People v. Murray — 5 Hill & Den. 468

Majority

p. 468

The People vs. Murray and others.

Headnote

A statute, after authorizing certain persons to erect a dam across a river, provided that they should execute a bond to the people conditioned to pay such damages as each and every person might sustain in consequence of the erection of the dam; that any person conceiving himself aggrieved might apply to a county judge for •the appointment of a justice of .the peace to enquire and ascertain whether such person had sustained damages by means of the dam ; that the assessment of the justice should be signed by him and filed in the office of the county clerk; that if the damages assessed were not paid within a specified time, the person entitled thereto might prosecute the bond; and that a certified copy of the assessment should be conclusive evidence of the amount of damages. Held, in an action upon the bond, that the assessment was conclusive as to the amount of damages not only, but also of the fact that they were caused by the erection of the dam.

Held further, that the defendants, having acted under the statute by building the dam, were not at liberty to question the constitutionality of the provision relating to the mode of assessing the damages.

The assessment in this case was not subscribed by the justice, but was in his handwriting and commenced thus, “ I, O. M. W., one of the justices” &c.: Held, a sufficient signing within the meaning of the statute, and that the.assessment was therefore valid-

Debt, tried at the Livingston circuit, in September, 1841, before Dayton, C. Judge. The action was on a bond in the. penalty of $10,000, executed by the defendants in pursuance of the ' “ Act to authorize the erection of a dam across the Genesee river at Mount Morris” (Sess. Loads o/1826,y>. 180) and the act amending the same. (Sess. Laws of1829, p. 239.) The bond was conditioned to pay such damages as each and every person might sustain in consequence of the dam &c. The declaration averred that Alvanus Gage and Peter Keyes Jun. received an injury by means of the dam; that their damages were assessed by a justice of the peace-at $1000, in the manner provided by the third section of the act of 1829; that more than thirty days had. elapsed since the filing of the assessment in the county clerk’s office; and that tire damages so assessed had not been paid, &c. The defendants pleaded nil debet.

.' On the trial, after proving the bond, the.plaintiffs’ counsel offered the certificate of assessment in evidence. ' It was in the

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hand-writing of the justice, but his name was not subscribed at the end. It commenced thus: “ Livingston county, ss. I, Ogden M. Willey, one of the justices of the peace” &c. The defendants’ counsel objected to the evidence, on the ground that the certificate was not signed, and also for the reason that the . damages mentioned in the certificate were not proved to have been suffered in consequence of the dam; insisting that the certificate was evidence of the amount of damages only, not of the cause. The circuit judge overruled the objection, and the defendants’ counsel excepted. The plaintiffs’ counsel then gave in evidence a written appointment of Willey, in pursuance of the third section of the act of 1829, and rested his case.

The defendants’ counsel offered to prove that, before the accruing of the damages in question, the defendants constructed a slide connected with the dam, and kept the same in such condition that boats, rafts and arks might at all times pass the dam without injury: that while the slide was in such condition the canal commissioners took possession of the dam and slide in pursuance of law, for the use of the state, scuttled the dam and removed the slide; and that the damages of Gage and Keyes were suffered in consequence of passing their rafts through the aperture made by the commissioners. The plaintiffs’ counsel objected to the introduction of the evidence offered, on the ground that the justice’s certificate of assessment was conclusive evidence of the defendants’ liability. The circuit judge sustained the objection, and the defendants’ counsel excepted. The jury rendered a verdict in favor of the plaintiffs, and the defendants now moved for a new trial on a bill of exceptions.

J. S. Bosworth, for the defendants.

M. T. Reynolds, for the plaintiffs.

The dam in question was built in pursuance of the act of 1826, (Sess. Laws of 1826, p. 180,) which provided, among other things, that the proprietors of the dam (the defendants) should make one or more locks in the same, and keep them in good repair ; that they should execute

