151 N.Y.S. 537 | N.Y. App. Div. | 1915
Laws of 1905, chapter 724, being the act providing for the commission or board of water supply of the city of New York, directed (§ 1) that the mayor “shall appoint three persons who shall be commissioners for the purposes hereinafter specified. The persons so to be appointed shall be public officers and shall constitute a board or commission to be called the board of water supply of the city of New York.” Section 7 provides for application to the Special Term for the appointment of commissioners of appraisal.
Upon proof of proper publication the court is by section 9 to make an order for the appointment of three disinterested and competent freeholders, “at least one of whom shall reside in the county of New York and at least one of whom shall reside in the county or one of the counties in which the said real estate shall be situated, as commissioners of appraisal to ascertain and appraise the compensation to be made to the owners and all persons interested in the real estate laid down on said maps as proposed to be taken or affected for the purposes indicated in this act.”
Section 12 regulates the filling of vacancies by death or resignation, by an appointment at Special Term, upon ten days’ notice? by advertisement, of one or more commissioners to fill the vacancies so caused.
The board caused maps to be filed and other introductory steps for taking the Hill View reservoir or aqueduct, including parcels Nos. 1 and 3 in the county of Westchester. Whereupon, on May 4, 1907, the Special Term of Westchester county
A special delegated authority to take away a man’s property and estate against his will must be strictly pursued (Rex v. Croke, Cowp. 26), not only in following the steps as laid down in the special act, but in compliance with the general principles of such proceedings as to the essential rights of the defending landowner. (Matter of City of Rochester, 208 N. Y. 188.) Commissioners to take and value lands by the power of eminent domain are ordinarily to hear evidence, but may also be guided by their own view of the lands and their surroundings. (15 Cyc. 889.) And hi certain instances a determination so made without hearing witnesses will not be disturbed. (Matter of Newland Ave., 60 Hun, 581; 15 N. Y. Supp. 63.) A condemnation based entirely or in part upon a view of the premises, in which the commissioners’ personal knowledge counts for so much, necessarily requires that they be familiar with the property and its surroundings. Like the functions of jurors in the Norman period, who could act per proprium visum et auditum, without testimony of witnesses, the requisite local knowledge for such duties necessitated the further rule that such persons must come from the neighborhood. (Thayer Trial by Jury, in Prel. Treat. Ev. 91.) Such a jury was “a body of neighbors” summoned by some public officer to give, upon oath, a true answer to some question. (1 Pollock & M. Hist. Eng. Law, 138.)
In the Colonial times the freeholders to value lands taken for highways had to be called from the neighborhood.
The act “ for the better Clearing & further Laying Publick High Roads in the County of Ulster,” passed December 17,
In the general provisions for taking lands for highways the Revised Statutes directed the final assessment by six jurors drawn from any other town of the county. (R. S. pt. 1, chap. 16, tit. 1 [1R. S. 515], §§ 65, 66.) But later this area, from which such jurors on appeal could be drawn to reassess, was restricted to the town adjoining that in which the damages should be assessed. The persons were to be drawn by the town clerk of the adjoining town, and then summoned before a justice of the peace in the town in which the damages are to be assessed; the first six, free from legal exception, were to be the appraisers or jury to reassess the damages. (Laws of 1847, chap. 455, §§ 3-6.)
Special railroad charters with right to take land early provided for commissioners of appraisal to be appointed by the vice-chancellor of the circuit. They were to be freeholders and residents of the county. (See Laws of 1832, chap. 233, § 9, act for the construction of a railroad in Cayuga county by the Auburn and Canal Railroad Company.) When they were to be. drawn from the grand jurors, by a vice-chancellor and the county clerk, it was provided that in case of a vacancy “ by death, removal out of the county, or any permanent disability, such vacancy may be supplied on the petition of the said corporation, by the said vice-chancellor, who shall have authority to designate a competent and disinterested freeholder of the county to act as appraiser.” (Laws of 1845, chap. 350, § 20, act for the construction by the Chemung
If we refer to the provisions for the water supply of the city of New York, like stress will he found to be laid upon residence. In the act to facilitate what was subsequently the reservoir at Central Park (Laws of 1853, chap. 501, § 4), the appraisers to be appointed were to be “ three competent and disinterested persons, residents of the city and county of New-York. ”
Regarding watershed lands, and those to be taken for the aqueduct, the commissioners were to reside in the county, or some adjoining county, where the property to be appraised is situated. (Laws of 1877, chap. 445, § 5.) Later it was “one of whom shall reside in the county of New York, and the other two of whom shall reside in the county or counties in which the said real estate shall be situated.” (Laws of 1883, chap..490, § 8.) Then the two not from New York county “shall each reside in one of the counties in which the said real estate shall be situate, or in an adjoining county.” (Laws of 1893, chap. 189, § 9.) Under this provision land might be taken on an appraisal by persons all residing outside the county of its situs. This was remedied in the city charter, which, as to the two outside of New York county, provided that one shall reside in the county in which said real estate acquired or affected is situated, and one of whom shall reside in such county, or in an adjoining county. (Laws of 1897, chap. 378, § 492; Laws of 1901, chap. 466, § 492.) Finally the Condemnation Law has defined the general field from which such commissioners may be appointed. Except in the first and second judicial districts, they must b.e “ residents of the judicial district embracing the county where the real property, or some part of it, is situated, or of some county adjoining such judicial district.” In the first and second judicial districts the commissioners must reside in the county of the situs or in some adjoining county. A significant clause, however, allows the parties to waive, in writing, the provisions of this section as to residence of the commissioners, in which case they may be residents of any county in the State. (Code Civ. Proc. § 3369.) Even by consent, therefore, commissioners residing without the State are unauthorized.
The order must, therefore, be reversed, but without costs, and an order directed to be entered declaring the place and appointment of Mr. George N. Rigby vacated, and that the remaining commissioners take steps, under section 12 of the Water Supply Act, for the appointment by the Special Term of a commissioner to fill the vacancy so occasioned.
Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.
Order reversed, without costs, and an order directed to be entered declaring the place and appointment of Mr. George FT. Rigby vacated, and that the remaining commissioners take steps under section 12 of the Water Supply Act for appointment by the Special Term of a commissioner to fill the vacancy so occasioned.