Kent v. County Commissioners for County of Essex

The county commissioners having viewed certain land whereof husband and wife were seised in fee in right of the wife, afterwards located a road over the same, and assessed damages for the land so taken, and ordered the damages to be paid to the husband, not knowing that he had deceased ; and upon an application for a mandamus to the commissioners, to show cause why an order should not issue to the county treasurer to pay over the damages to the widow, it was suggested that the location might have been made in the lifetime of the husband ; whereupon the Court directed that notice of such application should be given to the administrator on his estate, to appear and show cause against the claim of the widow.

The petitioner represents, that the county commissioners, having viewed a certain road in Newbury, afterwards, at their July term 1829, located the same over a parcel of land owned by the petitioner, and assessed damages for the land so taken, in the sum of $ 130, and ordered the damages so awarded for her land to be paid to Jacob Kent, who was not the owner of the land at the time of the view nor at any time since ; and that the sum so awarded remains in the hands of the treasurer of the county ; and the petitioner therefore prays that an order may be issued to the county commissioners, to show cause why an order should not be issued to the treasurer of the county to pay over the same sum to the petitioner. It was stated that the petitioner was the widow of Jacob Kent, and that certain land over which the road was laid, was her estate in fee ; that when the commissioners viewed the land, Jacob Kent was living, but that when the location was actually made, be had deceased ; that this fact being, however, unknown to the commissioners, they awarded the damages payable to the husband. The commissioners did not directly deny the right of the petitioner, but they doubted whether they had any authority to alter an award of damages once made.