| N.Y. Sup. Ct. | Jul 13, 1869
By the Court,
The writ of certiorari was proper in this case. It is a writ directed, to the judges or officers of inferior courts or tribunals, commanding them to return- the record of a cause or proceeding pending or had before them. In its office of removing final adjudications for review, it possesses all the characteristics of a writ of error under our former system of practice, and performs the same office as to inferior summary tribunals that a writ of error did to an inferior court of record. The common law certiorari, proper, removes only the record, or entry in the nature of a record, of the proceedings of the court below, whereby only the jurisdiction and the regularity of its proceedings are reviewed. But when the writ is authorized by statute, the authority of the court is* not limited to questions of jurisdiction and regularity; it has „power also to examine upon the merits every decision of the court, or officer, upon questions of law, and to look into the evidence, and affirm, reverse or quash the proceedings, as justice shall require.
In 1864 the legislature enacted- that “ if any plank road in Saratoga county, used for six years, should be abandoned, or its charter expire by its own limitation or forfeiture, such plank road, and its right of way, should becomé,- and was thereby declared, a public, highway.” It then made it the duty of the commissioners of highways of the town to take the same measures for appraising the reversionary interest of the owners whose lands were taken for such plank road, &c., as are- required by the statute in relation to the appraisal of damages for laying out public highways, &c.
It is first claimed that this act is unconstitutional, atíd that it came into existence by mistake. We cannot say as to any mistake in its being enacted, but we are quite sure it is not unconstitutional. It “does not seem to be in conflict with any express provision of the constitution, nor an infringement of any natural right. Statutes free from these objections cannot be declared void by the courts. Within those limits the legislative will is sovereign.
It is also claimed that the jury had no jurisdiction to act, because the notice of appeal was not properly served. The statute, to which the act of 1864 refers as a guide for appraising the reversionary interest in cases of this kind, provides, first, for the appointment of commissioners, and then any person conceiving himself aggrieved by their valuation may appeal, by signifying the same by notice in writing, and serving the same on the town clerk and upon the commissioner, or commissioners, and asking for a jury to reassess the damages. The act then provides for drawing twelve persons from an adjoining "town, as jurors; summoning them to attend at a place to be specified; the drawing of six names from the panel;
In 1845 an act was passed authorizing towns to reduce the number of highway commissioners to one. Many towns in the State availed themselves of that privilege. Under that act, persons desiring a reassessment of damages for land taken for highway purposes, were to signify the same by serving a written notice on a justice of the peace of the town, demanding a jury. Said act was amended in 1847, in regard to this matter of reassessment, and fixed as the law now stands. Therefore the fact that some towns, in 1847, had but one highway commissioner, while others had three, would imply an intent and purpose in those words of the amended act, “ commissioner or commissioners,” and force the conviction that the legislature intended, as essential to an appeal in such case, service of notice on each and all the commissioners of highways, as the case might be, rather than on the board.
There are reasons why each commissioner should have notice of an appeal. They can only act when convened as a board, all being present or notified of a meeting. Their official territory is limited, and nearly every case arising for the action of the board concerns the neighbor or relative of one or more of the commissioners, when more than one. If a service upon one were sufficient, it would put it in the power of that one, if any motive existed, by omitting or forgetting to notify his associates, and not appearing himself, to leave the town in default, and allow a jury of reappraisement to be drawn without opposition. But the legislature has said, in very plain words, what is necessary to«be done to entitle an' aggrieved party to appeal; and
• This view of the question of service of notice entirely disposes of the present case; but as the case may come up again, I will examine another question raised.
The matter most discussed on the argument was the basis of appraisement adopted by the jury, viz., in taking into consideration the cost of fencing the road, keeping the fences in repair, and the inconvenience to the use of the land in having to cross and recross such road.
The plank road company had but an easement in their roadway; the fee was in the land owners. On its abandonment, the possession of the land, freed of the easement, would have reverted to the original owner, but for the aforesaid statute. In its wisdom the legislature has seen fit to exercise -its power of eminent domain, and dedicate abandoned plank roads to the public. First, in 1838, but without making any provision for compensating the original owner; again in 1854, without any provision for compensation. For this omission the constitutionality of the acts of 1838 and 1854 was questioned. The act of 1864, under which this proceeding was instituted, avoided that difficulty, by making it the duty of the highway commissioners to have the reversionary interest of the original land owner appraised and paid for.
' What then was the nature and extent of the interest which reverted to the original owner on the abandonment of this plank road ? It is urged that because the
Such was not the legislative intent, nor a fair construction of the statute. All acts should have a reasonable construction, and their intent followed if it can be ascertained from the act.
A reversionary interest is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him. The particular estate granted out by the land owner in this case was an easement for a plank road-bed; on the determination of that particular estate, the land owner was entitled to possession; thus having the fee and being entitled to possession, his reversionary interest, included everything; the soil, the fences thereon, the right of way, (and all the advantages, if any, arising from its former use. It was this .property which the legislature dedicated to the public, and it was this interest which was required to be appraised and compensated for. I am therefore of the opinion that the jury did not err in their basis of estimate, although they may have erred in the value of the items forming that estimate.
Had the appeal from the appraisement of the commissioners appointed by the county judge been served on all the highway commissioners, so as to confer jurisdiction on the town clerk to draw a panel of jurors, a justice of the peace to summons, draw and impannel a jury, and the
James, Rosekrans, Potter and Bockes, Justices.]