(dissenting). I am well satisfied with the decision of this Court when this case was here before, and with the opinion of Chief Justice Champein, reported in 89 Mich. 209. Any other holding is not only inconsistent with the repeated adjudications of this Court, but contrary to the spirit and purpose of the constitutional provision relating to the taking of private property for the use or benefit of the public.
Hnder section 2, art. 18, of the Constitution, it is evidently contemplated that the necessity for the taking and the just compensation to be awarded are to be found by a jury of 12 freeholders residing in the vicinity of such property, or by not less than 3 commissioners, appointed by a court of record as shall be prescribed by law. It was never intended that the fixing of damages should rest in the discretion of any court, but the right of the perBon whose property is sought to be sequestered to the determination of 12 of his neighbors upon the question is guarantied by the Constitution, so that neither courts nor legislatures can deprive him of it. Yet in this case the Judges of this Court are asked to set aside the judgment of the 12 men provided by the Constitution to ascertain respondents’ damages, and, in effect, to fix our own estimate of damages to property which some of us have never seen, and of the location and value of which *60we are ignorant, except as we weigh and determine the conflicting evidence in the record before us.. For, if we have the power, and, having it, exercise it, to set aside a verdict because we think it is too great, do we not, in effect, fix the limit beyond which a jury cannot go in the ascertainment of damages ? Having no personal knowledge of the property of respondents sought to be condemned by these proceedings, and having no constitutional or statutory power to use a personal view of the premises in aid of my judgment, I shall not take the liberty to substitute my judgment for that of 12 men residing in the vicinity of this property, and presumably having better knowledge than I have of the property, and the damages that will result to it by the proposed taking. I know of no other reason for a view of the premises except that such view may be used in the formation of the judgment of the jury, both as to the necessity of the taking, and the amount of the compensation to be awarded.
The jury in condemnation proceedings, “as in all cases where no certain measure exists, must trust somewhat to their own judgment. That is one of the purposes for which juries of inquest are provided. They are expected to view the premises, and use their own senses, both to obtain such information as an eye-witness can gain, and to interpret and comprehend the testimony of others.” Grand Rapids, etc., R. R. Co. v. Chesebro, 74 Mich., at page 475 (Campbell, J.); Toledo, etc., Ry. Co. v. Dunlap, 47 Id. 466.
It has been uniformly held by this Court, in the face of a statute which provided that the judge should attend the jury to decide questions of law and to administer oaths to witnesses, that, after the jury were selected and sworn, the whole matter was in their hands, and the decisions of such judge were entirely advisory, and that *61the jury were the sole judges of the law and the facts; and, further, that they were not conclusively bound by the opinion of witnesses either as to value or damages. Grand Rapids, etc., R. R. Co. v. Chesebro, 74 Mich. 471, 472, 476, 478; Mich. Air Line Ry. Co. v. Barnes, 44 Id. 226, 227; Toledo, etc., Ry. Co. v. Dunlap, 47 Id. 456; Port Huron, etc., Ry. Co. v. Voorheis, 50 Id. 510; Detroit West., etc., R. R. Co. v. Crane, Id. 182, 187; Flint & P. M. R. R. Co. v. Detroit & B. C. R. R. Co., 64 Id. 363; Fort Street Union Depot Co. v. Jones, 83 Id. 415, 418.
The contention of the petitioner that the circuit judge had a right, in this case, to set aside the verdict of the jury, and grant a new trial, because of the admission of irrelevant testimony, must rest upon the presumption that this is a judicial proceeding to be controlled by the courts as in a suit at common law. This is not the theory of the Constitution, or in accordance with the previous rulings of this Court. It is not a judicial proceeding.
“Commissioners form no part of the machinery of a court, and a jury of inquest is not a court. It has always been settled that the appropriation of .private property did not come under the ‘judicial power/ as it is located under the Constitution in courts, and, except for the Constitution, the nature of the tribunal of condemnation would have been discretionary with the Legislature.” Campbell, J., in Grand Rapids, etc., R. R. Co. v. Chesebro, 74 Mich., at page 471.
The proceedings in this class of cases are special, and bear little resemblance to ordinary legal trials. Toledo, etc., Ry. Co. v. Dunlap, 47 Mich, 462; Port Huron, etc., Ry. Co., v. Voorheis, 50 Id. 510.
