In re Tucker

A certiorari, in our practice, is not a writ of right, and issues only upon petition. It can he sustained upon grounds affecting the rights of the petitioners only, and not upon complaints which affect the rights of others. It may issue to bring up the proceedings of the court of common pleas in laying out roads, where sufficient ground is shown, but not to cure errors for which there is a specific statutory remedy. Nor to enforce rights growing out of the proceedings. The petition for a certiorari should be brought as soon as the error complained of is discovered; and it may be denied if the petition is unreasonably delayed. Where the statute provided a remedy for the assessment of land damages to those who should not be notified of the hearing before the commissioners, and it appeared that the petitioners had been but partially notified of the hearing, and that the failure to notify them fully, might well be presumed to have proceeded from accident — Held, that the rights of the petitioners being protected by the statute, a certiorari should be denied.

Petition for a certiorari’, addressed to the justices of this court, at Concord, on the second Tuesday of July, 1853. The petition was as follows:— “ Represent Josephine L. Tucker of Raymond, in said county of Rockingham, single woman, and Gilman PL Tucker, and Abby A. D. Tucker, both of said Raymond, infants, by their guardian, Elbridge G. Dudley of Boston, in the county of Suffolk and Commonwealth of Massachusetts, Esquire, and Nancy D. Tucker of said Raymond, widow; that the said Josephine L., Gilman H., and Abby D., are heirs at law of Henry Tucker, late of Raymond, aforesaid, deceased, and that said Nancy D. Tucker is the widow of said deceased; that a petition of David Griffin and others was filed in the office of the court of common pleas for said county, on the 10th day of August, A. D. 1849, praying for the laying out of a new highway in said Raymond, therein described; that at the term of said court holden at Portsmouth, on the third Tuesday of September, A. D. 1849, said petition was referred to the road commissioners for said county; that such proceedings were had, that at the term of said court holden at Portsmouth, on the third Tuesday of September, 1850, a report of said commissioners laying out a highway upon said petition, was returned and accepted by said court. That the said highway, described in said report, passes over land in said Raymond, which was part of the estate of said Henry Tucker, deceased, in part of which said Nancy D. Tucker has her dower, as widow of said Henry, set off and assigned to her, and in all which said Josephine L., Gilman H. and Abby A. D. Tucker are interested as owners dn fee simple or reversion ; that said highway also passes over land of one James Welch, who was owner thereof in fee simple. That no notice of the pendency of said original petition in said court, or of any hearing before said road commissioners, or of any proceedings whatever, connected with or growing out of said petition, was ever given to said Josephine L., Gilman H., or Abby D., or to the said Elbridge G. Dudley, guardian as aforesaid, or either of them, or to any person for them, or either of them, nor to the said James Welch; that no notice whatever, touching said proceedings, was ever given to said Nancy T. Tucker, except a notice to <: Nancy Tucker, occupant of a mill privilege, owner of unknown which was given her, by said commissioners, to attend a hearing before them. That said highway was laid out over a large tract of land before named in this petition, other and different from said mill privilege, as well as over said mill privilege ; that dam.ages were by said commissioners awarded to Nancy Tucker, in the sum of ten dollars, and to the heirs of Henry Tucker, in the sum of eight dollars and fifty cents, and to said James Welch, in the sum of thirty dollars; that the damages awarded to said Nancy, and the damages awarded to said heirs of Henry Tucker, are entirely inadequate to compensate for the injury to said petitioners, for the damages suffered by them, should said highway be opened. That the public good does not require the laying out or opening of said road, and that the same would not have been laid out, had a full hearing been had by the said land owners. And your petitioners further represent that at the court of common pleas, holden at Exeter, within and for said county of Rockingham, on the second Tuesday of February, A. D. 1852, an information was filed by John Sullivan, attorney general for the State, against said town of Raymond, for not opening and building said highway, and such proceedings were had thereon, that at the term of said court of common pleas, holden at said Exeter, by adjournment from the February term thereof, in May, A. D. 1853, said town was defaulted, and a fine was assessed upon said town, and an agent appointed by said court to open and build said highway ; and it was ordered by said court of common pleas that no execution against said town, for said fine, should be issued until after the term of the superior court of judicature, then next to be holden for said county, at Concord, on the second Tuesday of July, A. D. 1853. And your petitioners further represent that no damages, neither the aforesaid sum awarded to the heirs of Henry Tucker, nor any other damages for the estate of said petitioners, respectively, taken for said highway, has ever been paid or tendered to either of said petitioners, or any person for them, and that no execution has been issued or .moved for against' said town, for any damages awarded as aforesaid. And your petitioners, being aggrieved at the proceedings of said court of common pleas in the premises, suggest to the court here the following errors in the record and proceedings of said court of common pleas. First. That no notice of any hearing before said road commissioners was ever given to said Josephine L. Tucker. Secondly. That no notice of any hearing before said commissioners was ever given to said Gilman H. Tucker, or Abby A. D. Tucker, or their said guardian. Thirdly. That no notice of any hearing before said commissioners was ever given to the heirs of Henry Tucker, although damages were awarded them. Fourthly. That no notice of any hearing before said commissioners was ever given to Nancy D. Tucker, as owner of her land or her estate taken, although damages wrere awarded to her. Fifthly. That no notice of any hearing before said commissioners was ever given to James Welch, a land owner, to whom damages were awarded. Sixthly. That no damages have been paid or tendered to either of said petitioners, for the damages awarded them by said commissioners, and no execution has issued or been moved for against said town, although an agent has been appointed to superintend ihe making of said highway. Seventhly. That said commissioners did not, pi their report, certify the names of the several owners of land, taken for said highway, to whom notice was given personally, or left at their usual places of abode, respectively, or in what manner notice was given to other like owners. Wherefore they pray this court to grant a writ of certiorari, commanding said court of common pleas to certify and return to this court the records of their proceedings upon said petition, and that said records and proceedings should here be adjudged erroneous and void.”