To enable the plaintiff to condemn the land of the defendant, its charter prescribes that it may file a petition before the clerk of the Superior Court, and the clerk may appoint commissioners, and they may appraise the damage to be paid to the defendant and report to the court from which the commission issued; and if either party is dissatisfied, there may be an appeal to the Superior Court. Laws 1872-73, ch 75, sec. 9. *Page 35
It will be noticed that the provision is very meager and unsatisfactory, and if it stood alone would be very difficult to administer. How the appeal is to be effected and what is to be done in the Superior Court is not stated; nor does it come under the general head of (51) appeals from justices of the peace, or from the Superior to the Supreme Court. Probably it was not made more specific under the idea that the general law for all such cases would govern, as it manifestly ought to govern, because it would produce interminable confusion if for every railroad and corporation there should be a separate and distinct system of procedure and trial. This seems to be the view taken by the counsel for the plaintiff, as we see in his brief the position taken that "the charter is not inconsistent with the general railroad act. Bat. Rev., ch. 99, secs. 16,17."
The general act provides that the plaintiff shall file its petition and the court shall appoint commissioners and they shall appraise and report to the next court in term-time, and that either party may except and the court shall pass upon the exceptions and may refer it back to the same commissioners or to others, and the second report is to be final and conclusive. So it seems that there is no express provision in the general law for a jury, nor for an appeal from the report of the commissioners to the Superior Court. There cannot be an appeal, in its ordinary acceptation, from the commissioners to the Superior Court, for the reason that they are not a court, and for the further reason that they make their report directly to the superior court, just as referee or master does.
It may be, however, that the parties have the right to have a jury trial. And there seems to have been no objection made to a jury trial in this case. And in R. R. v. Wicker, 74 N.C. 220, there was jury trial by consent.
Taking it, then, to be an ordinary jury trial to ascertain the damage to the defendant's land, and the defendant having a verdict and judgment, the costs follow as a matter of course. There was error, therefore, in so much of the judgment below as required the defendant (52) to pay a portion of the costs.
We are inclined also to the opinion that the defendant ought to have been allowed to open and conclude, and it is important that the rules of practice should be observed; but it is only a rule of practice, and the amount in controversy is so small that we are satisfied that the interests of the defendant would not be subserved by granting a venire de novo on the ground. Indeed, we assume that an appeal to this Court would not have been taken by the defendant upon that ground, if it had not been for more important error of requiring him to pay a portion of the costs. A venire denovo is therefore refused. *Page 36
The judgment below will be reformed so as to give judgment for the defendant for the damages assessed by the jury; and the defendant will recover full costs.
There will be judgment here in accordance with this opinion. And if the parties do not agree upon the amount, the clerk of this Court will ascertain and report, for which he will allowed $5.
PER CURIAM. Judgment accordingly.
Cited: R. R. v. Love, 81 N.C. 436; R. R. v. Church, 104 N.C. 532; R. R.v. Parker, 105 N.C. 249; Skinner v. Carter, 108 N.C. 108; Wooten v.Walters, 110 N.C. 259; Worthington v. Coward, 114 N.C. 291.
(53)