4 quashed or reversed.1 In collateral proceedings, the action of commissioners is presumed to have been correct if jurisdiction attached. Instead of bringing trespass because the proceedings are irregular, a certiorari should be sought.2 Reports are only to be set aside on good cause shown; not because the parties are dissatisfied with the amount of the award. It is a good cause, that the amount awarded was unreasonable. While evidence as to the amount of the award, and its justness, is admissible, it is not controlling. It is simply the opinion of witnesses, and should not have greater weight than the official acts of the commissioners, who have considered all the evidence. Reports or awards which are ambiguous will, if possible, be construed by the courts as within the legal exercise of the powers of the commissioners. Equity does not interfere with awards, except upon extrinsic evidence not before the commissioners, and then only in a very clear case.7 ages. § 244. Irregularity in arriving at the amount of damThe manner of arriving at the result of an assessment is subject to examination, but not the conclusion of the commissioners on the facts. The three commissioners cannot put down the amount respectively determined on by them, and divide the sum by three, and return the quotient as the result. Such a finding would be set aside. If the Commissioners of Central Park, 4 Lans. 467; Troy R. R. v. Lee, 13 Barb. 169; The State v. Justice, 24 N. J. L. 413; Pennsylvania R. R. v. Porter, 29 Pa. 165; Crawford v. Valley R. R., 25 Gratt. 467; Virginia R. R. v. Henry, 8 Nev. 165. 1 Cyr v. Dufour, 62 Me. 20; Matter of South Seventh St., 48 Barb. 12. 2 Van Steenbergh v. Bigelow, 3 Wend. 42. 3 Virginia R. R. v. Elliott, 5 Nev. 358. Chapman v. Groves, 8 Blackf. 308. 5 St. Louis R. R. v. Richardson, 45 Mo. 466; William and Anthony Sts., 19 Wend. 678; Matter of Pearl St., 19 Wend. 651; Commissioners of Central Park, 51 Barb. 277; Virginia R. R. v. Elliott, 5 Nev. 358. 6 Eastern R. R. v. Concord R. R., 47 N. H. 108. Baldwin v. Buffalo, 35 N. Y. 375. 8 Lee v. Tebo R. R., 53 Mo. 178; Rochester R. R. v. Beckwith, 10 How. Pr. 168. Kansas City R. R. v. Campbell, 62 Mo. 585. damages are flagrantly excessive, or if there are manifest indications, on the part of the commissioners, of an entire lack of appreciation of their duties, the court will interfere.1 A jury cannot add up the amounts sworn to by witnesses, and divide by the number of witnesses, to find the amount of damages.2 § 245. Wrong principle in estimating. When it is certain that an award of damages is arrived at on a wrong principle, the presumption is that the jury or commissioners have been influenced by an improper motive, and the court will not attempt to correct the estimate, however small, but will, in its discretion, grant a new assessment. The errors to be corrected must be in the principle of assessing values, or some obvious error in calculation. The grounds may be shown by the affidavits of the commissioners. The commissioners are not like a common-law jury, and their finding may be impeached by their own affidavits showing that they proceeded on wrong principles. The rule on which commissioners acted is a fact, and may be shown as any other fact; and if they awarded for a fraction of a tract a larger sum than the value of the whole tract, the principle on which they acted must be erroneous. 6 § 246. Error in amount of damages Itemized findings. An appellate court will not interfere with the report of commissioners, to correct the amount of damages, except in cases of gross error, showing prejudice or corruption." 1 Kansas City R. R. v. Campbell, 62 Mo. 585. 2 Peoria R. R. v. Birkett, 62 Ill. 332. 3 Cyr v. Dufour, 62 Me. 20. Matter of Beale St., 39 Cal. 495; William and Anthony Sts., 19 Wend. 678; Coster v. New Jersey R. R., 24 N. J. L. 730; New Jersey R. R. v. Suydam, 17 N. J. L. 25. 