Ringle v. Board of Chosen Freeholders

*664 The opinion of the court was delivered by The Chancellor.

The insistment in behalf of the plaintiffs in error, in substance, is, that because the board of chosen freeholders did not appeal from the commissioners’ award they are not entitled to any benefit from the determination of the appeal, save the recovery of their costs, the finding of the jury being less than the commissioners’ award.

In support of this position, reliance is had upon the first proviso of that part of the law which has been quoted, to wit, that in “no case whatever” shall the board of chosen freeholders enter upon the land until it shall have paid or tendered the amoijnt of the award, the argument seeking its strength in the comprehensive character of the words “no case whatever,” and their use in the same section and sentence which defines what effect the verdict of the jury shall have.

In order to ascertain the legislative intent the proviso thus relied upon must be construed in light of the scheme devised for the ascertainment of the compensation which is to be made to the owner of land taken, and not with reference alone to its grammatical significance.

' The scheme is this: When it is necessary to take real estate, the board of chosen freeholders is to present a petition to a justice of the Supreme Court, who, after notice to parties in interest, is to appoint three commissioners. The commissioners are to be sworn, and then, after notice to the landowner, are to proceed to examine the land and appraise its value and the damage which its taking will occasion the owner, and report their award. When their report is filed, the board of chosen freeholders may pay or tender the award and take possession of the land, or, if they feel aggrieved, they may appeal to the Circuit Court of the county. So also the landowner, if he feels aggrieved, may appeal. If either of the parties shall appeal, the appellant must make application to the Circuit Court by petition, and thereupon the Circuit Court will become vested with authority to hear the matter of appeal “and adjudge the same,” directing an issue between the parties to be framed for that purpose, striking a *665 jury, causing it to view the premises, and, generally, trying the issue as other issues are tried in that court. When a verdict is reached, if the jury shall find a greater sum than the commissioners shall have awarded to the owner, then the owner shall have judgment for that amount; but if the owner shall be the appellant and the verdict of the jury shall be less than the commissioners’ award, then the owner shall pay costs, which costs shall be “ either deducted out of the said sum found by said jury, or execution awarded therefor, as the eourt shall direct.”

It is apparent from the provision of all the machinery necessary for the ascertainment of facts and formation of judgment, and the bestowal of power to adjudge, that the legislative intent is that, where an appeal is taken, the matter of compensation and damage is to be heard anew, independently of the award, as though it had originated in the court, and that it is to be decided by the eourt. If the statutory provision had been allowed to rest with the words which empowered the court to adjudge the matter appealed, there would be little or no room to question that the adjudication must be by the formal judicial sentence—judgment. But the act continues more specifically. It expressly provides that the adjudication shall be in form of a judgment, with costs in favor of the owner if the verdict exceed the award, and adds that if the verdict be less than the award and the landowner shall be the appellant, he shall pay costs, to insure the collection of which it declares that they shall be deducted from the amount of the verdict, or be recovered through the instrumentality of an “ execution,” as the court may direct. If the verdict be sufficient, to admit of the deduction, that means of collection is made available, otherwise execution may issue. The provision for execution predicates a judgment as clearly as does the previously-bestowed power to adjudge the appeal. It appears to be plain that a judgment is contemplated in every case. It is necessary to the court’s conclusion of the appeal.

Passing to the second question, we think that so long as the appeal stands, and permanently, if it be concluded by *666 judgment, it supersedes the award of the commissioners. It becomes, as has been already said, a new means for the ascertainment of the just compensation which is to be paid to the landowner. Such is the effect which has been accorded to similar provisions in other statutes. Browning v. Camden and Woodbury Railroad Co., 3 Gr. Ch. 47; Johnson v. Baltimore and New York Railroad Co., 18 Stew. Eq. 454; Waite v. Port Reading Railroad Co., 3 Dick. Ch. Rep. 346; Lew. Em. Dom., § 541. The award being superseded, it follows that the judgment must be based upon and follow the verdict of the jury.

We think that the proviso upon which the plaintiffs in error have relied is applicable only to cases in "which possession is sought before the institution or determination of the appeal. We reach this conclusion not only because of its consistency with the scheme devised by the statute for the ascertainment of compensation, but also because of the connection in which the proviso appears. It is observed that it immediately follows a declaration that the appeal shall not prevent the freeholders from taking possession of the land, as a condition to insure the ultimate payment of the landowner,, so far as the award will extend in that direction. The possession is not to be taken until the award shall be tendered. The landowner may take it if he pleases. If he refuses to-take it, then, before possession of the land shall be taken, its amount must be paid into the Court of Chancery, where it will remain pending the event of the appeal, to be ultimately distributed according to law.

The judgment below will be affirmed, with costs.

For affirmance — The Chancellor, Chief Justice,. Abbett, Depue, Dixon, Garrison, Magie, Eeed, Yak Syckel, Bogert, Brown, Krueger, Smith. 13.

For reversal—None.