White v. Memphis, Birmingham & Atlantic Railroad

Citations

• 64 Miss. 566

Syllabus

<p>Eminent Domain. JRailroad right of way. Condemnation proceedings. Provision of charter- as to disinterested freeholders.</p> <p>The charter of a railroad company provides that if the company and the owner of lands needed as a right of way shall not agree on a price to be paid for such land, application may be made to a justice of the peace, who shall issue his warrant to the sheriff requiring him to summon a jury.of twelve disinterested freeholders of the county to assess the value of the land. Held, that under this provision if the record of a condemnation proceeding show that an award was made by “ twelve persons” without showing that they were disinterested freeholders, the award is void, and may be treated as a nullity even in a collateral proceeding.</p> <p>2. Same. Condemnation proceedings. Jurisdictional facts. Waiver by failure to appeal.</p> <p>The record of such condemnation proceedings must affirmatively show all such facts as are essential, under such charter, to the jurisdiction of the tribunal making the award, and the fact of the jury being “ disinterested freeholders” being a jurisdictional one, its absence from the record is not waived by the failure of the railroad company, against whom the proceeding has been invoked by the landowner, to appeal from such award as allowed by its charter.</p> <p>3. Same. Condemnation proceeding. Invoked by landowner Strict compliance with statute.</p> <p>Under the charter of a railroad company which provides “ That if said company and the owner or other persons cannot agree as to the price of the land required for said road, application may be made to a justice of the peace of such county, who shall thereupon issue his warrant to the sheriff of the county requiring him to summon a jury to award damages,” etc., the remedy provided may be invoked by the landowner as well as by the railroad company, and the rule applies as well in the one case as in the other, that all the material requirements of the statute must b