Crane v. Camp

Huntington, J. The plaintiffs except to the ruling of the judge at the circuit, on several points, which appear on the motion. 1. That the justice {Camp) had power to appoint the appraisers, notwithstanding he was an inhabitant and resident of the town of Sharon, and owned property which was legally taxable, and actually taxed there. It was urged, that as the town was liable to pay the damages assessed by the appraisers, {Stat. tit. 48. s. 11. p. 268.) he was disqualified by the statute {tit. 21. s. 38. p. 148.) which enacts, that “whenever there shall be so near a relationship between any judge or justice of the peace, and any party in a civil action, as between father and son, by nature or marriage, brother and brother in like manner, uncle and nephew in like manner, landlord and tenant; or whenever any judge or justice may be liable, in any manner, to contribute, out of his estate, to the damagesj cost or expenses of any action ; or whenever he may receive a direct pecuniary benefit, by the determination thereof; in all such actions, the said judge or justice shall be disqualified to aet as judge or render judgment.” Independent of the practice, which we believe to have been general in this state, sanctioning the act of the justice in this case, and without relying on the words of the former statute, which authorizes the appointment by “ a justic^of the peace,” it is a sufficient answer to this exception, that this court have repeatedly held, — 468 — that the justice, in proceeding's of this nature, acts ministerially, not judicially. This point is not now open to discussion, at least under the peculiar circu Distances of this case. Tweedy v. Pickett, 1 Day 109. Fox v. Dills, 1 Conn. Rep. 295. Betts v. Dimon, 3 Conn. Rep. 107. If such be the character of the act, it is obvious the justice was not disqualified, by the statute, to appoint the appraisers. They were inhabitants of an adjoining town, were freeholders, and indifferent between the parties. The record shows them to be such ; and if the fact were otherwise, the plaintiffs would have been permitted to show it. The cases cited, by the plaintiffs’ counsel, reported in 5 Johns. Rep. 133. 9 Id. 260., and the authority of Burn’s Justice, are not analogous to the present case; and if they were, cannot controul the decisions of this court, in the cases to which we have referred. 2. That reasonable notice, (if any notice was necessary) was given to Bennett, residing in the state, of New- York, over whose land the highway was laid, that the select-men would proceed to examine, and if needful, lay-out the same. The exception taken to this opinion of the judge, admits of distinct answers. The statute, (tit. 48. s. 11. p. 268.) enacts, that “the select-men of the respective towns, or the major part of them, may lay out such public highways or private ways, as they shall judge needful, within their respective towns ; first giving rsasonable notice to the owners of the land through which the same are to be laid out, or leaving such notice at their place of abode, if within this state, to be present, if they see cause, at the laying-out of such ways.” The select-men, in their report, state, that they “ gave notice, in writing, by mail, to Hiram Bennett, of Monticello, in the state of New- York, to be present at the laying-out of said way, and show reasons, if any, against the laying-out of said highway,” &c. It sufficiently appears^ that reasonable notice was given to Bennett. It was sent by post; and the statute prescribes no form of notice to inhabitants of other states ; nor does it authorize any court or judge to issue an order of notice. The select-men alone can give the notice, (if any is required,) and if it cannot be given in this mode, there must be actual notice given. Indeed, such is the claim now made by the plaintiffs. If it can be sustained, it is very apparent, that serious impediments may exist to the laying-out of highways by the select-men, and much unneces — 469 — sary trouble and expense be incurred. The owner may re- ■ , . , side at a great distance, or in a foreign country, or his place residence may be unknown. In all such cases, the proceedings must be suspended, until he has actual notice that they are pending, if the argument urged at the bar is to prevail. It would certainly require high authority to induce us to yield our assent to it. And there is no necessity for requiring personal notice in cases of this kind. The laying-out of highways is matter of notoriety. Every non-resident owner of land, it may be presumed, has employed some person to take the oversight of it, through whom notice in fact may be given. And if the owner shall declare himself aggrieved, by the laying-out of the highway, the statute provides, that it shall not be laid open or occupied until the expiration of twelve months after it is laid out, that he may apply for relief, in the manner specified, and also have time to fence and secure his inclosure. The statute also enacts, that within eight months after the highway is laid out, such aggrieved person may apply to the county court, and such proceedings may be had, as will afford him an opportunity to show that the way is not of common convenience and necessity, or that the damages assessed to him, ought to be increased ; and adequate relief may thus be given, if he is entitled to it. It seems to us, therefore, that no principle of justice demands of us to adopt a rule requiring actual notice, where the statute has not prescribed it, where theinconvenien. ces resulting from it, would be so numerous, and where such ample provisions are made to remedy any injustice which might arise from the want of actual notice. Besides, such a rule would give to non-residents notice much more perfect and complete than that which is required by the statute, to be given to residents. The latter must be satisfied with notice in fact, or leaving it in writing at their usual place of abode, while the former, by judicial legislation, would be entitled to personal notice. We cannot suppose the legislature intended to confer such a privilege upon non-resident owners ; nor has any statute given it. If they are to be notified, all which can be demanded, is, that the notice should be given in a reasonable manner, and in a reasonable time. The King v. The Justices of Worcestershire, 2 B. & A. 228. We think this was done in the present cage. The notice was sent by post, a mode both usual and safe, and well adapted to convey the — 470 — necessary information, with reasonable speed and certainty of .being- received. It is, in most cases, the legal mode of transmitting notices of the dishonour of bills and notes ; and is frequently adopted, by the judges of this court, in the orders of notice, which the law authorizes them to give. In the absence of all proof to the contrary, we