| Mass. | Jun 24, 1875
The petition before us was presented to the judge of probate under the St. of 1874, c. 388, § 2, which provides that in any proceedings for the assessment of damages sustained by the laying out of highways or the construction of waterworks for a city or town, “ when it shall appear that any interest is unrepresented by reason of any contingency or other cause by which the owner thereof is unknown or cannot then be ascertained, a guardian ad litem may be appointed by the tribunal wherein such proceedings are pending, to represent such interest, or the judge of probate for the county in which such proceedings are pending may, upon the petition of any party in interest, after such notice as he may order to all persons who, or whose issue unborn, may be or may become interested in such apportionment
The appointment of this trustee is but a preliminary order with a view to secure a hearing in behalf of all possible interests in the matter to be tried. It is not an adjudication of title. The object and scope of the order are to designate a suitable person to represent those interests which are not now so vested that the owners thereof can come in to protect their own rights; not to require the nature and extent of those interests to be defined and determined in advance, and while the parties to whom such inters ests may belong or accrue are not before the court.
If the suggestion that there are or may be such interests appears, to the tribunal to which the application for such an appointment is made, to be frivolous or without reasonable grounds to support it, the application may properly be refused. But where, as in this case, there are reasonable grounds for such suggestion, a representative of those interests should be appointed, in order that, if and when it shall become necessary to adjudicate what those interests are, he may be heard upon all questions of law or fact involved in that adjudication.
For these reasons, without expressing any further opinion upon the question which has been argued at the bar, we are of opinion that the decree of the judge of probate must be reversed, and the petition granted.
That decree appears by the record to have been made pro forma and without argument, in accordance with a practice which is becoming much too common in the lower courts, and which tends to convert this court from an appellate tribunal, as contemplated by the statutes, into a court of original jurisdiction. If the judge of probate had performed his appropriate duty, of judicially hearing and considering the case, the parties and the court might have been spared an argument here upon a question which cannot, as now presented, be authoritatively determined.
Trustee to be appointed.