The opinion of the court was delivered by
Davis, J.This is an application to this court by William Gold, Jr., for a writ of mandamus, to be directed to the county court for the county of Washington, setting forth, substantially, that the Vermont Central Rail Road Company have located their road through the petitioner’s land in Northfield in said county, taking and appropriating for that about four acres and thirteen *482that, the parties failing to agree upon the price of said land, these commissioners, duly appointed in pursuance of the act incorporating said company, assessed the petitioner’s damages at the sum of 865,.— from which assessment, being aggrieved thereat, he appealed to the county court, and duly entered his appeal at the term of said court holden at Montpelier in November, 1846; that at the same term he filed a motion in writing, requesting the court to direct that his damages should be assessed by a jury, duly impannelled, — which request said court declined to grant; but, on the contrary, proceeded to assess such damages by the judges of said court, and did assess them at the sum of--. The petitioner thereupon, believing this proceeding of the county court to be a violation of his legal rights, prefers this petition to this court, — notice of which having been duly served upon the Rail Road Company, they appear by attorney to resist the application.
Practically the question may be considered- one of considerable importance; and it has undergone a full discussion at the bar, by the counsel of the respective parties. No question is made with respect to the power of this court to issue such a writ, in a case of this kind, directed to the county court, provided the ground assumed by the petitioner be correct, as to his right to insist on having his damages ascertained in that mode. We shall therefore consider the case as involving that question alone.
We are not disposed to attach any importance to the peculiar phraseology of the act of incorporation, authorizing the county court to decide finally upon appeal. The term “ court ” may be construed to include a jury, as well as judges and a clerk, or as used in contradistinction from a jury, according to the connection and object of its use. When the statute speaks of the county court generally, its powers and jurisdiction, it is to be understood in the former sense. When it authorizes the court, upon the agreement of parties, to try issues of fact, it is to be understood in the latter sense.
In this case nothing can be predicated, as to the sense in which the term “court” is to be used, from the mere language and connection. Resort must be had, for that purpose, to the nature of the question submitted to the County court, and to the mode of determining similar questions heretofore in use. If any uniform mode exists,, which has been recognized since the establishment of a judi*483eiary in the state, it will be a reasonable presumption, that, in the absence of any express provision to the contrary, the legislature intended that the same mode should continue to be pursued.
No matter precisely similar has heretofore been brought under cognizance of the courts. Rail road corporations are new bodies with us; and the taking and holding another’s land in imoitwn, for the purpose of constructing such roads, is a novel proceeding, now for the first time authorized by our laws. Easements for the use of turnpike corporations, and for common roads, have, however, long been established, upon a compensation rendered; and the mode of ascertaining the compensation to be paid in such cases would seem, from the close analogy in the subjects, the proper one to be applied here. What, then, has been that mode ? By commissioners, by committee-men, by appraisers, and perhaps by the county court judges, — but never by a jury. It has not been hitherto supposed, that it was a subject coming within the scope of the appropriate duties of a traverse jury. The issue to be tried, if it can, with any propriety, be called such, is altogether unlike that presented by the counter allegations between party and party, in which the truth of the facts in controversy is to be ascertained. The duty imposed is rather one of appraisement merely. As such, it appropriately belongs to one man, or a board of competent men, qualified properly to discharge it.
This view of the subject necessarily leads us to the conclusion, that the legislature, in transferring to the county court, upon the dissatisfaction of either party at the decision of the commissioners, the appraisement of damages in cases under this act, intended that the question should be tried without the intervention of a jury. If any innovation had been intended, it would doubtless have been indicated in express terms.
A similar view was taken by the supreme court of New Hampshise, in Backus v. Lebanon, 11 N. H. 20, in which case a turnpike corporation claimed to have the damages, occasioned by an appropriation of a portion of their road to the purposes of a free road, assessed by a jury. Chief Justice Parker, in denying the application, observed, “that, by a long course of legislation, the damages occasioned by the laying out of highways were to be assessed by the court, or by a committee; and no provision is found *484for the intervention of a jury in cases of that character.” The same remark is equally applicable to our own legislation.
On similar grounds the chancellor of New York, in Beekman v. S. R. R. Co., 3 Paige 45, determined, that a legislative provision for the ascertainment of damages, on laying a rail road by a committee was not an infringement of the right of trial by jury, guaranteed by the constitution.
The case under consideration is, in fact, in another particular, stronger than the ordinary one of laying out highways. Here the fee of the land is taken and paid for, — whether with a reversionary right to the former proprietor, on the extinguishment of the corporation, it is not necessary now to consider; and the question is simply one involving an appraisement of the value of the land, — taking into view, indeed, the uses to which it is to be applied. If was competent for the legislature to provide, that this revision of the primary appraisement should be made by the county court judges, or supreme court judges, or by a jury, or by another board of commissioners. No doubt the tendency of our legislation is in favor of extending the scope of the duties of traverse juries. County courts have been invested with a discretionary power to grant jury trials in trustee proceedings; and such mode of trial is now, in some cases, made imperative, on the request of either party, when before it was matter of discretion. A similar tendency may be discovered in the legislation of the general government, in a provision contained in the late bankrupt act, authorizing jury trials in certain cases under the act. 1
It only remains to be considered, whether the statute of November 2, 1846, can be considered as in any manner afféeting this question. We are all agreed, that it does not. It simply provides, that in any case then pending, or which might afterwards occur, when it should become necessary to assess damages, when no other provisions by law are made for such assessment, the same shall be assessed by a jury, on the request of either party. Now, not to place any stress upon the word case, as here used, — for perhaps that term may as well comprehend this proceeding, as an ordinary common law suit, — and in common parlance it has a more extended meaning than the word suit, or action, and may include application for divorce, applications for the establishment of high ways, *485applications for orders of support of relatives, and other special proceedings unknown to the common law, — yet if the views already expressed are well founded, there was no absence of provision by law for the assessment of damages in this case, already provided. The act of incorporation expressly provides it, in requiring the county court to perform that duty,— construing the language of the act, as we have done, to require it to be done in those modes only heretofore known and practiced.
The result is, the application for a mandamus must be denied, with costs.