People ex rel. Waterman v. Schellenger — 32 N.Y. St. Rep. 353

Majority

p. 353

The People ex rel. Henry Waterman v. N. B. Schellenger et al., Com’rs of Highways.

(Supreme Court, General Term, Second Department

Filed May 12, 1890.)

Headnote

1. Highways — Certiorari—Return.

The return to a writ of certiorari to review proceedings to open highways must give the record only.

3. Same — Jury.

The return showed that the names of all on the jury lists of the town were placed in the hox and twelve drawn, of whom one declined to serve, and the rest were sworn, and the certificate was signed by ten. Meld, that there was no error in the proceedings.

3. Same — Orchard.

A few wild apple and cherry trees along a fence and two prickly pear trees do not necessarily constitute an orchard.

Certiorari to review proceedings to open a highway.

A proper application was made to the commissioners of highways to lay out a public highway passing through the lands of the .relator and of others.

Pursuant to said application a jury of twelve persons was duly drawn and summoned. Eleven of the said twelve were sworn and served, and ten of them certified to the necessity of the said road.

One of the said ten jurymen was J. Madison Rogers, who resided in Greenport, an incorporated village in said town, the inhabitants of which are exempt from any tax to lay out a highway outside the corporate limits.

The relator, in his affidavit upon which the application for this writ was founded, says the road includes within its limits eight of .his fruit trees, o£ more than ten years’ growth.

The return denies that there were eight such trees, and certifies that the only trees of said Waterman standing within said limits are within three feet of a continuous and nearly straight fence on an old boundary line, and are of native or wild growth, and neither budded nor grafted.

That in the first lot of land owned and fenced by said Water

p. 354

man, which is crossed by said highway, there are only two trees (except a small cherry tree, and that more than 150 feet from the road), they being apple trees; the length of the highway through said lot being about three chains and twenty-five links. That on the second and only other lot so owned, and fenced and crossed by said highway, there are a small English cherry tree, a wild cherry tree, and two puekery pear trees, and these are all the fruit bearing trees standing thereon. That the said trees are not as a whole nor in part an orchard on either of said lots, or when taken together.

The only questions which arise upon the papers are :

1st. Whether the fact that Eogers signed the certificate made the certificate void, the respondents claiming that he was a proper juror, and if not, then there were nine others who certified, which is all the statute- requires.

2d. Whether the relator’s trees constituted an orchard.

Payne & Benjamin, for relator; Albertson Case (J. H. Tuthill, of counsel), for resp’ts.

It is not the object of a writ of certiorari to-review proceedings to open highways that the return should state facts outside of those -which show jurisdiction. The return must give the record only. In this case the record ‘‘ properly included the application, the certificate of freeholders and the order of the-commissioners, or at most a history and recital of all the official acts of the commissioners in the course of the proceedings. People v. Wheeler, 21 N. Y., 82 . The return shows no error in the proceedings. The jury was drawn in the manner required by law. The names of all persons on the jury lists of the town were put in a box and a jury of twelve drawn therefrom. One person declined to serve and was not sworn and no objection was made to any other person. Ten of the jurors signed the certificate. The commissioners, therefore, made the order laying out the road.

The return does not show an orchard, if it is proper that the commissioners should determine that question..

There are a few wild apple and cherry trees along-the fence and two prickly pear trees. The apples are wild natural growth trees- and the return states that the trees do not constitute in whole or in part an orchard.

The finding of the jury and the decision of the commissioners upon the question should be upheld. People ex rel. Cooke v. Com’rs of Highways, 57 N. Y., 549 .

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.