In re Petition of Lee

• Citation: 58 A. 258,20 Del. 576
• Court: Court of General Sessions of Delaware
• Decision Date: 03 October 1903
• Parties: In re PETITION OF BENJAMIN R. LEE, et. al., to change the course of a PUBLIC ROAD IN PENCADER HUNDRED

58 A. 258

20 Del. 576

In re PETITION OF BENJAMIN R. LEE, et. al., to change the course of a PUBLIC ROAD IN PENCADER HUNDRED

Court of General Sessions of Delaware, New Castle County

October 3, 1903

Court of General Sessions, New Castle County, September Term, 1903.

A petition was filed by Benjamin R. Lee and others, at this term, to change the course of a public road in Pencader Hundred. Said petition set out, inter alia, the following facts:

"That there is need of a change, in a part of a public road in said Pencader Hundred for the convenience of the general public said public road leading from Newark to Delaware City. The change needed being that part of the said public road beginning at or near where it crosses the right-of-way of the Newark and Delaware City branch of the Philadelphia Baltimore and Washington Railroad Company at or near what is commonly known and designated as Dayett Station; said public road continuing in a southeasterly direction on the easterly side of the said right-of-way of said railroad company until it reaches a point at or near where the said public road again crosses the right-of-way of the said railroad company at or near what is commonly known and designated as Kenney Station. The object of the above change being to lay out the public road on the westerly side of the said right-of-way of the said railroad company, thereby making the public road safer, shorter and better."

* * * *

The return of the commissioners followed the description of the road as given in the above petition.

Joseph P. Nichols, one of the owners of the land affected by vacating and changing said public road, filed and relied upon the following objections to the record and return:

"No 4.--That Morris D. Crossan, one of the persons named to lay out and change said public road described in said petition is not a suitable person to act as one of said commissioners, he being unacquainted with the locality, and being a resident of Wilmington Hundred, and was not and is not a freeholder.

"No 5.--That the petition fails to describe with reasonable precision, the termini of said public road.

"No 6.--That the petition fails to describe with reasonable precision, the place of beginning of said change in said public road.

* * * *

"No. 8.--That the return fails to state what portion of the costs the persons who enclose the vacated public road ought to pay, respectively, and the same is not set out in the return, as by law required."

Cooch, for petitioners:--I move that the above objections to the return of the commissioners be quashed and set aside, and that the return be confirmed for the following reasons:

That the objections do not ask that the return be quashed, nor is an application for review contained therein, and none has been filed within six days after the return to the order as required by law.

Rev. Code, Chap. 60, Sec. 7; Rule II, Sec. 2, Rules of Court Gen. Sessions.

That the said objections fail to allege any injury or damage to the said Joseph P. Nichols, or how he is interested in, or affected by said return.

Rev. Code, Chap. 60, Sec. 7.

That the said Joseph P. Nichols has failed to pay the costs of the proceedings immediately preceding the filing of his said objections as required by law.

Rev. Code, Chap. 60, Sec. 10.

That the said objections are not supported by affidavit, other than that of the said Joseph P. Nichols, the party by whom the objections are made.

Rule II, Sec. 2, Rules of Court Gen. Sessions.

That the said new road, as laid out by the commissioners, does not pass through or along the land owned by the said John P. Nichols as appears by the proceedings. He is not, therefore, interested in, or affected thereby.

When the grounds of the exceptions are not sustained, the Court will overrule the exceptions and confirm the return.

Hickman's Case, 4 Harr., 580.

Award of referees should stand unless it is so wilfully or grossly wrong as to shock the Court.

Bailey vs. England, 1 Pennewill, 12.

The objections are answered, according to number, as follows:

No 4.--Is insufficient in law and untrue in fact. It is...