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T. R. G. E. Co. v. Durham

December 31, 1915

TRUCKEE RIVER GENERAL ELECTRIC COMPANY (A CORPORATION), APPELLANT, V. F. E. DURHAM, RESPONDENT.


Appeal from Second Judicial District Court, Washoe County; John S. Orr, Judge.

Cheney, Downer, Price & Hawkins, for Appellant.

Benjamin Curler and Summerfield & Richards, for Respondent.

By the Court, Coleman, J.:

[1] This is a special proceeding, instituted in April, 1911, by the appellant, to condemn a right of way across respondent's ranch for a power line, pursuant to “An act to regulate the exercise of the right of eminent domain,” being chapter 128, p. 279, Stats. 1907. As provided by the act mentioned, both the complaint and answer contain the names of commissioners proposed to be appointed to assess compensation and damages. After the pleadings were settled, and before trial, the eminent domain act as embodied in chapter 66 of the Revised Laws of 1912 went into effect.

[38 Nev. 311, Page 316]

The act of 1907 provided that the compensation and damages for the taking of property should be fixed by commissioners, while section 5624, Revised Laws, reads:

“Except as otherwise provided in this chapter [66 on Eminent Domain], the provisions of this act relative to civil actions, new trials, and appeals shall be applicable to and constitute the rules of practice in the proceedings in this chapter.”

Section 5818, Revised Laws, provides:

“The repeal of a law by this act shall not affect any act done, ratified or confirmed, or any right accrued or established, or any action, suit or proceeding commenced or had in a civil case, before the repeal takes effect, but the proceedings in such case shall, as far as practicable, conform to the provisions of this act.”

Section 5199, Revised Laws, provides:

“An issue of fact shall be tried by a jury, unless a jury trial is waived. * * *”

There is no provision in chapter 66, relating to eminent domain, which provides rules of practice in the matter of assessing compensation and damages for property condemned; therefore the trial court was justified in calling a jury (Wilmington Canal & Res. Co. v. Manuel Dominguez, 50 Cal. 505), since the general rule against a retrospective construction of a statute does not apply to statutes relating merely to remedies and modes of procedure (36 Cyc. 1213.)

[2] There can be no question but that the legislature may delegate to a jury the power of fixing the compensation and damages, since the constitution of the state is silent as to the method of determining these matters. (V. & T. R. R. Co. v. Elliott, 5 Nev. 358; State v. Rapp, 39 Minn. 65, 38 N. W. 926; Lewis on Eminent Domain, 3d ed. secs. 374, 510.)

[3] It is contended by appellant: (1) That, since these proceedings were commenced when the act of 1907 was in force, the question of compensation and damages must be determined by commissioners, as in that act provided; and (2) that, if respondent was entitled to a jury, he waived the right by his conduct.

[38 Nev. 311, Page 317]

The first contention is apparently based upon the ground that a special statute enacted for a special purpose (as was the act of 1907), when complete in itself, is not repealed, modified, or amended by a subsequent general statute. (36 Cyc. 108.) We do not think the general rule is applicable to the case at bar, because of the fact that the act of 1907 is expressly ...


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