6 Barb. 607 | N.Y. Sup. Ct. | 1849
Burch was a witness on the trial, on behalf of the people. He was asked whether the place in question was a public highway. This question was objected to by the defendant, but the objection was overruled by the court. Burch testified that the place was a public highway. It is apparent from the evidence, that the public highway, or what was claimed to be one, had neither been opened or worked, or used as a public highway. The attempt therefore was, by parol evidence, to divest the title of the owners of real estate. I think the evidence was inadmissible.
The district attorney offered in evidence an order of John McLean, first judge of Washington county, laying out the highway in question, made on an appeal to him by Martin Burch from the decision of the commissioners of highways of the towns
Judge McLean and the two judges associated with him on the appeal from his decision, constituted tribunals of special and.
If a court, whether of general or limited jurisdiction, undertakes to hold cognizance of a cause without having jurisdiction both of the person and the subject matter, the proceedings will be utterly void. And in the case of a limited or special jurisdiction, the magistrate or party attempting to enforce a proceeding founded on any judgment, sentence, or conviction, in such case becomes a trespasser. (19 John. 40, 41. 3 Cow. 209; 2 Cow. & Hill’s Notes, 990.) The jurisdiction of a court, whether of general or limited jurisdiction, may be inquired into, although the record of the judgment states facts giving it jurisdiction. No court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alledging the existence of facts on which jurisdiction depends. (5 Hill, 168, per Bronson, J. 5 Wend. 158. 6 Id. 452.
Every statute authority in derogation of the common law, to divest the title of one and transfer it to another, must be strictly pursued, or the title will not pass. The recitals in a conveyance given under such statute authority are not evidence of the regularity of the proceedings; and the fact that they were regular must be proved, and the onus rests on the purchaser. (4 Hill, 86. 2 Barb. Sup. C. R. 113. 3 Id. 275, 341, 360. 7 Cowen, 88.) The order of Judge McLean, made on - the appeal to him, and the order of the two judges associated with him, affirming his decision, do not state the facts necessary to give the commissioners of highways jurisdiction of the application of Burch to lay out the highway in question. To give the commissioners jurisdiction an application should have been made to them, in writing, by a person liable to be assessed for highway labor. (1 Rev, Stat. 513, § 56.) This fact is not recited in the order of Judge McLean ; and the defendant offered to prove that no such written application had been made to the commissioners. If the commissioners had no jurisdiction of the application to lay out the road, their determination was void ; and the appeal from that determination, and the decision on the appeal, were also void. If no legal foundation was laid for the appeal, both appeals, and all the proceedings thereon, were nullities. The court below erred in deciding that the orders of Judge McLean, and of the three judges, were conclusive evidence of the regularity of the laying out of the road. These orders, as the district attorney did not prove the facts necessary to give the commissioners of highways jurisdiction, were not evidence, for any purpose. The district attorney ought to have been required, by the court, to prove the facts made necessary by the statute to give the commissioners jurisdiction; or at least the defendant should have been allowed to show their want of jurisdiction.
The court ought to have received the evidence offered by the
If the premises where the battery was committed was an orchard of four years growth, the highway could not have been laid through it without the consent of the defendant. And if the highway had b.een laid out through this orchard without the defendant’s consent, the commissioners of highways, and their agents, would have been trespassers, in entering upon the premises to open and work such highway. (4 Cow. 190.) The evidence, therefore, offered by the defendant to show that the road was laid through his orchard without his consent, should have been received. The offer was not very specific, but it was undoubtedly intended as an offer to show that the identical premises where the battery was committed were an orchard, and the orchard referred to, through which the road was laid. If it had appeared that the premises where the battery was committed, belonged to, and were in the possession of the defendant, and that they were enclosed, improved, or cultivated, and that the road had been laid through them without the defendant’s consent, it would undoubtedly have been necessary for the district attorney to have shown that the necessity of the road had been certified to by the oaths of twelve reputable freeholders, as required by the title of the statute relative to highways.
The mistake in the date of the order of Judge McLean, was a clerical mistake, and did not invalidate the order. The neglect of Judge McLean to suspend proceedings upon the appeal to him, until the expiration of 60 days from the determination of the commissioner of highways, as required by the 85th section of the statute, (1 R. S. 518,) if that section was not merely directory, was only erroneous, for which the remedy was by certiorari. It did not render his proceedings and decision void.
It is not necessary to notice any of the other questions raised on the argument.
See also Prosser v. Secor, 5 Barb. Sup, C. R. 607.