Spray & Barnes v. Thompson ( 1859 )

WoodwARD, J.

The first question made, and the one principally discussed, is whether the writ of certiorari lies.

The statute (Code, sec. 1965) provides for it, in cases where there is no other plain, speedy and adequate remedy. If, then, there is another remedy, answering these requirements, this is not the proper one. And why does not appeal lie in such a case ? It is true that the question is not as to the amount of damages assessed, and ordered to be paid by the petitioners, in order to get the road, but it is whether damages should be allowed at all. The claimants of damages do not ask them, upon the ground that any of their land, or other property, has been taken for the road, but because the road is removed away from their mill, near which it formerly ran.

The question is, whether this is such a taking of property —such an injury, as to entitle them to any damages, or rather, any compensation. Would not an appeal take up this question, as well as a similar question in any action? In a ease where damages are given, an appeal embraces, not only the question of amount, but also whether any are recoverable ; and under this, whether the nature of the case warrants them, as well as whether the facts shoAvn authorize them; in other words, both whether the law gives them in such a case, and whether the petitioner deserves them in his case. We think, then, that an appeal would have carried this question to the District Court. And further, the order that the petitioners should pay these damages, in order to obtain the road, gives a sufficiency of private interest, as contradis-tinguished from that of the public.

We, then, necessarily, come to the conclusion, that as an appeal would lie, the writ of cevtiorari does not. This determination leaves no other question for discussion, and disposes of the case. The judgment of the District Court is reversed, and the cause is remanded, with direction to dismiss the writ of certiorari, and remand the cause to the County Court.