People ex rel. Eckerson v. Board of Trustees — 47 N.Y. St. Rep. 891

Majority

p. 891

The People ex rel. Eckerson et al., App’lts, v. The Board of Trustees of the Village of Haverstraw, Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

1. Highways—Laying out bo ad—Damages—Juey to assess.

The act under which the village of Haverstraw was created authorized the trustees to “ cause a jury of six freeholders to be. summoned to determine and award” damages for laying out a road. Held, that the trustees might direct the sheriff to summon a jury of six freeholders, or the trus • tees might name the freeholders and direct an officer to summon them, or might direct an officer to summon six freeholders without naming any particular persons.

2. Same—Evidence.

In such case, evidence showing what part of the road had been used as a highway before the order was made laying out the road is admissible, the landowner being entitled to pay for such part of his land as was taken by the order.

3. Same—Order—Description.

An order laying out a road which gives the center line accurately, and specifies the width as twenty-five feet on each side of such line, is sufficient.

Certiorari to review the action of the board of trustees of Haverstraw in laying out a road within the village.

C. Frost, for app’lts; Alonzo Wheeler (Wm. McCauley, Jr., of counsel), for resp’t.

—The order laying out the road in question was legal. The center line of the road was accurately given, and the width of twenty-five feet on each side of said center line. This was sufficient. People v. Com’rs, 13 Wend., 310 .

The jury to assess the damages were properly obtained. The act under which the village of Haverstraw was created authorizes the trustees to “ cause a jury of six freeholders to be summoned to determine and award such damages.” This provision is so general that it may be executed in several ways. The trustees might ■direct the sheriff of the county to summon a jury of six freeholders, or the trustees might name the freeholders and direct an officer to summon them, or the order might direct an officer to summon six freeholders without naming any particular persons. The last order was made by the trustees. The general law. in respect to opening roads by commissioners of highways authorizes the commissioners to apply to any two justices of the peace of the town, who issue their warrant to a constable of some other town to summon twelve freeholders, from which panel a jury of six is to be drawn to assess the damages. Chap. 291, Laws of 1870, title 7, § 4.

This act makes the trustees commissioners of highways for the village, and requires the trustees to cause the jury to be summoned, but reduces the number to six. There are no village justices of the peace. The village act provides for an appeal to the county judge and a rehearing before three freeholders of the county, but not residents of the village. The trustees are substituted for the justice to issue the precept, and the constable is to

p. 892

summon the jury of six freeholders in analogy with the proceedings in ordinary cases of laying out roads in towns.

The objection to the proof taken before the jury as to what-part of this road had been used as a highway before the order was-made, was unfounded. The land owner was to be paid for such part of his land as was taken by the order, and the only way possible by which this was to be ascertained, was by proof. Such proof is justified by the case of Baldwin v. City of Buffalo, 35 N. Y., 375 _

_ _ It was unimportant whether or not the president of the trustees-directed a fence to be built along a part of the premises in dispute. The other objections to evidence are based upon the assumption that when a road is laid out and a part of it was a highway before, evidence addressed to the ascertainment of the value of' the land taken is inadmissible. This point has already beem considered.

The order and proceedings should be affirmed, with costs.

Cullen, J., concurs.