63 W. Va. 498 | W. Va. | 1908
Invoking the provisions of sections seven, eight and nine of chapter 60 of the Code, Robert Green moved the county court of Monroe county for the appointment of three disinterested persons to ascertain the value of a fence alleged to have been built by him between his land and the land of James N. Bowyer, and the proportion thereof to be paid for by the latter. Bowyer appeared and resisted the motion, but the appointment of such persons was made, for the purpose aforesaid, the county court reciting in its order, “it appearing to the court that reasonable notice had been given to the said James N. Bowyer, by the said Robert Green, and it appearing further to the court that the said Robert Green had built a division fence between him and the said James hi. Bowyer., and that the said James N. Bowyer has refused to pay any part of the cost of building said fence, and said parties cannot agree upon three disinterested persons to ascertain the value of said fence.” Thereupon, Bowyer filed his xietition in the circuit court, praying a writ of prohibition against the county court, the said Green, and the said appointees, to stay any and all further action
Plaintiff concedes jurisdiction of the county court to make the appointments aforesaid, but contends that it did more than simply make appointments authorized by statute; that it heard evidence and decided matters as set forth above in the recital from its order in the premises, which related to merits of the dispute which the persons appointed were to settle; that it rendered judgment for costs of the motion against plaintiff; and that, in the foregoing particulars, it exercised powers not conferred upon it by said statute? exceeding its legitimate powers. But nowhere is it sufficiently alleged that the persons so appointed are exceeding the legitimate functions given them by statute, or' that they are about to do so. The only allegation in this particular is that they are about to go upon the premises and execute the order appointing them, according to the tenor and effect thereof, which plaintiff says will be merely to fix the value
Now, what is the tenor and effect of the order ? It says that the persons so appointed shall “go upon the premises and ascertain the value of the said fence so built by Robert Green as aforesaid; and the proporition thereof to be paid for by James N. Bowjmrto said Green,” The order must be read in the light of the law which directs them, clearly defines their duties, and limits their jurisdiction. The law authorized them to settle dispute about certain and defined matters, and says that they shall examine the premises and hear proofs and allegations of the parties. We cannot presume that they will disobey the directions of the law or disregard the powers so assigned them. Certain it is that it is not alleged that they will. Because the county court may have examined into matters beyond its province in making the appointments is no reason to assume that the appointees will do other than follow the law giving them powers and directions. By the plaintiff’s pleading, we are asked to presume that they will disregard the jurisdiction given them in the premises. Such pleading is insufficient to justify award of the writ. A • petition for the writ of prohibition must clearly and affirmatively show by its allegations that the inferior tribunal is about to pro
Nor can we assume, as it is urged, that, since the order of appointment does not direct and specify notice to be given to the parties of the investigation and action by the appointees, no notice will be given by them. Again we must say that there is, in this particular also, no positive allegation. The petition is content to call attention to the fact that the county court did not direct them to give notice to the parties. Does this say that they will not? We note that the statute is silent in its directions to them on the subject. However, there is implication that they shall give notice, since they are directed to hear proofs and allegations of the parties. But construction in this particular is not now demanded. At any rate, plaintiff cannot assert abuse of power by merely showing and relying upon the fact that the countjr court did not direct notice. Does the law direct it? Why did not the pleader say that they were intending to proceed, or were proceeding, without notice to the parties ? This would have raised the question.
We are not called uppn to define the jurisdiction of persons so appointed, nor to say what import their finding may have. It suffices to say that said provisions of the law will, no doubt, in proper case, be given such construction as will cause them to carry out the evident intent of the law-making power, and at the same time in no way intrude the constitutional rights of parties. Though these provisions have been in our statutes from the early years of the state, no judicial construction has been called for in this Court. Statutes of this character are of earliest origin in many states of this republic, and the policy of such legislation has long received approval by the courts. Tyler on Boundaries and Fences, chapters 30-42. “ It is important to peace among neighbors that the office of fence viewers should be effective in settling controveries about the making and repair of fences; and in order that it may be so, we must not allow them to be embarrassed by rules of practice that are suited only to those who make the law their principal study. Where the statute makes no particular form essential we should not require it. If the duty of fence viewers has been substantially
There is error in the judgment awarding the writ herein, the same is reversed, and the amended petition dismissed.
Reversed.