If the circuit judge can be permitted to set aside a verdict because improper and irrelevant testimony has been admitted, then the long line of decisions above *62quoted must be overruled, or our holdings will .be so inconsistent as to be absurd, and the proceedings become a farce. First, we hold that the attending judge has nothing to do with the admission or rejection of evidence, and that, if he rules upon any question, the jury are at liberty to disregard such ruling, they being the sole judges of the law and the facts; and, second, that if the jury, in admitting or rejecting evidence, have eri'ed, in the estimation of the circuit judge, he may, for that reason, refuse not only to confirm their verdict, but set it aside, and order a new jury. If this last proposition is to be maintained, what sense is there in the holding that the judge cannot control the jury in their deliberations before verdict upon this matter of the rejection of testimony? Would it not be better and cheaper for all parties, and more in accordance with the requirements of justice and fairness, that the attending judge should pass upon the matter of what is proper testimony before it goes to the jury? The answer is obvious. The second proposition is entirely inconsistent with the first, and, if established by this Court, as contended for in this case, it would be well to state that the previous adjudications of this Court are expressly overruled, and from this date inaugurate a new departure in the law of condemnation of private property for public use.
Much stress is laid upon the imperfections of a jury, but the answer to this is that they are the tribunal chosen by the Constitution, as a highway commissioner was chosen to condemn lands for public highways. So far no court has undertaken to interfere with a commissioner’s rulings as to the necessity or the damage in a highway opening where he had acquired jurisdiction. He is an autocrat beyond the law as to these matters, and made so by the Constitution. And a jury, in my opinion, *63in a case of this kind,'is the tribunal to fix the damages, and are judges of the law and the facts, created so by the Constitution; and, when clothed with'jurisdiction as the law provides, their award can only be impeached for fraud or corruption, or upon a showing that by mistake or willfulness they have omitted to take into consideration substantial elements of damage, and therefore substantial injustice has been done. And this is a matter for the Supreme Court, and not for the attending judge. As pointed out when the case was here before, no express power is given such officer in the statute to set aside the verdict of a jury and to impanel a new one, but such power is expressly granted to this Court. The only power given is to confirm, or at best to refuse to confirm, the report of the jury or commissioners. Here the duty of the attending judge ends under the statute, and, in view -of the Constitution, it is not to be presumed that he has any implied power, unless, indeed, it be true that this is a judicial proceeding, and the judge has common-law powers, which has been denied time and time again by this Court.
The absurdity of permitting the circuit judge in this case to set aside the verdict because of the errors- in admitting testimony, and because of the talk of counsel, the same as if this were an ordinary law-suit, is well illustrated by one claim of the petitioner and the opinion of the circuit judge thereon. In the course of the proceedings it was contended by the attorney for the respondents, in their behalf, that there was no necessity for the taking of the Backus property, or the street in front of it, because there was a strip of land belonging to the Michigan Central Railroad Company, which might be taken instead. It was found by the -circuit judge that the contention of respondents’ counsel was wrong in law, and that he had put improper questions to witnesses in *64this respect, especially in drawing out from one witness that Mr. George V. N. Lothrop had at one time said that there was no difficulty in condemning this Michigan Central property for railroad purposes; and this was one of his principal reasons for setting the verdict of the jury aside. Yet the jury found against the respondents upon the question of necessity, — the very question to meet which this claim that this Michigan Central strip could be taken and used was raised and argued by respondents' counsel. But the circuit judge, in the face of this finding, is convinced that, although the raising of this question and the argument upon it had no effect for the purpose for which it was used, yet it tended to largely increase the damages in favor of respondents, to the great prejudice of the petitioner. The award is not to be set aside, even by this Court, unless it clearly appears that injustice has been done, and yet we are asked to go into the realm of speculation to guess that an argument made by an attorney for one purpose, and in which purpose it failed, was productive of great harm in another and altogether different direction.
We held in Kalembach v. Railroad Co., 87 Mich. 509, that it would not be presumed that the jury in that case were prejudiced upon the measure of damages because of improper instructions by the court upon the law of negligence. Mr. Justice Grant said the result of the opposite rule “would be that a court must correctly instruct the jury upon all branches of every case, in order to avoid prejudicing the jury in their assessment of damages.” But here the doctrine is announced that in condemnation cases, where the jurors have heretofore been considered the judges of the law and the facts, and not bound by the instructions of the attending judge, the attorneys for the parties must make no mistakes in their . claims as to the law upon any branch of the case, or *65tbe verdict will be set aside. I have yet to learn of any case in the history of jurisprudence where a verdict has been set aside because an attorney for either party was mistaken in his ideas as to the law of the case, and contended in good faith for a proposition which was erroneous in the estimation of the courts. If this principle is established, there will be but little safety or certainty in trials of any kind, since much litigation is born of lawyers’ errors; and, if the appellate courts must pass upon the errors of counsel, as well as of the court, reversals will be the rule, and affirmation an exception.