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a bond to" the people of this state in the penal sum of $10,000, conditioned for the payment of such damages as each and every person might sustain in consequence of the raising of the water of the river by means of the dam, or by not keeping the locks in repair; that any person conceiving himself aggrieved &c. might prosecute on said bond to recover his damages &c.; that such person might apply to the circuit judge of the district in which the dam was located, whose duty it should be to appoint three appraisers to enquire and ascertain whether the applicant had sustained damages by reason of the erection of the dam; that the applicant should give notice to the parties interested of the time and place of the meeting of the appraisers; that the appraisement should be filed in the county clerk’s office ; that if the sum at which the damages were appraised was not paid, &c., the person entitled thereto might prosecute the bond; and that a copy of the appraisement certified by the county clerk should be conclusive evidence of the amount of damages. The amendatory act of 1829 (Sess. Laws of 1829, p. 239) authorized the person aggrieved to apply to the first or senior judge of the Livingston county courts, whose duty it should be to appoint one of the justices of the peace of the town of Geneseo to enquire and ascertain, by the examination of witnesses or otherwise, whether such person had sustained damage by means of the dam. The last mentioned act also provided that the assessment should be signed by the justice and filed in the county clerk’s office; and that a certified copy should be conclusive evidence of the amount of damages.

It is objected that the certificate of assessment was not signed by the justice, as required by the statute of 1829, and should therefore have been rejected by the judge at the trial. It is not denied that it was drawn up by the justice and filed in the clerk’s office, as the result of his enquiry into the claim for damages by means of the dam, and that it was intended as evidence of his adjudication in the matter. I say it is not denied, because no objection was taken at the trial upon these grounds. The objection was confined solely to the want of a proper signature. In analogy to the numerous cases decided under the statute of frauds,

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as respects the signature required by that act to contracts of sale and testamentary dispositions, I apprehend we are hound to say that the name of the justice in his own hand-writing at the beginning of the certificate is a sufficient signing within the act in question. (Propert v. Parker, 1 Russ. & Mylne, 625; Clason v. Bailey, 14 Johns. Rep. 484 ; Sugd. On Vend. 89; Long On Sales, 57, ed. of 1839, and the cases there cited!)

It is next objected, that the certificate was only evidence of the amount of damages sustained, and that the plaintiffs were therefore bound to prove the damages to have happened by means of the erection of the dam. Looking at the course of legislation on the subject, I am of opinion that the certificate is conclusive upon the defendants as to both points, and of the entire cause of action. The act of 1826 provided for the appointment of three appraisers, whose duty it was to enquire and ascertain whether the person aggrieved had sustained damages by reason of the erection of the dam, and to assess the same. The provision, in terms, clearly involves the necessity of examining not only as to the amount, but whether the damages claimed were occasioned by means of the dam, or otherwise. Besides, the assessment of damages by the appraisers would be a very idle and useless ceremony if the party aggrieved should still be obliged, in an action upon the bond, to establish the fact that the damages were occasioned by the erection of the dam; for it is manifest that substantially the same testimony would be necessary for this purpose, as had already been heard before the appraisers.

The three appraisers were doubtless intended as the tribunal to settle definitively the whole subject of controversy between the parties, such a proceeding being the cheapest and most expeditious way of determining it; and the bond required, and the remedy given thereon, were designed to afford security for the payment of whatever sum might be awarded against the proprietors. It was to be signed by them with sureties.

The act of 1829 simply substituted a justice of the peace in the place of the three appraisers, imposing upon him the same duty enjoined upon the appraisers in the act of 1826, and giving the like effect to his certificate as had before been given to the appraisement,

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It was suggested on the argument that if the act made or intended to make the certificate qf the justice conclusive upon the parties, the provision was unconstitutional, for’ the reason that it authorized a proceeding not according to the course of the common law, and deprived the parties of the. right of trial. by jury. .The short answer is, that the defendants took the grant to build the dam with this condition attached' to it; and they are not now at liberty to make the objection, though, under other circumstances, it might have been effectual. It was competent for them to waive the right of a trial according to the common law, even if, without such waiver, they would be eon-' sidered as entitled to it.'

It is further objected, that the judge erred in excluding the offer to prove that the canal commissioners had taken possession of the dam for the use of the state, and that the damages were occasioned in consequence of certain alterations made by them in pursuance of law. If we are right in our view of the powers conferred upon the justice in the assessment of damages, this question was one that belonged exclusively, to his consideration and decision. . ■

. Upon the whole, we think the circuit judge was right, and that a new trial should be denied.

New trial denied.