Virginia & Truckee Railroad v. Lovejoy

By the Court,

The demurrer to the petition was properly overruled. Toledo and Wabash Railway Co. v. Daniels, 16 Ohio St. 390.

The report of the commissioners fails to show that they, or a majority of them, met at the time and place ordered, and before entering on their duties were duly sworn to honestly, faithfully, and impartially perform the duties imposed upon them. Eor this reason the court erred in confirming the report. New Jersey Railroad and Transportation Company v. Suydam, 2 Harrison, N. J. 25; C. P. R. R. Co. v. Pearson, 35 Cal. 258.

This dispenses with the necessity of deciding whether the affidavits in the record show good cause for setting aside the report. The safer way, however, is to set forth the evidence word for word, fully and accurately, in the report. *105And it would not be amiss, in order to guard against all complaints of tbe kind bere made, for tbe commissioners to take tbe testimony as depositions are taken, causing eacb witness to sign bis name thereto at tbe time.

Tbe statutory provision tbat, in assessing tbe compensation, allowance shall be. made for any benefit or advantage tbat will accrue by reason of tbe construction of tbe road, seems to be inapplicable to this case. And consequently tbe relevancy of some portions of tbe testimony may admit of question. Tbe appellant was entitled to tbe actual market value of tbe property at tbe time of taking, without deduction for any appreciation in value caused by tbe previous location and4 construction of tbe road.

Tbe order appealed from is reversed and tbe proceeding remanded for further action in tbe court below.