Opinion
(June Term, 1845.)
1. In the case of a petition for the condemnation of an acre of land for the site of a public mill, under our act of Assembly, Rev. Stat., ch. 74, sec. 2, where the county court ordered a condemnation of the land, and refused an appeal from that order to the party owning the land: Held, that the Superior Court was right in ordering a certiorari to bring up the proceedings before them.
2. Although an appeal which is in the nature of a new trial on the facts and merits cannot be sustained unless expressly given by statute, the Superior Court will always control inferior magistrates and tribunals in matters for which a writ of error does not lie, by certiorari to bring up their judicial proceedings to be reviewed in the matter of law; for, in such case, the certiorari is in effect a writ of error, as all that can be discussed in the court above are the form and efficiency of the proceedings as they appear upon the face of them.
APPEAL from UNION, Fall Term, 1844; Manly, J.
Osborne for plaintiff.
Alexander for defendant.
The present defendant, Morgan, filed his petition in the county court of Union County at July Term, 1843, setting forth that he owned a tract of land lying on Rocky River, in the county of Stanly, and also a quarter of an acre on the opposite side of the river, and situate in Union County, and that, except the said quarter of an acre, the present plaintiff, Brooks, was the proprietor of the land lying on the river in Union and opposite to the land of Morgan, situate in Stanly, as aforesaid. The petition stated that he wished to build a public grist mill on the said stream, and that he could not do so, unless he could get one acre of the said land of Brooks, opposite his own as aforesaid. The prayer was for a summons to Brooks, and that the court would order four freeholders to lay off, view and value on oath, an acre of the said land of Brooks, and also an acre of the land of the petitioner opposite, and report their opinion and proceedings to the court.
At October Term, 1843, Brooks appeared by attorney, but (482) put in no answer, and the court made an order appointing four persons "to lay off and value an acre of the land of the defendant in the petition mentioned and report."
At January Term, 1844, the transcript of the record states that the report of the commissioners was filed, but it does not set it forth. The transcript then proceeds as follows: "In this case it is ordered and adjudged that the report of the commissioners be confirmed. Whereupon, it is further ordered that the said report be recorded; and that said Drury Morgan have leave to erect a mill, as prayed for in his petition, on said acre of land, and that he pay the costs of the suit; and thereupon the said Morgan pays down in court for the use of the said defendant, Brooks, the sum of ten dollars, the valuation of the acre of land condemned by the said commissioners." From that order Brooks prayed an appeal, which was refused by the court.
At February Term, 1844, of the Superior Court Brooks moved for and obtained a certiorari to bring up the proceedings, upon his affidavit, in which he stated, besides the refusal of the court to allow him an appeal, that Morgan owned on the Union side of the river, not only one-quarter of an acre, but eighteen acres of land, on which he had erected a mill, which was in full operation at the filing of the petition. In an affidavit exhibited by Morgan, in answer to that of Brooks, he admits that he owned eighteen acres of land on the south or Union side of the river, and that he had a mill on it, the race of which ran through it; but he says he was not able to erect a mill thereon that would be of public benefit or of profit to himself, for the want of some way to get the water off from the wheels into the river again, and that an acre of Brooks' land, as laid off, was essential for that purpose.
Upon the case being called in the Superior Court counsel for Morgan moved to quash the certiorari, because it had improvidently emanated, inasmuch as no appeal was given by law in this case, and therefore the Superior Court could not take jurisdiction of it in any way. The court refused the motion, but allowed the defendant, Morgan, to appeal, and ordered the affidavits and proceedings, hereinbefore (483) stated, to be sent up as presenting the question between the parties.
The Court is of opinion the decision was right. We agree that no appeal lies in such a case for the purpose of a rehearing in the Superior Court, but that the decision upon the facts by the county court and freeholders is final. It was undoubtedly so under the act of 1777, ch. 122, which gave this peculiar proceeding, and which is silent as to allowing an appeal; and the general provisions for appeals in the act of that year, ch. 115, secs. 75 and 77, we have held, do not apply to summary and peculiar proceedings, not according to the course of the common law, but prescribed by statute under particular circumstances. R. R. v. Jones, 23 N.C. 24; Collins v. Haughton, 26 N.C. 420. It is insisted, however, for the appellee in this Court, that under the Rev. Stat., ch. 74, sec. 17, appeals are given "in all cases arising under that act," and that, consequently, this case is included. But we think that section is, by necessary construction, to be confined to those parts of the act which relate to the overflowing of land by mill ponds and the recovery of damages therefor. By the act of 1809, upon the petition of a person aggrieved by the erection of a mill, the damages were to be assessed by a jury on the premises, and an appeal was expressly given to the Superior Court in that case; but it was not provided how or where the trial should be, whether in court, or on the premises by a second jury, convened under order of the Superior Court — which, indeed, would be but appealing from one jury to another, each being unaided by the advice of the court. To remove doubts on that point and effectuate what was no doubt the intention from the first, the act of 1813, ch. 863, was passed "to amend the act of 1808," and, by the second section, it was provided that in cases arising under the said act, the trial of the appeal should be at bar. That is the origin (484) of section 17, chapter 74, Revised Statutes, and shows its true sense. Besides the very nature of the provision shows that it cannot embrace such a proceeding as that now before us; for the act contemplates only the case of an assessment by a jury of damages from the overflowing of land, which requires no view, while the principal duty of the freeholders under the act of 1777 is to lay off an acre of land on opposite sides of the stream, as well as to value them, and to that it is indispensable to be on