Village of Champlain v. McCrea — 33 A.D. 259

Majority

p. 259

The Village of Champlain, Respondent, v. Matilda McCrea, Appellant, Impleaded with the First National Bank of Champlain.

Headnote

Eminent domain —proceedings by water commissioners of a ‘milage to acquire water rights—failure to file maps and plans as required by statute.

Where a petition, in proceedings instituted by a board of wat.er.commissioners of a village, to acquire, by condemnation, under the provisions of section 223 of chapter 414 of the Laws of 1897, the water and water rights necessary for a system of water works, sets forth that the water commissioners caused a map to be filed in the county clerk’s office, but contains no allegation that any - map or plans were filed in the village clerk’s office, and the proof upon the hearing in such proceedings does not disclose the making or filing of plans in any office — although a map and order were filed in the county clerk’s office and a duplicate of the map in the village clerk’s office — the petition is insufficient to -give the court jurisdiction, and the proceedings are irregular and should be dismissed.

Landon, J., dissented.

Appeal by the defendant, Matilda McCréa, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the lltli day of January, 1898, upon the decision of the court rendered after a trial at the Clinton Special Term, adjudging that'the plaintiff is entitled to take and hold certain water rights; also from an order made at the Clinton Special Term and entered in said clerk’s office on the lltli day of- January, 1898, allowing certain amendments to the petition by which this proceeding was instituted and directing the appointment of commissioners to appraise certain water rights; also from an order or decision made at .the Clinton Special Term and entered in said clerk’s office on'the 11th day of January, 1898, overruling

p. 260

the objections of the defendant, Matilda McOrea, mailing certain findings and declaring certain conclusions also from an order made at the Clinton Special Term and entered in said clerk’s office on the 15th day of March, 1898, appointing commissioners of appraisal and fixing a time for á meeting thereof.

This proceeding‘was instituted by' the board óf Water commissioners of the village of Champlain, in tiie name of said village. of Champlain, to acquire by condemnation the-water and water rights: necessary for the system of water works of said village, as provided by section 223 of the Village Law of 1897 (Chap. 414).

John P. Kellas, for the appellant.

Wilmer H. Dunn, for the respondent.

The petition of the Water commissioners alleges that these proceedings are instituted as provided by section 223 of the Village ■ Law of 1897.” That section provides for the filing of a map and plans in the office of the village clerk, and of a certified copy of the- • map in the county clerk’s office of each county in which any of the lands are, situated. The petition- further sets forth that the water commissioners caused a map to be filed in the Clinton, county clerk’s office ■; there is no allegation anywhere that any map Or plans were filed in the village clerk’s office, and the proof upon the hearing failed to disclose the making or filing of plans in any office, but did disclose that a map and order were filed in the county clerk’s office on the second day of July, and a duplicate of the map in the village clerk’s office on the seventh day oí July,

We think that-, for this omission to comply with the provisions of the statute, the proceedings, are irregular and the petition insufficient to give the court jurisdiction, and for these, reasons the proceedings should be dismissed, with costs.

Substantially the same questions are involved in the appeal from • the order made in the case of The Village of Champlain v. Matilda McCrea and Emmett W. Fitch (post, p. 636 ), and the order in that case should, therefore, also be reversed and the proceedings dismissed.

All,concur, except Landon, J., dissenting,