Majority
Appeal from an order of the County Court of Chemung county, made on January 4, 1939, and entered in the Chemung county clerk’s office on January 10, 1939, appointing three commissioners to assess the damages sustained by petitioners-respondents on account of the improvement of a stream along a town highway. The petition showed that after a heavy storm in October, 1937, the town superintendent of highways of the town of Big Flats in the county of Chemung, with the knowledge and apparent consent of the town board of that town, entered upon petitioners’ lands along a town highway for the purposes of removing gravel and debris from the highway and constructing a new channel for the stream which flowed over petitioners’ lands near this highway. The entry upon petitioners’ lands was made without any previous agreement for the payment of damages. Order unanimously affirmed, with fifty dollars costs and disbursements.