Palmer v. Clement

Cooley, J. To the proceedings in laying out a private way the relator, over whose lands it was laid, makes several objections: 1. The petition was not sworn to. But this objection, if valid, was waived by proceeding to strike a jury without ■objection. 2. Several of the jurors summoned had sat in other and ineffectual proceedings by the petitioner to obtain a right of way to reach the same lands which it is intended to reach by the private way now proposed. If this was a good objection to the jurors, inasmuch as it appears the relator knew all the facts, it ought to have been taken before they were sworn; but it was not. It must be. deemed waived. 3. The venire for the jury instead of being returnable ■“ forthwith,” as the statute seems to contemplate — -Public Acts, 3881, p. 311- — -was made returnable the next day at 1 o’clock. This was practically forthwith and sufficient. 4. On the return of the venire, one juror failed to come, ■claiming a statutory exemption. The constable thereupon wrote down three names, the petitioner struck off one, and the commissioner called on the relator to do the same. Delator told thé commissioner — as the latter returns — -that he did not care which name was struck off, and the commissioner might strike one off himself, which he proceeded to do. Whether this was strictly correct or not, it was good under the circumstances as against relator. 5. It is claimed that it appeared in the case there could be no necessity for the jury because it appeared affirm [47] atively that petitioner had a right of way to his lands which was to continue until May 1,1882, which was after the time when these proceedings were taken. But it does not clearly appear that the one way answered all the purposes to be .accommodated by the other, and if it did, we do not think petitioner was bound to wait until his existing right was terminated before instituting proceedings for a substitute, lie might move, we think, a reasonable time in advance of the exjnration of the existing easement; he need not wait till he had no way at all. The writ will be quashed with costs' against relator. The other Justices concurred.