5 Canal Bank v. Albany, 9 Wend. 244. See & 242, note 5, as to errors of fact. 6 New Jersey R. R. v. Suydam, 17 N. J. L. 25. The Commonwealth v. McAllister, 2 Watts, 190; Chesapeake R. R. v. Pack, 6 W. Va. 397; Reitenbaugh v. Chester R. R., 21 Pa. 100. The commissioners cannot find a greater amount of damages than is claimed by the owner. The commissioners hear the evidence, and frequently make their principal evidence out of a view of the premises; and this evidence cannot be carried up so as to correct the report as being against the weight of evidence. Hence, for an error in the judgment of commissioners in arriving at the amount of damages there can be no correction, especially where the evidence is conflicting. Commissioners are not bound by the opinions of experts, or by the apparent weight of evidence, but may give their own conclusions. Where items are 5 distinctly stated, and improper items are included, the court may disregard the improper items and give judgment for the proper items. It is proper for the court to direct a finding by items. When the statute requires various items to be set out, a lumping verdict will be set aside,' and the matter recommitted.8 1 Houston R. R. v. Milburn, 34 Texas, 224. 2 Winebiddle v. Pennsylvania R. R., 2 Grant, 32. 3 Thompson v. Conway, 53 N. H. 622; Matter of Pearl St., 19 Wend. 651; Matter of Bushwick Avenue, 48 Barb. 9; Rondout R. R. v. Field, 38 How. Pr. 187; Pennsylvania R. R. v. Lutheran Congregation, 53 Pa. 445; Pennsylvania R. R. v. Heister, 8 Pa. 445; Willing v. Baltimore R. R., 5 Whart. 460; Western Pacific R. R. v. Reed, 35 Cal. 621. 4 Antoinette St., 8 Phila. 461; Albany R. R. v. Dayton, 10 Abb. Pr. (N. s.) 182. 5 Dalrymple v. Whitinghaus, 26 Vt. 345. 6 Harvey v. Lackawanna R. R., 47 Pa. 428. 7 Ohio R. R. v. Wallace, 14 Pa. 245. 8 Greenville R. R. v. Nunnamaker, 4 Rich. L. 107. 288 CHAPTER XXII. OF THE ASSESSMENT OF DAMAGES BY A JURY. 247. How the jury should be summoned. 248. Qualifications of jurors - Freeholders. 249. Disqualification from interest. 250. Swearing jury. 251. Objections to jurors. 252. Submission of similar issues to same jury. 253. Sources of information. 254. Jury of viewers. 255. Proceedings before jury-Practice-Evidence. 256. Decision of majority. 257. Itemizing verdict - Averaging. 258. Conditions in verdicts. 259. Setting aside verdict of jury. 260. Reassessment by jury. § 247. How the jury should be summoned. When the statute provides that the jury shall be drawn, summoned, and notified as in ordinary cases, they may be summoned by constables, or sheriffs, or partly by either.1 Fourteen men may be summoned, from whom a jury of twelve may be selected. The drawing should be in presence of the court, and under judicial supervision.3 The warrant for the jury should show the land over which the railroad passes, the title, and location.* Freeholders. The § 248. Qualifications of jurors legislature may prescribe that the jurors assembled to assess 1 Meacham v. Fitchburg R. R., 4 Cush. 291. 289 damages shall be freeholders; and this is done because they are supposed to have personal knowledge of the value of real estate in the vicinity, which entitles them to rely somewhat on their own opinions.' Freeholders need not be freeholders of the county in which they are summoned, if freeholders within the state. A man who has a bond for a deed, not having paid for the land, is still a freeholder. A juror from the" vicinage" means, from the county where the land is situated, not from the town or neighborhood. A jury from the three nearest towns means, from the three towns nearest to the town in which the land lies, - not nearest to the land taken. The town in which the land lies is not included. When there are applications from owners in different adjoining towns, the only practicable way is to take a jury from three of the towns nearest to the town in which the piece of land taken is situated." § 249. Disqualification from interest.-A juror who has a similar claim for damages to the one on trial is not a competent juror." Stockholders in a railroad are incompetent on the trial of the case against the railroad, and parties may object as soon as they learn the fact. The fact that a juror was a stockholder in another railroad against which a similar case was pending, which was to be tried immediately afterward, is no objection. A juror is not incompetent because he is a citizen of the town in which the road is to be built, and hence liable to pay taxes.10 A free Remy v. Municipality, 12 La. An. 657; Tipton v. Miller, 3 Yerg. 423. 2 New Orleans R. R. v. Hemphill, 35 Miss. 17. 3 Ibid. Convers v. Grand Rapids R. R., 18 Mich. 459. 5 Reed v. Hanover Branch R. R., 105 Mass. 303. Wyman v. Lexington R. R., 13 Metc. 316. Flagg v. Worcester, 8 Cush. 69. 8 Peninsular R. W. v. Howard, 20 Mich. 18. 9 The Commonwealth v. Boston R. R., 3 Cush. 25. 10 Johnston v. Rankin, 70 N. C. 550. |