Lull v. Curry

Campbell J.:

Plaintiff having sued defendants for trespass, they justified on the ground that the place where it was committed was a highway which they were opening according to law. The Judge found the facts, from which it appeared that regular proceedings were had to lay out the road and assess the damages on the jfiaintiff’s land, but that no payment of the amount was made to him, and no tender except of an order on the township treasurer payable “ to the owner or occupant, or to the person entitled thereto, for the land so taken;" which be declined to receive.*

The statute allows the road to be opened when the damages have been paid or tendered, or “ an order on the treasivrer of the proper township for the amount of such damages shall have been executed and delivered, or tendered to such owner or occupant by said commissioners. — Laws 1858, p. 37, § 25.

Such an order as was actually tendered is in no sense a compliance with the law. It designates no payee, and leaves the holder with no means of assuring the treasurer of his rights under it. It is payable to no particular person, and' gives no means of reasonably ascertaining the payee. An order under the statute must show on its face to whom it belongs, or is payable.

As under this finding no judgment could possibly be given for the defendants under any rule which might be adopted upon the other points mooted, we do not now feel authorized to consider them.

The judgment is affirmed, with costs.

The other Justices concurred.

* The following is a copy of tho order, omitting the description of the road :

,l Bridgeport, August; 18th, 1860,

To the Treasurer o? the township of BridgeportWhereas a public highway has been laid out by the proper officers, through lands now occupied by Charles- A. Lull; said road described as follows” (giving description according to survey): “The amount of damages awarded to the person entitled thereto, $25 per acre for whatever 1 md was taken at that rate, which for the land so taken amounts to $48.62%. Pay to the owner or occupant, or to the person entitled thereto, for the land so taken, the sum above named, out of any funds raised by the township for the laying out and establishing of roads in said township.

Freeman Little, V Highway Commissioners Haniel Qurry, V for the Jesse Irish, ) township of Bridgeport.” /Egbert Bldred, Town Clerk,