This Court has never held that a probate or circuit judge could set aside a verdict of a jury or a report of commissioners, and impanel a new jury or appoint new commissioners, because the award of damages was excessive, or because improper evidence was received. In Marquette, etc., R. R. Co. v. Probate Judge, 58 Mich. 222, it was said that the commissioners’ report might be set aside if the amount awarded was unreasonable, and indicated that it was the result of prejudice or partiality, or that they acted upon a wrong basis of estimating the damages. It has also been said in other cases that the commissioners’ report could for substantial reasons be set aside, or the award of the jury be vacated, for irregularity or on the merits. Port Huron, etc., Ry. Co. v. Callanan, 61 Mich. 14; Grand Rapids, etc., R. R. Co. v. Chesebro, 74 Id. 472. If the judge can, under these decisions, vacate the award of the jury, there is no adjudicated case in Michigan where an order was ever made by an attending judge granting a new trial before a new jury, and there is no showing that such an order was ever made except in this case. No provision is made in the statute for any such action, and, as the right of appeal is only given upon the confirmation of the report, it *66seems plain to me that the right to vacate an award of damages is not vested in the attending judge because of •excessive damages or the reception of improper evidence. If he vacates the award, it must be for jurisdictional reasons, or because of fraud, undue prejudice, or corruption in the jury or commissioners. The amount of the damages, and the law of the case as to the reception or rejection of testimony, are beyond his province. With either he has nothing to do, or the utterances of this Court are to be disregarded.
In the very latest case in this Court before this one, Mr. Justice Grant, speaking for the whole Court, said, after quoting from the language of Mr. Justice Campbell in Railway Co. v. Dunlap:
“It was there also held that the functions of the judge in such cases were advisory merely, and that such controversies as this cannot be disposed of on merely technical notions. These proceedings may be instituted in probate courts, the judges of which are frequently not lawyers, and are unfamiliar with the rules of evidence. If they were to be set aside on account of errors in the admission or rejection of testimony, the difficulty of obtaining a finding by the jury which could stand the test would be apparent.” Fort Street Union Depot Co. v. Jones, 83 Mich. 418.
It will be seen that the petitioner in that case was ■contending for exactly the opposite rule that it seeks to have enforced in this case.
If it is to be held that a judge cannot control a jury by ruling as to what testimony they may receive, as we have uniformly decided heretofore, and also that, after •the jury come in and report, their award may be vacated, and a new trial granted by this same judge, because they have received improper testimony or rejected competent evidence, then the language of Mr. Justice Grant seems appropriate, for a jury are presumably as ignorant of *67rules of law as are probate judges; and there will seldom be found a verdict that can stand the criticism of a circuit judge in this respect. As before said, the whole thing becomes a farce and absolute nonsense, unless this Court goes still further than the majority opinion in this case, and overrules all our former adjudications that the jury are the judges of the law and the facts, and relegates the proceedings to the judicial practices after the form of the common-law trials. I am not prepared to go thus far, nor yet to take the initial step which logically must lead the Court at last to this end.
In conclusion, I do not think the petitioner has any .standing in this Court. I know of no constitutional method by which an individual or a corporation can be authorized to take the property of another, and hold, enjoy, and use .it, while litigating in the courts the amount it shall pay for the property. In any other case than a condemnation proceeding the voluntary payment of a judgment, after appeal, would discontinue the appeal. It is contended that under the statute it was the intent of the Legislature that the rights of the parties appealing should not be affected by the payment of the money, as directed by the court, either to the party, -or on deposit for the use of such party. And it is further contended that, as the petitioner has not appealed from the finding of public necessity for taking the property, that question is settled, and the company^ right to contest on appeal the award of damages remains, although it has taken possession of the property and paid the damages. Under our Constitution private property cannot he taken without just compensation, and it is not intended that possession of the property shall be given to the public, or to a quasi public corporation, until the matter of compensation is settled or finally determined, ■ and paid or secured beyond péradventure. *68Section 9, art. 15; Sheldon v. Kalamazoo, 24 Mich. 386; Marquette, etc., R. R. Co. v. Probate Judge, 53 Id. 226_ The Legislature has no power to avoid this plain provision of the Constitution. The petitioner could only-get possession of this street in front of respondents* property by the payment of the award. On its own motion it paid the money to respondents, and took possession of the property. By so doing it abandoned its appeal.