Opinion
(July Term, 1811.)
Upon an appeal from the county court in the case of a petition under the act of 1809 for overflowing lands by the erection of a mill, the jury in the Superior Court must meet on the premises.
THIS cause originated by way of petition to recover damages for overflowing the plaintiff's land by the defendant's millpond, etc., under the act of Assembly in that case provided. The proceedings upon the petition have been regularly had, and a verdict of the jury returned to the last county court of Warren in favor of the defendant; upon which verdict the court pronounced judgment against the plaintiff for the costs of the suit, from which verdict and judgment the plaintiff appealed to the Superior Court of Warren. The question for the decision of the Supreme Court is whether this cause is to be tried at bar, or whether a writ is to issue to the sheriff to summon a jury and try it again upon the premises. (27)
The act of 1809 which gives the mode of redress by petition now pursued declares that either party shall be entitled to an appeal to the Superior Court; but it is silent as to the mode of proceeding in the Superior Court. It does not direct whether the jury who are to assess the damages shall assess them at bar or on the premises. The act of 1777, commonly called the Court Law, sec. 82, declares that every plaintiff or defendant dissatisfied with any judgment, sentence, or decree of the county court shall be entitled to an appeal; and section 84 further declares that if the trial of the county court was of an issue to the country, a trial de novo shall be had; and if on a hearing of a petition, etc., a rehearing. In other words (as I understand it), that the same mode of trial shall be observed in the Superior Court as was directed in the county court; and this I should take the rule to be in all cases like the one before us, where an appeal is given to either party, without saying more. If the party appeals from a question of law, the Superior Court will decide it; if from a question of fact, it is the province of a jury to decide it.
In the case now under consideration the appeal seems to have been from the verdict of the jury. That jury gave their verdict on the premises, agreeably to the directions of the act of 1809. They were directed to go upon the premises to be the better enabled to fix upon the proper quantum of damages. If, then, a jury convened under the authority of the county court must go on the premises for that purpose, there is the same necessity for a trial on the premises when it is to be had as to facts in the Superior Court. Where the sole question is as to the quantum of damages, a view of the premises is as necessary and as indispensable for the one jury as the other. I therefore think the trial by jury, in both cases, should be on the premises.
NOTE. — The law in this respect is altered by the act of 1813 (see 1 Rev. Stat., ch. 74, sec. 17).
(28)