In re of Clear Lake Water Co.

By the Court, Wallace, C. J.: The report of the Commissioners was set aside by the Court below, “for the reason that the same is informal and is not made in compliance with the requirements of the law in this, that the said Commissioners have not assessed ■compensation for each piece of land taken and for each source of damage separately as required by statute.”

If an objection of this character had been taken before the Commissioners and an exception reserved, a motion might have properly been made by the petitioners to" ■set aside the report for the reason assigned. But no .such objection or exception before the Commissioners ■ is pointed out by counsel or found on the record. The Act ■of March 9, 1870 (Stats. 1869-70, page 227,) provides, in substance, that a motion to set aside a report in such a case as this must be based upon some exception reserved before the Commissioners, and that upon the hearing of the motion, “the entire report of the Commissioners, including the testimony and exceptions, shall be deemed a .statement on such motion and may be used and read thereon.” It was the intention of the Legislature that a party purposing to object to the mode of procedure pursued by the Commissioners, should first make his objection to the Commissioners themselves, and thus afford them an opportunity to obviate it, if possible; and should they refuse to [588]do so, to then put his objection and exception of record,, and on return of the report to renew his objection by means of a motion made to set aside the report. But he cannot be permitted to state his objection for the first time in making the motion to set aside the report. In this case, for instance, the statute required the Commissioners to" assess the compensation for each piece of land taken, and for each source of damage separately, “as far as practicable.” It was not objected before the Commissioners that this portion of the statute was being disregarded by them. No motion was made by the petitioners to make the proceedings more specific in these respects. It is only now that the report has been filed and the proceedings are approaching a finality that the objection is, for the first time, taken by motion of the petitioner to set aside the report. The motion should not, under these circumstances, have been entertained.

Order reversed and cause remanded. Remittitur forthwith.

Mr. Justice Crockett, being disqualified, did not participate in the decision.

Mr. Justice McKinstry did not express an opinion.