People v. Crosier — 12 Abb. Pr. 445

Majority

p. 445

PEOPLE a. CROSIER.

Supreme Court, Fourth District;

Special Term, January, 1861.

Headnote

Highways.—Waiver.—Mandamus.

Where the occupants of land through which a proposed road is to he laid out, waive notice of the proceedings of the referees to lay out the road on' appeal from the commissioners, but before any action is had on such waiver, withdraw it, the referees cannot proceed without giving notice.

Motion for a mandamus.

The defendants were commissioners of highways of the town of Hebron, and this proceeding was to compel them to open a road which had been laid out by referees on appeal from their decision. The objections appear in the opinion of the court.

Burdick & Betts, and C. L. Allen, for the relator.

T. Cronin, for the commissioners.

—The proceedings for the laying out or altering the highway may be regarded as regular down to and including the order of the referees’ reversing the order of the commissioners. But it seems that the referees proceeded to lay out the highway without giving notice to the occupants of the land through which it ran, as required by the statute.

The waiver by the occupants, contained in the moving papers, is retracted by them in the papers in opposition to the motion; and no action having been had on such waiver before it was withdrawn, the withdrawal of such waiver was in time.

Of course the order of the referees laying out the road, and all subsequent proceedings, are null and void, and the commissioners cannot be compelled to ascertain the damages of the occupants of the land, or to open the highway, as ordered by the- referees. The referees should proceed to give the notice to the occupants of the land, and lay out the highway, and make

p. 446

and file a survey of it. The proceedings for that purpose already had, being null and void, are to be disregarded, and the duty devolved upon the referees to that extent is unperformed.

The motion for a mandamus is denied, with $10 costs, and the referees are ordered to proceed and discharge their duty, by giving notice to the occupants of the land, and laying out the road, and making and filing a survey, as directed by statute.

On appeal to the July general term of the fourth district, the above order was modified so far as to require the referees to commence de novo, and give notice of a new hearing to the occupants and commissioners.