People ex rel. Ayres v. Richards

• Decision Date: 22 January 1878
• Citation: 38 Mich. 214
• Court: Michigan Supreme Court
• Parties: The People ex rel. Frederick S. Ayres, James S. Ayres and Ebenezer R. Ayres v. Bennett Richards, Highway Commissioner of the Township of Port Austin

38 Mich. 214

The People ex rel. Frederick S. Ayres, James S. Ayres and Ebenezer R. Ayres v. Bennett Richards, Highway Commissioner of the Township of Port Austin

Supreme Court of Michigan

January 22, 1878

Submitted January 11, 1878

Certiorari to a highway commissioner. The facts are in the opinion.

Proceedings quashed.

Jas. H Hall and Atkinson & Atkinson for plaintiffs in certiorari.

Winsor & Snover and H. B. Carpenter for defendant in certiorari.

OPINION

Campbell C. J.

This is a certiorari to review the proceedings had to lay out an alleged private road over the property of the relators. Various objections are made, and reference will be had to such as are important.

Relators owned and occupied certain premises in the township of Port Austin. On the 13th of April, 1877, Thomas Winsor and Philip Winsor presented to respondent as highway commissioner an unsworn petition requesting him to lay out a private road as therein designated. The application contained no averment of its necessity and no statement of facts indicating any reason why the applicants desired or needed it.

On that day, which was Friday, the commissioner served notice upon Frederick and James Ayres (Ebenezer being in Ohio) that on Monday morning (the 16th), at ten o'clock, they should attend at his office for the purpose of striking a jury to determine as to the "necessity or propriety" of such road.

At the time and place appointed, the commissioner designated the sheriff as a disinterested person to write down the names of eighteen disinterested freeholders. James S. Ayres was present at the hour appointed, but left and returned in about an hour and a half. The sheriff made out a list and after waiting about an hour, the applicants were allowed to strike off three names, and the commissioner struck off three for the land owners. The jurors were sworn to examine into the "necessity and propriety" of the proposed road, and in case of a decision that the road was necessary, to appraise the damages.

When the jury had appeared, and before they were sworn, relators appeared by attorney and made objections and asked to have a new jury, which was refused. He asked an adjournment or to have the proceedings stand open, which was also refused.

The jury, as appears from the return, proceeded to view the premises. It does not appear distinctly that any legal evidence was before the jury. Upon this the return--though perhaps not intentionally--is evasive, as the question was distinctly raised by the petition; it states simply that such evidence as was offered was received. The commissioner himself makes return of some facts, which are not stated to have been proven before the jury, and which he of course has no authority to determine. But such as they are they show the manifest impropriety of some of the transactions and partially corroborate the complaints of relators. The only reasons which he mentions as existing for the road are that it is important as a means of access to a village plat. It appears also that at the time of these proceedings the proposed road ran over a grave yard, which is unlawful (Comp. L., § 7713). The return says that "the evidence of any graves over the line of the road applied for was about obliterated. But the applicant had obtained permission from the friends and relatives of the deceased to remove the three graves referred to, and did so remove to the new township grave yard." This finding of permission and subsequent removal is not one which can be proved by the commissioner's statement, but it shows plainly enough that at the time of the action of the jury they depended on the promise of the applicants, and that there was then a grave yard on the premises.

It...