In re the Writs of Ad Quod Damnum

delivering the opinion of the court:

A motion was made by Samuel G. Elbert, the petitioner in the matter of the writ of ad quad damnum issued for the condemnation of his property, to quash said writ for the following reason, viz.:

“That the writ is defective in that it does not follow the statute, because it fails to direct the jury to take into considera- - tian all the circumstances of benefit and detriment to result to the owner from the taking of the property sought to be condemned.”

It is insisted that even where all the owner’s land is taken, as in the present case, he may be entitled as “compensation”, to more than the intrinsic value of the land.

The correctness of this proposition is not questioned if the statute authorizing the condemnation directs the jury “to take into consideration all the circumstances of benefit and detriment.”

[1] But it does not follow that the writ is defective and void *394because it does not contain such words, and fails to so direct the jury.

The writ commands the sheriff to inquire of twelve impartial men, under their oaths and affirmations, of the damages the owner will sustain by reason of the taking of the premises. It will be' noted that the direction in the writ is, not that the jury shall inquire of the value of the land taken, but of the damages the owner will sustain by reason of the taking of his land.

We think the word “damages”, as used in the writ, means all the damages or compensation the landowner is entitled to receive under the act.

It is not necessary that the writ should define the word, that is done by the statute. The writ may not use such language as will narrow or restrict the damages, but it is permissible and proper to use such general word or words as will embrace all that the statute intends, and enable the landowner to prove the same. The owner was not precluded from doing this by anything contained in the writ, and presumably he did prove all the damages he was able to prove under the law; certainly he was not prevented from doing it by anything contained in the writ.

[2] The act under which the condemnation proceedings were had was a public act, and it will be assumed that the sheriff and his jury in the performance of their duty had knowledge of its requirements so far as their duties were concerned. They are supposed to know the requirements of the law under which they act. * .

[3] There is one fact that has had some wTeight with the court in determining the sufficiency of the writ, and that is the utter failure of the landowner to show or intimate that he has been in anywise prejudiced or injured by its alleged insufficiency. For all that appears to the court the jury may have taken into consideration, not only the value of the land, but also all the detriment the owner would sustain by the taking of his land. Nothing to the contrary is shown or alleged. In no way does it appear that he was deprived of the right to prove such damages, by the language of the writ, or that he has suffered any injury at all in consequence thereof. There is not only a failure to prove such facts; *395there is not even an averment of any such injury, or of the deprivation of any such right.

For the reasons given we think the writ sufficient, and the motion to quash the same is overruled.

It may be stated as a matter of some significance that the writ of ad quad damnum issued by the landowner and the one issued by the commission are identical in the parts complained of by Elbert. One of those writs may be considered his own, and the prothonotary in framing it followed exactly the language employed by the owner in his petition for said writ. Realizing the inconsistency of his position in asking the court to quash his own writ, he seeks to discontinue the proceeding so far as he is concerned.

[4] All we desire to say about the application to discontinue is that the landowner cannot discontinue the proceeding at this stage of the case. After a verdict has been taken, and a return made by the sheriff to the court upon the writ, the landowner will not be permitted to abandon his writ and thereby elect to take the larger damages awarded by the freeholders. Such permission would enable any landowner, dissatisfied with the damages awarded by the freeholders, to take out his writ of ad quad damnum, and if the verdict of the jury is less than the award of the freeholders, he may accept the larger amount. Such election would, in our opinion, be not only unreasonable, but entirely unwarranted by the law.

The landowner Elbert not only moved that the writ be quashed, but filed exceptions to the return thereon, and asked that the same be vacated and set aside for the following reasons:

1. That he was deprived of his right to challenge jurors selected in the impaneling of the jury required to be summoned under the writ.

2. That the return fails to show that the jury was properly sworn.

3. That the return fails to show that the jury took into consideration all the circumstances of benefit and detriment to result to the owner from taking his land.

4. The consideration by the jury, after the close of the case, of the notes of testimony made by stenographer Guyer.

*3965. That the jury separated after the close of the evidence and argument, and before they rendered their verdict.

There were many exceptions filed, but counsel for Elbert, in his argument and brief, grouped them as stated, and for brevity, as well as convenience, we will consider them under the same classification.

