Nichols v. Sutton

By the Court. McDonald, J. delivering the opinion. [1.] We are not prepared to sustain the Judgebelow, on all the grounds, on which he refused to sanction the injunction in this case; but on some of them, we affirm his judgment. The petition of Nichols to the Inferior Court, was to alter the [371] location of the road leading from the Loque bridge to the Vandyke bridge. The Court appointed commissioners to examine the matter with instructions that if they found the proposed alteration of public utility, to mark out the same, and report to the Court. The road was marked out and an order passed for the complainant to open it at his own expense. He did open it at great expense, and that was an order to alter the route; it was to open the old road, and the Court cannot say that they meditated a fraud upon the complainant by which he should be forced to encounter great expense, and then be debarred from the right he sought to acquire. [2.] The Inferior Court had jurisdiction of the case, unquestionably, but they cannot-capriciously exercise their jurisdiction to the injury of the citizen. To possess a power is one thing, but to exercise that power properly and legally is another. The Inferior Courts have power to make and alter roads, and when a road is once made or altered agreeably to law, and perhaps, not in strict conformity to law, and the order or judgment of the Court, in respect thereto, is unreversed, or not revoked according to law, the road so made or altered, must stand as established* The order of the Inferior Court complained of in the bill, is not an order to make or alter a road, but to take measures to have all obstructions removed from a certain road, and to have it put in good order and repair. If, by a prior order of the Court, that road had ceased to be a public road and the right of occupation thereby reverted to the owner of the soil, the last order was an order to commit a trespass. If the road was a public road, it became the duty of the commissioners of roads, on being informed of the obstructions, if they did not know of them, to proceed under the act against the person who placed them in the road; and it was the duty of the overseer of the road to cause them tobe removed. Cobb’s New Dig. 949. If the overseer neglect his duty, he is amenable to the commissioners of roads. Ib. 948. The commis [372] sioners are liable to the Inferior Court for their neglect of duty; and in this manner, the Inferior Court have a right to hear and determine matters relative to roads. When they lay out or alter a road, or establish a public road, their authority ceases in regard to the road, except as a tribunal to enforce the road laws and compel officers in subordinate • authority to discharge their duties. In regard to the question as to which of the two is the public road, the last order of the Court leaves it as it found it. [3.] If the first order authorized the complainant to turn the road, and he complied with the terms on which it was granted, the entry of persons on his premises and removing his fences, &c. are trespasses for which they are liable as in ordinary cases. The case made by the hill does not come within the class*of injuries that the law considers irreparable, nor is it of such a nature as requires an answer from the defendants to ascertain the extent of the injury the complainant has sustained. There is an adequate remedy at law. [4.] If the order of the Court had been such as to have made it necessary to complainant to annul it, he might have moved its revocation before the Inferior Court, and if they had illegally refused to revoke it, their decision would have been open to review before the Superior Court. If the complainant had desired it, there was nothing in the way of his having the proceedings of the Inferior Court in passing the order, re-examined by certiorari in the Superior Court; that the proceeding was exparte, is no objection, for in such cases, where a party injured has no notice, the Court would not deny his constitutional right to have errors complained of in the proceedings reviewed, and if any, corrected before the Superior Court. We cannot sanction the principle, that every controversy respecting roads is to be converted into a case for a Court of chancery. Judgment affirmed.