In re Underhill — 25 N.Y. St. Rep. 701

Majority

p. 701

In the Matter of the Petition of Edward B. Underhill et al., for the Draining of Swamp Lands in Yorktown, Westchester County, New York.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Drainage—Commissioners of—Map—Amendment—Laws 1886, chap. 686, §§ 6, 7.

Where a map filed by the commissioners under the drainage acts (Laws 1886, chap. 636, §§ 6, 7), called for open ditches, and a portion of the ditches we- e subsequently made of tile, and covered, Held, that the county court had power to permit an amendment under section 14 of the act, and the amendment ordered and made by filing a new map cured the defect.

3. Same—Notice of appeal—Must contain what—Laws 1886, chap. 636.

By section 10 (Laws 1886, chap. 636), it is required that the notice of appeal should contain “a full statement of the grounds of the appeal, setting forth the points on which he (appellant) feels aggrieved by the determination of the commissioners.” Held, that it must be presumed that lateral ditches laid outside of the land condemned for the purpose of drainage called for by the proceedings, were constructed by due authority, this being not urged in the notice of appeal.

The map filed by the commissioners under sections 6 and 7 of the drainage act called for open ditches. A portion of the ditches was subsequently made of tile and covered. The county court had power to permit an amendment in furtherance of justice under section 14 of the act, and the amendment ordered and made by filing a new map cured the defect. It appears by the case that certain of the lateral ditches were laid outside of the land which was condemned for the purposes of the drainage called for by the proceedings. This was not urged in the notice of appeal, and the act seemed to require “ a full statement of the grounds of his appeal, setting forth the points on which he feels aggrieved by the determination of the commissioners.” Section 10, as amended by chapter 636, Laws of 1886.

The appeal was tried in acquiescence with this principle in the law. The county court, at the commencement of the hearing of the appeal, made a rule that no objection taken in the notice would be considered. It must be assumed that the lateral ditches outside of the district condemned were constructed by due authority. The case cited by the appellant establishes the doctrine that a mere license is not sufficient to give an easement, and that a person benefited cannot be assessed for works not lawfully constructed. This is undoubtedly the law, but on the appeal we must assume that the right to lay lateral ditches was legally obtained. No such objection was presented to the county court, and only “questions of law” can be considered by the general term. Section 12.

If we are right in the restrictive nature of this appeal, there is no other question of law involved, and the order

p. 702

confirming the report of the drainage commission should be affirmed, with costs.

Pratt, J., concurs.