Creswell v. Comm'rs' Court of Greene Co. , 24 Ala. 282 ( 1854 )

PHELAN, J.

This record contains two distinct final orders or decrees of the Commissioners’ Court Of Greene County, one establishing a public road, and the other granting to John C. Johnson license to keep a public ferry. They were brought up id the Circuit Court by one writ of certiorari, where a motion was made to dismiss the writ. This motion the Circuit Court granted, for two reasons. first, that two distinct decrees or judgments tvere united in one writ; and, secondly, because the petitioners for the writ, Creswell and Monette, were not shown by the record to have any such interest as would authorize them to be heard.

We consider both grounds well taken. There are two final judgments oh decrees of the Commissioners’ Court contained in this record, one for a road, and another granting a ferry license. Although the ferry may be intended to connect the two ends of this toad, the action of the court upon the two matters was as distinct as if the ferry had been in a different part of the county., The Cifcidt Court, therefore, very properly dismissed the certiorari for this reason^ and its judgment must be affirmed. 2 Stew. 169 ; 4 S. & P. 409; 6 Port. 208.

In the second place, we hold, that the interest which will authorise any one to be made a party to these proceedings in the Commissioners’ Court;, must he shown by the record, and must be an interest in property — something capable of individual ownership — and not a mere interest which the party holds in common with the rest of the community. It must relate to him separately as ah individual proprietor, and exist as a private right, which he, as á private man, may vindicate by suit; for, if it be óñly a right which he holds in common with the rest of the community, it is a public right, and is not placed by the policy of the law in the keeping of any private individual.— There is an open mode for vindicating such rights, hut this is pót it. Although, therefore, this record discloses that Creswell hud Monette were made parties to these proceedings, the record does not show that they had any interest, and of course fails to Show that they had such an interest as would give them any right tó be made parties. For this reason, also, the certiorari should have been dismissed. On these points see 11 Ala. 245; 15 ib. 134; 18 ib. 694; 22 ib. 484.

We must here dismiss the ease, without considering the main questions upon which our judgment is elicited, both by the argument and the assignment of errors; but we|deem it most proper, as a general rule, not to hazard an opinion, when it is a mere opinion of the court on the question, and does not settle the law of the case.

Let the judgment of the Circuit Court be affirmed.