Parham vs. The Justices, &c. Decatur County.

sought to be sustained upon several grounds, all of which were properly overruled by the presiding Judge. First, it is assumed in the argument, that the provision for compensation in the Act of 1799, relates only to roads which had been before that time laid out and opened; that having no prospective operation, there is no law providing compensation for new roads laid out over enclosed grounds, and, consequently, none for compensation in this case. Such is not our construction of the Statute. The language of the Act is, "When any person or persons shall feel him or themselves aggrieved, by reason of any road being laid out through his, her or their enclosed grounds," &c. &c. Being laid out is not to be understood in the past tense, in the sense of having been laid out, but in the present tense, in the sense of being now laid out, and applies to all roads in process of being laid out at any time. This is too plain to require farther notice.

[6.] Again, the injunction was asked upon the ground, that the Inferior Court, acting for the public, had no right to take the land of the complainant, before and until a just compensation had been made. The authorities agree mainly in this, that the compensation, or offer of it, must precede or be concurrent with the seizure and entry upon the property to construct the road. Thompson vs. Grand Gulf R. R. & Banking Co. 3 Howard's Miss. Rep. 240. Lyon vs. Jerome, 26 Wend. 497. Bonaparte vs. C. & A. R. R. Co. 1 Bald. C. C. U. S. Rep. 205. 2 Johns. Ch. R. 162. 5 Miller's Louisiana Rep. 416. Kent's Com. 340, note. In Younge vs. McKenzie, Harrison et al. (3 Kelly, 45,) this Court hold the same rule, and say, "We do not intend to say, that the company could not have entered upon the land, made the necessary survey and examination of the premises, under the authority of the Legislature, for the purpose of locating the eastern abutment of the bridge; but we do intend to say, the company had no authority to appropriate the private property of the defendants to the permanent and exclusive use of the company, until just compensation had first been made therefor, in the manner pointed out by the charter." By this ruling, which is in accordance with the doctrine laid down by Kent, Walworth, the Mis

Parham vs. The Justices, &c. Decatur County.

sissippi Court, and other authorities last referred to, the property cannot be permanently and exclusively appropriated until compensation is made or offered; that is, it must be made or offered before or cotemporaneously with the seizure and entry upon the land; but the Court or its agents may enter upon the land to review it, with the object of determining upon the practicability and utility of the road. They may do more-they may, upon the report of the reviewers, order the road to be opened, before making or offering compensation, because. this is not an actual seizure of the land-it is not a permanent and exclusive appropriation of it. Now this, by the statements of the bill, is all that the Court has done in this case. They appointed the reviewers, heard their report, and ordered the road to be opened. It charges farther, only, that complainant fears that the commissioners. will proceed to open the road.

[7.] But apart from this view of the matter, according to his own showing, the complainant is not entitled to relief. Under the Act of 1799, the Court is not in laches, and he is. That Act provides, that any person aggrieved by a road being laid out over his enclosed grounds, may apply, in writing, to any two or more of the Justices of the Inferior Court, whose duty it shall be to issue a warrant, and cause a Jury to be impanneled to assess his damages. He has made no such application—he has not complied with the law. Non constat, that the Court refuses to pay the damages, but we are left to infer, that as sworn officers, they will do their duty and pay them, when he comes forward to ask, and a Jury has assessed them. The law offers the compensation if he asks it. If he does not, he is presumed to be satisfied. He has an ample remedy at Law. At this moment the Court have not, because they have not seized the land, put themselves in a position to be enjoined. Notwithstanding all this, he claims equitable relief. Let him go and demand the assessment, as the Statute directs, and if the Court refuse to issue a warrant to impannel a Jury, or do, or fail to do anything which is in violation of the law, and they or their agents then seize his lands to open the road, Chancery will, no doubt, listen to his complaint.

Parham vs. The Justices, &c. Decatur County.

[8.] Again, the injunction is claimed because the reviewers appointed by the Court were not impartial but interested persons. The specification as to one, who by the by it is admitted in the bill did not sign the report, is, that he keeps a grog-shop on the line of the new road, and his custom would be increased by opening it. We cannot presume partiality from these facts. As to the other two, it is charged, that one has but recently come. into the County, and signed the petition for the new road-the other was a main agent in getting up the petition, and also signed it. The road cannot be arrested on these grounds. The law directs, that the Court appoint three discreet and proper persons, residing in the neighborhood where the road is intended to pass, to make the review. We are to presume that they are discreet and proper persons, until the contrary appears. An interest, to disqualify them, must be shown to be an immediate, direct interest in the laying out the road, as distinguished from that general interest which each citizen has in a highway. There is no charge of fraud or collusion.

