Long v. Commissioners' Court , 18 Ala. 482 ( 1850 )

CHILTON, J.

The act of 1832, Clay’s Dig. 506, § 1, provides that “it shall be lawful for the courts of roads and revenue in each county, on the application of any one’or more persons, to grant and establish private roads, not exceeding fifteen feet wide, provided, that they shall not be opened through any person’s plantation, and provided always, that the person or persons petitioning shall be bound to open and keep s.uch roads in repair, and shall pay to the owner of the said land, over which said roads may run, all damages that may be assessed against the petitioner or petitioners, for the benefit of the said owner, in the manner of assessing damages in like cases of public roads,” &c.

The act of 1820 presoribed the mode of assessing the damage done to the owner of lands over which a public road should run, and is the act to which allusion was made by the act 1832. See Toul. Dig. 392, § 2. This act provides, that where a new road is established, the owner of the land, over which such road passes, may, at the next term of the County Court, apply to said court for damages for the injury which he may have sustained by the establishment of such road; and it shall be the duty of such court to cause a jury to be empannelled, to inquire of such damages, in which inquiry the jury shall take, into consideration the advantages accruing to such applicant by the establishment of such road, and give their verdict accordingly.— Laws of Ala. by Toul. 392.

It appears from the record of the proceedings had in the court of roads and revenue, that at the term of said court when the application for this private way was granted, Long, the plaintiff in error, was personally present “and made application for a jury to be appointed, to assess the damage which he would sustain by the road running through his land. Thereupon, seven persons were appointed to view and lay out said road and to as-sess the damage, who were directed to report upon oath, to the next term of said court. Accordingly, on the 20th August 1849, they reported to the court that they had, after being duly sworn, viewed and marked out said road, and they assessed no damage to the plaintiff in error, Long, which report was examined and confirmed by the court.

1. It is insisted that the proceeding was irregular, because the order to lay out the road does not direct that it shall be so laid out as not to pass through the plantation of any person. It is not shown that this was so laid out as to run through a plantation, and we will not presume that it does, for the purpose of invalidating the proceeding. This proviso is a limitation upon the power of the court in laying out private roads, but the order need not show the negative fact that the road runs through no plantation. If the court exceeded its jurisdiction, if the road was so laid out as to run through the plantation of Long, he should have shown this in the court below, in order to insist on the invalidity of the order. But nothing of the kind- is made to appear. As well might it be contended that the order for the establishment of a bridge, a ferry, or authorising the erection of a mill dam, should negative the existence of every fact which would show the Commissioners Court could not properly exercise its power in the given case. It is certainly true that the Commissioners Court of Roads and Revenue is one of special and limited jurisdiction, and that its records must affirmatively show every fact, the existence of which is necessary to confer jurisdiction. — Commissioners Talladega v. Thompson, 15 Ala. 139. This, we think, the record before us does. The court acted upon a petition properly presented. The statute, in respect to private roads, requires no notice to be given, but if such notice were required, it is shown the want of it worked no injury to the plaintiff in error, as he was personally present. The court then having rightfully taken jurisdiction, it is incumbent on the plaintiff in error to show, that it erred to his prejudice, else we cannot reverse.

2. What we have said in reference to the character of the order will equally apply to the objection, that the record does not show that the persons appointed as jurors to view and lay out the road and to assess the damages were qualified to act as such. The jury were empannelled at the request of Long. He raised no objection to the men selected, and we must intend the court selected qualified persons.

3. Neither can the objection that they were not sworn prevail. Their report shows that they proceeded to the discharge of their duty “after being duly sworn,” and the order appointing them requires their report to be made on oath. It was not necessary that any certificate of the oath administered to them should appear of record. The statute does not require it, and such strictness would not comport with that liberal construction, which every statute designed for the promotion of the public good and convenience should receive. — 9 Bacon’s Abr. by Bouv. 254. If the jury were not sworn, as their report states, it was good ground for setting it aside, but we must intend that the plaintiff in error was present when the report was made, as he was present when the jury were designated and required to report at the time they made it. At all events, he might have been present had he so desired, and he should not be heard to raise objections in this court, which he never made in the primary court, and which, if there made, could in all probability have been remedied by supplying the proper proof of the jurors having been duly sworn. This was not, as to Long, an ex parte proceeding. He appeared in court, and procured the appointment of the jury, whose report, for the first time, he seeks to set aside on error. We think the Circuit Court properly overruled the assignments of error, and correctly refused to set aside the proceedings had in the court of roads and revenue. Its judgment of affirmance is consequently affirmed.