In re Tucker

| Superior Court of New Hampshire | Dec 15, 1853

Eastman, J.

Some of the grounds taken for allowing the certiorari prayed for in this proceeding, are not matters which concern these petitioners. Their grievances may be considered, but not those alleged to affect others. James Welch makes no complaint that he was not notified of the hearing before the commissioners, and it will be time enough to consider whether he has any good cause for complaint, when he shall himself see fit to bring it to the notice of the court. And so also with the seventh reason stated for the issuing of the certiorari. If that objection is not a general statement of the previous ones and has any validity in it, the town is the proper party to act in the matter. As it respects individuals, a certiorari issues ex mera gratia, on petition; Huse v. Grimes, 2 N. H. Rep. 210; and it is to make right their wrongs, and not those of others, that a court will grant it. Neither should it be granted where the court can see that a party has specific provision by law for the wrongs complained of.

This petition is brought by the heirs at law and widow of -Henry Tucker, and the petitioners suggest, in substance,. as ground for granting the certiorari, that no notice of any hearing before the road commissioners was ever given to ■ either of them, although damages were awarded them.. And further, that nothing has ever been paid or tendered to - them for the damages awarded by the commissioners.

It appears by the petition that the only notice served upon any of the petitioners was one to “ Nancy Tucker, occupant of a mill privilege, owner of unknown.” Whether ■ this notice would have been sufficient, had the objections been taken on the coming in of the report, and all the facts been then considered, it is not necessary for us to Say, nor are we prepared to say, as the facts are not before us.

• A writ of certiorari never issues without an order of court, and may always be denied when the application is made after an unreasonable time. State v. Bishop, 3 N.H. 312" court="None" date_filed="1825-11-15" href="https://app.midpage.ai/document/state-v-bishop-8503492?utm_source=webapp" opinion_id="8503492">3 N. H. Rep. 312. It appears to us that the present application is unseasonable, if not unreasonable. The report was accepted in September, 1850, and this petition was not presented until 1853. It comes at a late day, and there is no suggestion of any cause for the delay.

But we do not propose to deny this petition upon that ground, but upon the ground that the statute makes sufficient provision for all the grievances under which the petitioners labor. By the 10th section of chapter 53 of the Compiled Statutes, it is, in substance, provided that any person who had no actual notice of the laying out or altering of any highway, may, within one year after the same shall be opened and made, apply to the court of common pleas, and the court, after due notice to the town and others interested, shall award damages and costs, and issue execution therefor.

This provision may well be regarded as designed to prevent the quashing of the proceedings in laying out roads where reports have been accepted and the roads established; and without deciding to what extent this section of the statute may be construed to go, in curing defects where notices have not been given, we are clear that it may be applied to a case of the kind before us ; and that should this road be opened and made, the petitioners have their remedy for any defect in the award of damages.

All of the petitioners were interested in the mill privilege, as well as the other tract over which the road was laid. The whole property belonged to the heirs and widow of Henry Tucker, deceased. Two of the heirs were minors, and the guardian resided in Boston ; and the commissioners might very likely have found it difficult to ascertain the precise state of the title to the property, and who the owners were, and so gave their notice to Nancy Tucker, under the provisions of the third section of chapter 52 of the Compiled Statutes. That section is as follows : “ Such notice shall be given to each owner in person, or left at his usual place of abode, if he is known and resides in the State, otherwise to the person, if any, who has the care or possession of the land.”

Ignorance of the proceedings of the commissioners cannot be presumed, under the circumstances, disclosed, although it should be conceded that legal notice was not given. The objections stated should have been raised on the return of the report, when, if well founded, they could have been cured by re-commitment. There is no intimation in the petition that the petitioners were ignorant of the doings of the commissioners, and the impression at once suggests itself that these objections have been held in reserve, to be used as occasion might require.

The petition presents, at best, nothing more than an accidental failure to give legal notice, and we have no doubt that the provisions of the 10th section of the 53d chapter of the Compiled Statues, to which we have referred, are ample for such a case.

The position that no damages have ever been paid or tendered to the petitioners for those awarded, can be no cause for a certiorari. The office of a certiorari is to bring up the proceedings in the court below for examination, that they may be affirmed or quashed, and not to enforce any rights growing out of those proceedings. Hopkinton v. Smith, 15 N.H. 152" court="None" date_filed="1844-07-15" href="https://app.midpage.ai/document/hopkinton-v-smith-8504757?utm_source=webapp" opinion_id="8504757">15 N. H. Rep. 152. If the damages awarded are not paid, the petitioners have an indisputable remedy against the town. As well might a court reverse a judgment on error because the damages recovered were not satisfied, as to quash the proceedings in laying out a road, because the amount awarded to a land owner is not paid.

We entertain no doubt that the certiorari should be denied and the

Petition dismissed.