2 as fixed by the laying-out, although the highway was forthwith discontinued, or was never, in fact, opened.1 The easement taken was presumed to be perpetual, and the chance that it would be discontinued very remote, and hence mandamus would be sustained to compel the payment of the money. This gave the owner damages although not disturbed; and further, gave him the land after the discontinuance. To remedy this hardship on the public, statutes were passed restricting the damages in such cases to those actually suffered, and that no damage should be paid unless the land was actually taken. The owner could appeal from the award, and have an assessment by jury, although his land had not been taken. Under the statute, the award is a judgment on which execution is stayed until the land is actually taken. A location of a railroad may be abandoned, and a deed tendered to the owner, but this will not bar the recovery of all damages, but the fact may go in mitigation of damages. § 320. Evidence of abandonment - Non-user. That a track, once used as a main track for a railroad, has been superseded by another track, leaving the old track to be used as a switch, does not operate as an abandonment of the old track, and it cannot be taken up against the will of the company. The fact of abandonment may be shown, to defeat the recovery of damages over and above the amount paid, where the owner has applied to increase damages. The grantee of a right of way does not lose his 6 1 Hallock v. Franklin, 2 Metc. 558; Clough v. Unity, 18 N. H. 75; Shaw v. Charlestown, 3 Allen, 538; Willey v. Epping, 16 N. H. 58; Kent v. Wallingford, 42 Vt. 651; Battles v. Braintree, 14 Vt. 348. 2 Harrington ». Berkshire, 22 Pick. 263; Kirtland v. Meriden, 39 Conn. 107. 3 Clark v. Hampstead, 19 N. H. 365. Harding v. Medway, 10 Metc. 465; Lacroix v. Medway, 12 Metc. 123; Clark v. Hampstead, 19 N. H. 365. 5 Pinkerton v. Boston R. R., 109 Mass. 527. 6 Columbus v. Columbus R. R., 37 Ind. 294. 7 Hastings v. B. & M. R. R., 38 Iowa, 316. right by non-user. The grant is as of an easement by deed, which is not lost by non-user. If the railroad company abuses its franchise, and does not keep the railroad in operation, the legislature may interfere, or the corporation be controlled in a direct proceeding, but not at the suit of the owner of the land taken." § 321. Relocation. Actual damages only are to be paid on a relocation,—that is, the excess of damages suffered in consequence of the new road over that of the old road. If the damages fall below that, no judgment could be given for damages. 1 Washb. on Ease. 640; Barlow v. Chicago R. R., 29 Iowa, 276; Noll v. Dubuque R. R., 32 Iowa, 66. 2 Noll v. Dubuque R. R., 32 Iowa, 66. Hamilton v. Annapolis R. R., 1 Md. Ch. 107. Jewett v. Israel, 35 Iowa, 261. 342 CHAPTER XXVII. OF PROCEEDINGS SUBSEQUENT TO THE ASSESSMENT OF DAMAGES-APPEALS AND REVISION OF PROCEEDINGS. 322. Right to appeal. 323. Errors to be taken advantage of by appeal. 324. Waiver of irregularities in proceedings. 325. Waiver of right of trial by jury. 326. Errors waived by condemning party. 327. Timely objection to irregularities. 328. Claim of damages. 329. Receipt of damages. 330. Failure to find damages-A judgment. 331. Mandamus to compel finding. 332. Subsequent proceedings do not cure former defects. 334. Deed to condemning party - Obtaining possession. § 322. Right to appeal. — In ordinary cases either party may appeal. That is a proper method of ascertaining what is the just compensation. The action of the inferior tribunals may be made final and conclusive, so that no appeal will be permitted. The action of the court in the appointment of viewers,3 the report of the commissioners as to the expediency and necessity of roads and improvements, or on 1 Lec v. North-Western R. R., 33 Wis. 222. In Maryland, the legislation relating to eminent domain allows no appeals. West Maryland R. R. v. Patterson, 37 Md. 125; Wilmington R. R. v. Condon, 8 Gill & J. 443. In Texas, the proceedings may be final, being considered as in the nature of a proceeding in rem. Smith v. Taylor, 34 Texas, 589. Doubted in North Missouri R. R. v. Lackland, 25 Mo. 515. Hannibal R. R. v. Morton, 20 Mo. 70. 