, for the appellant.
    G. G. Grattan andRobt. Johnston, for the appellee.
   Staples, J.

delivered the opinion of the court.

The court is of opinion that when the commissioners are appointed by a County or Corporation court, under the provisions of section 6, chapter 55, Code of 1860, for the purpose of ascertaining what will be a just compensation to the tenant of the freehold for land taken for a work of internal improvement, it is the duty of such commissioners to hear all the- legal and relevant testimony offered by either party bearing upon the question of such compensation; and- the refusal or failure of the commissioners to hear such testimony, *when offered in due time, is of itself sufficient to vacate their report.

The court is further of opinion, that when such report is returned to the County or Corporation court, either party may show cause against its confirmation, upon the ground of excessive or inadequate compensation and damages, improper conduct of the commissioners in refusing or failing to hear legal and proper evidence, or by proof of any other fact tending to show that said report ought not to be adopted.

The court is further of opinion, that the rule awarded by the County court of Rockingham at the September term 1873, at the instance of the appellant, did not have the effect of confining the appellant to the specific objection therein suggested to the confirmation of the commissioner’s report: but it was competent for the appellant, notwithstanding the rule aforesaid, to impeach said report, by showing the commissioners had improperly refused or failed to hear legal testimony offered by the appellant upon the question of compensation and damage aforesaid.

The court is of opinion that, according to a proper interpretation of the statute, all matters affecting the validity of the report and the action of the commissioners are open for investigation without notice, rule or pleading. The rule awarded as aforesaid in this case was therefore unnecessary, and cannot be held to deprive the appellant of a plain right conferred by the statute. If the County court had just reason to apprehend that the appellee might be surprised by the admission of evidence of matters not mentioned in the rule, it was competent and proper to postpone the investigation to such future day or term, at the costs of the appellant, as might afford the appellee sufficient time to meet the additional grounds of objection.

*The court is therefore of opinion that the County court of Rockingham erred in refusing to hear the evidence set out in the first bill of exceptions; and the Circuit court erred in refusing to set aside the judgment of the County court for the error aforesaid.

And this court proceeding to render such judgment as the said Circuit court ought to have rendered, it is considered by the court that the judgment of the County court of Rockingham be reversed and annulled; that a new trial be awarded the appellant, upon which trial the evidence aforesaid, if again offered, is to be received. And the case is remanded to the said Circuit court, for further proceedings to be had in conformity with the views herein expressed.

The judgment was as follows:

This day came again the parties by their attorneys, and the court having maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing, and filed with the record, that the evidence offered by the appellant, and set out in its first bill of exceptions, was relevant and proper evidence, and the County court of Rockingham erred in refusing to hear the same; and for said error the said Circuit court ought to have reversed the judgment of said County court, instead of affirming the same. It is therefore considered by the court that the judgment of the Circuit court be reversed and annulled, and that the defendant in error pay to the plaintiff in error its costs incurred in the prosecution of the appeal and supersedeas aforesaid here. And this court proceeding to render such judgment as the said Circuit court ought to have rendered, it is considered that the judgment *of the County court be reversed and annulled, and that the defendant in error pay to the plaintiff in error its costs by it expended in the prosecution of the appeal and supersedeas before said Circuit court. And it is further considered that a new trial be awarded the plaintiff in error, upon which new trial, if the evidence aforesaid is again offered, it is to be received by the court. And the case is remanded to the said Circuit court, to be proceeded with in conformity with the views herein expressed; which is ordered to be certified to the said Circuit court of Rockingham county.

Judgment reversed. 
      The principal case is cited in The B. & O. R. R. Co. v. The P. W. & Ky. R. R. Co., 17 W. Va. 847, for the rule that, “All matters affecting the validity of the report and the action of the commissioners are open for investigation without notice, rule or pleading.”
     