The first reason assigned for vacating the return is that the landowner was deprived of his right to challenge jurors selected and impaneled under the sheriff’s writ.

It is contended that a condemnation proceeding under the statute is a civil suit, and that under the law of this state, in every such suit each party has a right to challenge any juror for cause, and may also challenge a certain number peremptorily, or without cause.

[5] We do not regard the proceeding in question as a civil suit within the meaning of the statute which gives the right of peremptory challenge; and inasmuch as such right is given only by statute, it follows that it did not exist in this case.

The sheriff was commanded by the writ “to inquire of twelve impartial men * * * under their oaths and affirmations of the .damages which the landowner would sustain by reason of the taking of his lands, and that he and the jury by him summoned and qualified should make an inquisition,” etc.

The statute provides for a sheriff's jury of twelve men, and does not require the summoning of more than that number. The jury that is to award damages under the statute is not only summoned, but also selected by the sheriff, and by him alone. The right of challenge without cause does not and cannot exist.

[6] It may be conceded that a party to the proceeding might challenge any juror for cause if present at the time the jury is sworn, but it is not the usual practice to notify the parties of the time when the jury would be sworn, and failure to do so would not invalidate the return.

[7] If a party is not present at the time, and afterwards appears and takes part in the proceedings, participates in the trial, without objection to the jury previously selected and sworn, he cannot, after the award is made defeat the verdict and invalidate *397the return by showing that he had no opportunity to challenge. It was his duty to make his objection at the first opportunity in the progress of the case, and failing to make any objection until after verdict, it will be assumed that he was content, and had no valid objection to make.

We think the law upon the point is correctly stated in Thompson and Merriam on Juries, at § 275, as follows:

“No rule is better settled than that if a party to the cause have knowledge of any circumstances tending to disqualify particular jurors from serving therein, he cannot hold back those facts until after verdict, and then produce them in support of a motion for a new trial.”

But in the present case it is not shown or even alleged that there was any cause for challenge, and we are clearly of the opinion that the return should not be vacated because the landowner was not notified of the time the jury would be impaneled and sworn, he having participated in the proceedings without objection to any member of the jury, and not yet having shown or averred any cause why any juror should not have served.

[8] It is contended, by the second reason above stated, that the return should be vacated because it fails to show that the jury was properly sworn.

The return recites that the jury was sworn or affirmed according to law, but does not show that it was sworn to perform the specific duty imposed by the statute.

The landowner claims that the jury is a common-law jury, and must, therefore, be sworn to pérform the particular duty required by the statute.

No specific form of oath is prescribed by the statute.

If the statute prescribed a particular or certain form of oath, it would have been necessary to adopt and follow such form, and it may be that the return would have to show that fact; at least the court would require satisfactory evidence of that fact before confirming the return. But in the absence of any such provision in the statute, we think the recital in the return that “the jury was sworn or affirmed according to law” is a sufficient compliance with the terms of the statute. Certainly those words do not *398negative, neither are they inconsistent with, the fact that the jury was sworn to perform the particular duty they were required to perform. In ‘fact, they are entirely consistent with the fact that they were so sworn, and in the absence of proof to the contrary it may be assumed that “sworn or affirmed according to law” means sworn to perform the duties required by the law.

It is not denied that the jury was sworn as stated in the return. The evidence before the court shows the jurors were so sworn. It is not shown or alleged that they were not sworn to perform the specific duty imposed by the statute and writ. The only contention is that the writ does not expressly show they were so sworn.

We are satisfied that confusion and surprise would be caused if we were to hold that the return on an ad quad damnum writ must show that the jurors were sworn to perform the specific act mentioned in the statute or writ, because in all cases or matters out of court where the jurors, freeholders, commissioners, and inquisitors are required to perform specific duties, and make return of their proceedings, such a recital as is contained in the present return has been invariably made. We can see no difference in principle between this case and the others to which we have referred respecting the matter now under consideration.

Reason No. 3 need not be considered here at all, because the motion to quash the writ was based upon the same proposition, and has therefore been determined in passing upon the sufficiency of the writ.

[9] Before considering the fourth reason assigned by the landowner for vacating the return, we will refer briefly to his sixteenth exception. This was barely mentioned at the argument, and we are inclined to believe little, if any, reliance is placed upon it.