are bound to presume the notice was sent, so as to give the non-resident owner reasonable opportunity, either in person or by his agent, to be present at the laying-out of the highway. But the statute makes no provision for any notice to nonresident owners, in a case like the present. The notice of which it speaks, is confined, in terms, to owners “ within this state.” And we can easily perceive why it was so limited. It was foreseen, that insuperable difficulties might arise from requiring notice to be given to all the owners. Their residence might be unknown; or they might reside where it would be impossible to give them notice, within any suitable time; and thus it might become impracticable to have a road laid out, however necessary and convenient it might be for the public. It was also well known, that in most, if not all cases, the nonresident owner would employ an agent to take care of his lands, to whom notice might be given ; and that the owner of the land would not be divested of the fee, by the laying-out of the highway, an easement only being created in it. These were, probably, some of the reasons which induced the legislature to confine the notice to owners within this state ; but whatever the reasons may have been, it is obvious they have so limited it; and as neither the legislature have required notice to be given to non-resident owners, nor any practice with which we are acquainted, sanctioned it, we do not feel any disposition, had we the power, now for the first time, to require it. 3. That it was unnecessary to give notice of the time and place when and where the appraisers would be appointed, and when they would meet to discharge the duties imposed on them. The opinion of the judge on this point, was correct. Such notice is not demanded, by any law or practice known to us; and we perceive no good reason why it should be required. We have been referred to the cases of The Corporation of New-York, v. Manhattan Company, 1 Caines’ Rep. 507. and Owners of grounds, &c. v. Mayor, &c. of Albany, 15 — 471 — Wend. 375., as supporting the second and third exceptions taken in this case. Upon examination, we find they have no-bearing upon the case before us. It is presumed the laws of Neio-York require notice to be given of the application named in the first case cited, although no particular form is specified, and the point decided was, that the notice which was in fact given, was not sufficiently definite as to time and place, and was, therefore, “irregular.” The case of The Commissioners of Highways of the Town of Kinderhook v. Claw & al. 15 Johns. Rep. 537., was also cited in support of the exceptions taken by the plaintiffs. In that case, it appeared, that an appeal from the decision of the commissioners of highways, had been made to three judges of the court of Common Pleas, pursuant to the statute, who proceeded to hear the appeal, and reversed the decision of the commissioners, without any notice to them. The statute did not, in terms, direct notice to be given. The supreme court held, that notice was necessary, because the duty imposed upon the judges, was strictly judicial ; and where it is judicial, the general principle is well settled, that both parties are entitled to be heard, and notice to both is indispensably requisite. Painter v. Oil Gas Light Co. 3 Adol. & Ell. 433. It is difficult to perceive any analogy between the judicial act of a court, and the act of a justice appointing appraisers, and their act of appraisal. The case cited much more resembles the proceedings under our statute, by the county court, which are in the nature of appeals from the doings of the select-men in relation to highways ; (Slat. tit. 48. s. 13. p. 271.) and where notice is required to be given to the select-men, and which would be necessary, on general principles, without the aid of a statute provision. The peculiar propriety in requiring notice to be given in appeals to the judges of the court of Common Pleas, from the commissioners, under the highway act of the state of New- York, exists in reference to petitions for a review of the proceedings of selectmen brought to the county court, under the highway act of this state, and is well expressed, by the court, in the case cited. They (the commissioners or select-men) act in the discharge of a public trust; and it is to be presumed, in strict conformity to all the requirements of the statute. An appeal to three judges, opens the whole matter; and if the proceedings of the commissioners are liable to be reversed without notice, upon the — 472 — mere ex parte allegations and proofs of the plaintiff, the proba- . bility is, that their determinations would be overturned in every instance. We have not thought it necessary to refer to the facts appearing on the motion, that the select-men and Bennett were unable to agree upon the amount of damages sustained by him, in consequence of the location of the highway over his lands, and that he availed himself of the statute provision to obtain a re-assessment of the damages, awarded by the freeholders appointed for that purpose, by the justice, and which were considerably increased. The opinions expressed by the judge who tried the cause, do not require the aid of these facts to sustain them. They have not, however, been overlooked by us ; and in a doubtful case, might be important to show, that some of the exceptions which were overruled, have no foundation in fact. It might be reasonably inferred, that Bennett was present, in person or by agent, at the laying-out of the highway, from the statement made by the select-men, that they and Bennett were imable to agree upon the amount of damages sustained by him. And his petition, with the proceedings of the county court thereon, show, that he obtained a larger sum as damages, than the amount originally awarded to him. We feel no disposition to aid him in any speculation under the colour of legal proceedings. It is probable this controversy would never have arisen, had the re-assessment of damages been satisfactory to him. Having availed himself of the remedy secured to him by law, he ought to be contented with it, and not be indulged in treating it as nugatory, or binding, as his interest or pleasure may prompt. This would be, in effect, to enable him to make use of the law securing him in his just rights ; and, after a fair and just determination of them, to allow him to yield obedience or not, as his own judgment might dictate. We do not, however, wish to be understood as deciding this case upon these grounds. We consider it embraced by broader and more general principles, to which we have referred, in the opinion which has been expressed. There is no ground on which this motion for a new trial can be sustained ; and it is, therefore, denied. In this opinion the other Judges concurred. New trial not to be granted.