Golahar v. Gates

Scott, Judge, delivered the opinion of the court. Golahar, as road overseer, instituted this proceeding in a justice’s court against Gates, under the 59th and 60th sections of the act concerning roads and highways, approved 26th March, 1845, for obstructing a highway. The cause was taken by appeal to the Circuit Court, where, on a trial, there was a judgment against Gates, on which he sued out $iis writ of error. 1. Although, on an indictment against a road overseer, -it is sufficient to show that the road, whose want of repair has caused the prosecution, is used as a public highway, yet, when an individual'is prosecuted for obstructing a public way over his own land, it is competent for him to show that his property has not been condemned for public use in the manner prescribed by law. It is the doctrine of this court that, if the rights of any person are compromised by any proceedings to which he is no party, and of which he has no knowledge, and Consequently from which he can take no appeal, he may, in aocollateral action, impeach the validity of such proceedings, and have their nullity judicially declared. The road, for whose obstruction this proceeding was instituted, had been but recently opened. It passed over the defendant’s land, and the commissioners appointed to make the review returned the fact that he did not give his consent to the opening of the road. None of the steps required by law were thereupon taken by the county court, in order to have his land condemned; but that body proceeded as though his consent had been lawfully obtained. It is obvious that, if such proceedings arc tolerated, a person may be deprived of Ms property against his consent, without the least color of authority. Under such circumstances, to hold that he could not assert the nullity of the proceedings in a collateral action, would be to deprive him of all redress whatever. Judge Ryland concurring, the judgment will be reversed.