the spot. The direction, therefore, for a trial at bar by a jury is altogether inapplicable; and it could not be intended that there might be an appeal, in order merely, that the Superior Court should appoint four other freeholders to go on the premises, who would not be more likely to decide there according to the law and right of the case than the first set. And this is put before all cavil by Rev. Stat., ch. 4, sec. 4, which in enumerating the cases, in which there may be appeals, confines the appeal, in cases of controversies about mills, to the single one of dissatisfaction with the verdict of a jury on a petition for an injury by the erection of a mill. We are satisfied, therefore, that Brooks was not entitled to an appeal with the view of entering into the merits of this dispute in the Superior Court; for the Legislature does not contemplate that the decision of the freeholders nor of the justices as to the matter of fact should be annulled by an appeal. And if the only purpose of the certiorari was that of being a substitute for an appeal of that kind, we should hold that it ought to have been quashed upon the appellant's motion, since the county court did no wrong by refusing the appeal. That is, indeed, the ordinary use of the writ in this State, because in almost every case our law gives an appeal, upon which there is a trial de novo or a rehearing in the appellate court, and, when deprived of the right of appeal, the party has a right to a certiorari as a substitute for it. But that is not the only application of this remedy in use here; much less allowed by the common law. It has often been used as a writ of false judgment, to correct errors in convictions and judgments of justices of the (485) peace out of court. But it is not restricted even thus far; for at common law it is, as Mr. Chitty observes, 2 Genl. Pr., 374, "a legal maxim that all judicial proceedings of justices of the peace, upon which they have decided by conviction or order (such as an illegal order for turning the highway or the like) whether at general or special sessions, or individually, and either by general or particular statute, are of common right removable into the King's Bench by certiorari, unless that remedy has been expressly taken away by particular enactment." It is stated that even when a statute says that particular cases shall be finally determined in the quarter sessions, yet that does not out the jurisdiction by certiorari, because the court understands therefrom that it was meant merely that the facts should not be reexamined. Therefore, although an appeal, which is in the nature of a new trial on the facts and merits, cannot be sustained unless expressly given by statute, the Superior Court will always control inferior magistrates and tribunals in matters for which a writ of error lies, not by certiorari, to bring up their judicial proceedings to be reviewed in the matter of law; for in such case "the certiorari is in effect a writ of error," as all that can be discussed in the court above are the form and sufficiency of the proceedings, as they appear upon the face of them. The Superior Court, being our highest court of original jurisdiction, has always exercised the superintending control which the King's Bench has in England, as far as necessary to the preservation of the common right of the citizen. Such a jurisdiction is indispensable in a free country where the principle of arbitrary decision is not acknowledged, but the law is held to be the true and only standard of justice. It never could be intended by the Legislature that summary adjudications of justices out of court, or in session, should, however erroneous in point of law, conclude the citizen; and although the party affected by them may, perhaps, insist that they are void and resist them in pais, or sue those who act under them, it is much better to allow him at once and directly to subject them to revision and reversal if found to be against law. It was, doubtless, upon this ground that the principle (486) came to be incorporated, as a maxim, into the common law of England. It is equally essential to the uniformity of decision and the peaceful and regular administration of the law here that there should be some mode for correcting the errors, in point of law, of proceedings not according to the course of the common law, where the law does not give an appeal; and therefore, from necessity, we must retain this use of the certiorari. Suppose, for example, that the county court had ordered that the original petitioner should have leave to erect a mill on Brooks' land without paying the valuation, or that the order was that the freeholders should lay off and value an acre of the defendant's land, and not one of the petitioner's also, whereby the defendant would be deprived of the privilege given to him by law of getting from the court leave to build a mill, instead of the petitioner; or that the petitioner should pray for the condemnation of an acre of land of the defendant, not lying on the opposite side of the river from the land of the petitioner, but containing a good mill seat on the same side with the petitioner, above or below, and that court should so order; in all these instances it is plain that the order would be in direct violation of the act and of common right, and, therefore, as no appeal is given, it must be the duty of the Superior Court to correct the wrong by superseding and quashing the order. Whether there be any such error in this case we have not the means of judging, nor, indeed, is it open to this court upon the present appeal to say. For the appeal is from an interlocutory order on a collateral motion, upon which the whole record is not necessarily sent up, but only such parts as his Honor thought useful to the question presented for our decision, which is, therefore, confined to that single question. We have not even, in this case, the report of the freeholders, on which the order of the court was founded; so that it is clear it was intended the action of the court should be restricted to the naked point whether the certiorari ought to be quashed quia improvide emanavit, or ought to be allowed for any purpose. And, as we think, clearly it is a proper remedy to correct (487) any error in the matter of law in this proceeding, though in that respect only is it proper, we hold that the decision of the Superior Court appealed from, was right.
PER CURIAM. Affirmed.
Cited: Webb v. Durham, 29 N.C. 132; S. v. Saluda, 30 N.C. 491; Britt v. Patterson, 31 N.C. 201; Commrs. v. Kane, 47 N.C. 291; Hartsfield v. Jones, 49 N.C. 311; Minor v. Harris, 61 N.C. 323; Biggs, ex parte, 64 N.C. 205; S. v. Swepson, 83 N.C. 588; Porter v. Armstrong, 134 N.C. 450; S. v. Tripp, 168 N.C. 154.