[9.] It is also charged, that it does not appear from their return, that they were sworn. The law requires them to be sworn, and it were better that that fact should appear on the return. The bill does not charge that they were not sworn. In Equity, without such allegation, complainant is not entitled to relief on that score.

Let the judgment be reversed, and the motion for the injunction be granted, so far as that part of the proposed road is concerned which is laid out through the unenclosed lands of the complainant.

Harrison and another vs. Young and another.

No. 67.-SAMUEL HARRISON, administrator, &c. and another, plaintiffs in error, vs. EDWARD B. YOUNG and another, defendants in error.

[1.] On an appeal to the Superior Court as to the amount of damages assessed by appraisers appointed by the Inferior Court, under a special Statute, the party originally moving in the case below, is entitled to open and conclude.

[2.] Proof of seven years' regular and uninterrupted usage of a public ferry in this State, is prima facie evidence of a prescriptive right.

[3.] A grantee, in this country, takes nothing by implication, but is confined to the terms of his charter.

[4.] The value of land taken for public use, is not restricted to its agricultural or productive qualities, but inquiry may be made as to all other legitimate purposes to which the property could be appropriated.

[5.] Grants to lands on water-courses from the State, with the appurtenances, convey no right of public ferry. The right of private ferry passes with the fee; and for any interference with this, the owner is entitled to compensation.

[6.] An appeal to a Special Jury, under the Act of 1837, incorporating the Irwinton Bridge Company, carries nothing but the question of damages. [7.] Where testimony is suffered to go to the Jury without objection, and no effort is made to withdraw it from their consideration, it is too late, after the argument has closed, to call upon the Court to charge the Jury that it was illegally admitted,

Appeal from an award, in Randolph Superior Court. Tried before Judge WARREN, October Term, 1850.

By an Act of the General Assembly, passed in 1837, incorporating the Irwinton Bridge Company, for the purpose of erecting a bridge across the Chattahoochee River, it was provided, that the board of directors might take such parcel or parcels of land as they might deem necessary for the abutments, &c. of their bridge; "and in case of disagreement between the owner or owners of said land and the board of directors, in regard to the damages or price of such land, it may and shall be lawful for the board of directors to appoint one disinterested freeholder, and the owner or owners to appoint another disinterested free

Harrison and another es. Young and another.

holder, as appraisers, and the Justices of the Inferior Court of Randolph County shall appoint another disinterested freeholder, **** all of whom shall be sworn, by an officer authorized to administer an oath, to make and return to said Court, a just and impartial valuation of the damages or value of the land thus required by the said corporation, and their award shall be in writing, and signed by at least a majority of the said appraisers, which shall be held and taken as a judgment for the amount against the said corporation, and shall be enforced by an execution from the said Inferior Court; and the plat of said land, with the award, shall be recorded in the said County of Randolph, in the same manner that deeds are *** Provided, if either party shall think proper, he, she or they may appeal to the Superior Court of said County, and have the damages ascertained by the verdict of a Special Jury, and their decision shall be final."

Edward B. Young, and John McNab, Intendant, the assignees of the corporation, having disagreed with the plaintiffs in error as to the valuation of the land on which the eastern abutment of the bridge was situated, each party and the Inferior Court appointed an appraiser-two of whom subsequently made an award-the third dissenting. From this award the plaintiffs in error appealed; which appeal came on to be tried at the October Term of the Superior Court of said County, 1850.

When both parties had announced themselves ready for trial, Counsel for plaintiffs in error insisted that they, as plaintiffs and appellants, were entitled to open and conclude the case, and moved the Court that they should be allowed to proceed with their evidence. The Court overruled the motion, and this is the first ground of error assigned.

Counsel for plaintiffs in error then moved, as a preliminary motion, that the whole proceeding should be quashed, on the ground, that the alleged award was not the award of the three appraisers, but of only two of them-the other expressly dissenting. The Court overruled the motion, and this decision is assigned as a ground of error.

The counsel for defendants in error then read in evidence to