Hewett v. County Comm'rs

• Decision Date: 18 February 1893
• Citation: 27 A. 179,85 Me. 308
• Parties: HEWETT v. COUNTY COMMISSIONERS.
• Court: Maine Supreme Court

27 A. 179

85 Me. 308

HEWETT

v. COUNTY COMMISSIONERS.

Supreme Judicial Court of Maine.

Feb. 18, 1893.

(Official.)

Report from supreme judicial court, Knox county.

Certiorari by James H. H. Hewett, administrator of the estate of Samuel Pillsbury, deceased, against the court of county commissioners of Knox county, to review the judgment of defendant on the petition of the Lime Rock Railroad Company to assess damages for land taken which belonged to decedent Heard on report Judgment affirmed in part

Mortland & Johnson, for petitioner.

C. E. & A. S. Littlefield, for county commissioners.

HASKELL, J. Certiorari to quash the record of the county commissioners of Knox county in assessing damages to land from the location of the Lime Rock Railroad.

To petitions for the writ of certiorari a copy of the record sought to be quashed should be annexed, and notice thereon ordered to the tribunal whose record is sought to be quashed, and, in the discretion of the court, to such persons as may be interested in the result, who may appear and answer and be subject to costs. Rev. St. c 102, § 14. At the hearing three methods of procedure are open to the defense:

First if the record is thought to be sufficient to submit the cause to the court as upon demurrer, then, if the record fails to show jurisdiction on the part of the court entering the judgment, the writ should issue as a matter of right, and refusal would be error, and exceptionable; but if it simply shows inconsequential errors that are harmless, or might palpably be corrected by amendment, the writ should be denied. Hayford v. Commissioners, 78 Me. 153, 3 Atl. Rep. 51.

Second. If the record be defective in not reciting facts that appear from the proceedings, or that were actually adjudged, and omitted inadvertently from the record, to file, under oath, an answer setting up such facts, and the answer is conclusive evidence of the facts thus recited, but not of the legal conclusions to be drawn from them. Levant v. Commissioners, 67 Me. 429; Andrews v. King, 77 Me. 239. If the facts so set up show that an amended record would sustain the jurisdiction of the court over the matter before it, leaving, perchance, only defects that do not materially affect the substantial rights of the parties interested, the writ should be denied, otherwise it should issue; or, if ordered to issue, the court below may send up an amended record according to the facts in the case, (Dresden v. Commissioners, 62 Me. 365; Lapan v. Commissioners, 65 Me. 160;) for when the writ issues the sufficiency of the record returned in answer to the writ must be determined from an inspection of it, (Levant v. Commissioners, supra.)

Third. Matters in estoppel or bar of the writ may be pleaded by way of answer, or included in the answer last before considered. Sometimes such matters appear from the record sent up in answer to the writ, and then operate the same as if interposed by answer. Phillips v. Commissioners, 83 Me. 541, 22 Atl. Rep. 385.

In this case, after hearing upon the petition, the court, being in doubt from the answer as to some of the facts set up in defense, the defendants not being at hand to verify a more particular statement of them, and to give progress to the case, ordered the writ to issue, and, as is within the personal knowledge of the justice who draws this opinion, without prejudice to the defendant's right to return in answer thereto an amended record. Chapman v. Commissioners, 79 Me. 267, 9 Atl. Rep. 728.

The defendants made no formal return of their record to the writ, as regularity in procedure required them to do, but, instead thereof, their original record, with the amendment to it, was introduced in evidence at the trial, and the cause continued on report. No objection to this irregularity is pressed, and therefore the case will be considered as if the record had been returned in due course of procedure.

The first objection to the original record is that the award of damages in favor of the estate of the late Samuel Pillsbury, deceased, does not sufficiently designate to whom they shall be paid. This objection is obviated by the amendment, making them payable to the plaintiff in his official capacity as administrator of the deceased owner of the land.

The remaining objection is that the award of a road as "now used to and from" the kiln as a crossing of a railroad was beyond the power of the commissioners to give, and therefore not binding upon the railroad company, which might obstruct or prevent the use of it at any time; so that damages assessed upon the theory that the road was secure for the future use of the kiln, when it was not, did not give compensation, and cannot be assessed to do so in petitioner's appeal now pending, until the permanency of...