This exception is: “That the report of the jury does not specifically show that the amount awarded to Samuel. G. Elbert was awarded as the damages for the taking of his property for alleged public use.”

In respect to this exception it is only necessary to quote from the return the following:

*399“We, the undersigned jurors, duly summoned under the annexed writ, do award to Samuel G. Elbert, the owner of the lands and premises proposed to be taken, appropriated and used by the New Castle County Building Commission acting in behalf of New Castle County, for the purpose of the erection of a county building, thirty-nine thousand dollars.’’

It is difficult to see how language could be employed that would more clearly show that the award of said sum was made for property proposed to be taken for public use. It is true the word “damages” was not used, but it is manifest that the return is the evidence of the execution of a writ which required the jury to fix the damages for the land proposed to be taken, and the award mentioned in the return must, therefore, be the damages which the writ commanded the jury to inquire of.

[10] We will now consider the fourth reason assigned by the landowner for vacating the return, viz.:

The consideration by the jury, after the close of the case, of the notes of testimony taken by the stenographer, Guyer.

According to the evidence presented to the court, Mr. Guyer was engaged to take the testimony at the request of the jury after a number of witnesses had been heard, and it had become apparent to the jury that it would be impossible for them to remember, or conveniently make notes of, the testimony, a large part of which consisted of figures, estimates, calculations, etc.

Mr. Guyer admitted that he was not sworn, but he testified before the court that the notes he made, and which were given to the jury at their request, were a true and correct statement of the testimony given by the witnesses. There is nothing before the court showing the contrary.

We do not know of any rule of law, or of any established practice, that would prevent access by such a jury tp the notes so taken the original testimony having been heard by the jury from the witnesses themselves, and the notes being made and given to the jury at their request.

[11] The last objection to the return is based on the alleged fact that the jury separated after the close of the evidence and argument, and before they rendered their verdict.

*400While it is true that the jury did separate after the argument and before verdict, it appears from the testimony produced before ■ the court that one witness (Scott) testified after the argument, and that there was no separation after Scott’s testimony was heard, until after verdict. It also appears that after the argument was concluded the jury expressed a desire to hear further testimony, and thereupon counsel for both landowners and the sheriff consented that other witnesses might be heard, and expressed a willingness to subpoena any the jury might wish to hear. This is not denied by the landowner.

We do not know of any law that would prevent a jury in this state from separating at any time before verdict by the consent of the officer conducting the trial; nor is there any practice that would disallow a separation at any time before the jury is charged by the court. So that, even if the separation was not with the consent of the landowner, we think it would not invalidate the return when it was with the consent of the sheriff who conducted the trial and had full charge of the proceeding.

The motion to vacate and set aside the sheriff’s return is refused, and said return will be confirmed.

In disposing of the motion to quash the writ, as well as the motion to vacate the return, the decision of the court is based upon the statute which authorized the proceedings under consideration. We have not regarded it as necessary or profitable to consider the history of the writ of ad quad damnum, or its peculiar functions at different times and in different jurisdictions. The statute before us was the authority for its issuance in this case, and very clearly prescribes the duties to be performed thereunder.

Two important and undisputed facts have had considerable weight with the court in the determination of the several questians raised by the landowner, and they are:

[12] 1. That in no event is the court permitted to question, or in any way interfere with, the amount of damages awarded. The finding of the jury is made final by the statute. Such being the case, we have felt that the court should not destroy the verdiet by quashing the writ, or vacating the return, except for rea*401sons that were clear and strong. At least, the reasons must not be of an extremely technical character, as we think they are in the present case.

[13] 2. That it is not shown or alleged that the landowner was prejudiced or injured in his property rights in the slightest degree by the commission or omission of any of the acts or things complained of. It is not contended that the proceedings were in fact irregular or unlawful, but simply that the writ and return do not affirmatively and conclusively show a strict compliance with the law.

The motion to quash the writ of ad quod damnum made in the Goodwin case is likewise overruled, as well as the motion to vacate the sheriff’s return, and said return will be confirmed, it being understood and agreed that the same orders should be made in both the Elbert and Goodwin cases.