4 McCrory v. Griswold, 7 Iowa, 248; Wilmington Canal Co. v. Dominguez, 50 Cal. 505; Commissioners' Court v. Bowie, 34 Ala. 461; Hill v. Bridges, 6 Port. 197; Shattuck v. Waterville, 27 Vt. 600; West River Bridge v. Dix, 16 Vt. 446; Harwinton v. Catlin, 19 Conn. 520; In re Fowler, 53 N. Y. 60; The People v. Collins, 19 Wend. 56; The People v. Van Alstyne, 32 Barb. 131; The State v. Justice, 24 N. J. L. 413; Hanson v. Lafayette, 18 La. 295. the amount of damages,' or as to whether a sufficient millyard is left, where the statute exempts mills, and part of a mill-yard is taken,' may all be made final. The remedy is statutory, and the result may be made final, so that there is no appeal. The mere silence of the act on the subject of appeals, or failure to provide for appeals, will not exclude an appeal as in ordinary cases. The legislative provision prohibiting appeals would not preclude a resort to other methods for the correction of the finding where irregularity, mistake, or fraud have interfered. The remedy for an abuse of discretion, where no appeal is allowed, is by certiorari or writ of error. In case the owner appeals, he should not be compelled to give bond.' § 323. Errors to be taken advantage of by appeal.— The validity of a condemnation, or the question whether or not the land was necessary, cannot be called in question in a collateral proceeding. Errors complained of should be corrected by appeals or certiorari, and not in equity.10 Otherwise, a corporation would have no assurance that the steps taken would conclude any one, and they would be 1 New Britain v. Sargent, 42 Conn. 137. The People v. Kingman, 24 N. Y. 559. Western R. R. v. Dickson, 30 Wis. 389; Kramer v. Cleveland R. R., 5 Ohio St. 140. Bridge v. New Hampton, 47 N. H. 151. 5 Garrison v. New York, 21 Wall. 196; Harwinton v. Catlin, 19 Conn. 520. The People v. Collins, 19 Wend. 56; Palmer Co. v. Ferrill, 17 Pick. 58. 7 Nebraska R. R. v. Van Deusen (Sup. Ct. Neb.), 5 Cent. L. J. 430. See also 136. 8 Hamilton v. Annapolis R. R., 1 Md. Ch. 107; Evans v. Haefner, 29 Mo. 141; Clement v. Burns, 43 N. H. 609; The State v. Richmond, 26 N. H. 232; Crise v. Auditor, 17 Ark. 572; Ney v. Swinney, 36 Ind. 454; Galena R. R. v. Pound, 22 Ill. 399. In a collateral proceeding, as, an indictment for obstructing a highway, the presumption is in favor of the validity of the establishment of the road; that the viewers had taken the proper oath; that notices had been properly given; that the petitioners were legal voters, and that jurisdiction had been acquired. Henline v. The People, 81 Ill. 269. • Van Steenbergh v. Bigelow, 3 Wend. 42. 10 Northern Central Coal Co. v. Coal and Iron Co., 37 Md. 537. ceedings are not a cloud upon title, to be remedied in equity. Louis, 5 Wall. 413. Invalid pro Ewing v. St. 2 constantly subject to vexatious litigation. Errors in adjudication which are merely voidable, and do not render the adjudication void, cannot be availed of by the public after action has been taken. The only remedy is by appealing from the adjudication. In an action by a tenant for life for the sum awarded as damages to her, the town cannot show that there was error in awarding the entire sum to the tenant for life, instead of to the tenant and reversioner jointly. Such an error should have been remedied by an appeal from the award. It cannot be shown in a collateral action for damages that commissioners, in their original report, had been misled by misrepresentations of the railroad company as to the manner in which the road would be built.* The question of the adequacy of damages is to be remedied by appeal, and not by certiorari. An injunction is not a proper method of correcting errors in proceedings. An injunction is in that case a collateral proceeding. By appealing from an appraisement, the only question left is the adequacy of the damages. A direct action to set aside an award will not be sustained where an appeal is allowed, and it is not alleged that an appeal was prevented by fraud, collusion, accident, or mistake. Where the irregularity of the proceedings is the ground of objection, the claimants will not be permitted to resort to the remedy of injunction, but will be confined to an appeal; or, if the proceedings are so erroneous as to be reversible, to a petition in error; unless, indeed, special circumstances of fraud, accident, mistake, or the like, are shown.8 § 324. Waiver of irregularities in proceedings. -The owner may waive irregularities in the statutory proceedings, 1 Secombe v. Railroad Co., 23 Wall. 108. 2 True v. Freeman, 64 Me. 573. 3 Sparhawk v. Walpole, 20 N. H. 317. Butman v. Vermont Central R. R., 27 Vt. 500. The State v. Hulick, 33 N. J. L. 307; Johnston v. Rankin, 70 N. C. 550. The People v. Wasson, 64 N. Y. 167. Frevert v. Frifrock, 31 Ohio St. 621; McClelland v. Miller, 28 Ohio St. 488. |