Dyer v. Lowell , 30 Me. 217 ( 1849 )

Siiepley, C. J. orally.

— It is contended that application for certiorari is not an appropriate remedy in a case like this. But we think it is, although perhaps it may not be the only one.

It appears by the commissioners’ return that they set off 2730 acres, the precise quantity claimed by the petitioner. Their warrant did not require them, nor by their return do they state that they have undertaken, to set off that quantity of average quality or value, or to make a just and equal division as to value. These proceedings were erroneous, because the petitioners’ ownership was only that of 2730 acres in common and undivided. They were therefore entitled only to a division which would assign to them land of an average value with the rest of the tract. • It ought to have appeared, by the oath of the commissioners, that they had so divided it.

Besides, the commissioners assigned to the petitioners a right to haul and land lumber on the co-tenant’s lands, and the right to drive logs there, and use the dam and prescribed the mode of keeping the dam in repair. This they could not lawfully do. If the estate was incapable of division, they should have set off the whole to one of the co-tenants, upon the terms, provided in R. S. c. 121, <§> 25.

It is not necessary that a petitioner for certiorari should be a party to the record, but only that he should be interested in the subject matter, upon which the record acts.

In the statute, there is a special provision for costs against one not named in the record. This must imply the right of such a one to bring this process.

Writ of certiorari granted.