7 Barb. 416 | N.Y. Sup. Ct. | 1849
The first exception taken upon the trial was to the admission of evidence on the part of the defendant, of the location of the premises within the village of Herkimer. There can be no doubt that it is the right of a party, in all actions of this kind, to locate the premises by the evidence as particularly as he pleases. It is the duty of the plaintiffs in the first place to show the situation and location of the premises in question; and it is the right of the defendant to show the particular description and location. The evidence maybe important upon questions of title, boundary, or damages.
It was next objected that the act was not passed by a vote of two thirds of the members elected to the legislature, and that, therefore it was inoperative, within the limits of the village of Herkimer. By section 9 of article 7 of the constitution of 1821, the assent of two thirds of the members elected to each branch of the legislature was required to'every bill creating, continuing, altering or renewing any body politic or corporate. But the act in question does not profess to be an act of that character. It does not affect the corporate rights of the village of Herkimer. It neither adds to, nor detracts from, the powers of the officers of the corporation or the corporators. It is but the exercise, within the corporate limits of the village, of the right of eminent domain, with which the state has never parted. The powers and duties of the trustees of the village, as commissioners of highways, are not impaired or enlarged by the act. (Ontario Bank v. Burrell, 10 Wend. 86.) In Mitchell v. Halsey, (15 Id. 241,) and Whitney v. Johnson, (12 Id. 359,) general laws were held not applicable to, or controlling, the jurisdiction and powers of officers of municipal corporations, for the reason that they were not within the words of the acts, and not because the acts required two third votes. (See Graves v. Otis, 2 Hill, 466, 471. Hart v. Mayor of Albany, 3 Paige, 213. People v. Morris, 13 Wend. 325.) It was insisted by the plaintiff, thirdly, that the act was not properly in evidence for the want of proof that notice of an application therefor had been published pursuant to 1 R. S. 155, § 1. Such proof can not be necessary. It is mere evidence of the sense of the profession, and the understanding of our courts, upon this subject, that while our books
The plaintiff objected to proof by parol of the action of the commissioners in relation to the alteration of the road at the place in question, at a meeting of all the commissioners upon that subject, and excepted to the ruling of the judge admitting such evidence. It did not appear that any record of the proceedings of that meeting was kept, and the act under which the commissoners acted did not, in terms, require a record of their proceedings. The only note or memorandum of their proceedings which the commissioners were expressly required by the terms of the act to make or keep was that required by section 7. By that section they were required to cause a map and description in writing, signed by them or a majority of them, of the changes and alterations of the route on said road, to be filed in the office of the town clerk of the town of Herkimer. This
The next exception was to the admission of evidence of what transpired subsequently between two of the commissioners, one of whom had been authorized by all to make the proposed alterations, and is untenable. There can be no doubt that the three commissioners having met and consulted and agreed upon the alterations, the power to make them might be deputed to and vested in one of their number. The object of a joint meeting was fully obtained, and the judgment of all was exercised upon the subject matter of the power ; and the execution of the determination was a ministerial act. Indeed, the three having met and conferred, any two of them could have subsequently agreed upon a plan of alterations; they having had the benefit of the advice and suggestions of their fellow commissioner. (Rogers v. Rogers, 7 Cowen, 526, and note (a) at end of the
The next point made by the plaintiff upon the trial was upon the admission of evidence of the appointment of Spencer as a commissioner in place of Caswell, who declined further to act. This appointment was made in July, 1846. The county judge of Herkimer county was authorized by the act to fill any vacancy which might occur by the death, refusal, or neglect to serve, of any of the commissioners. At the time of the refusal of Caswell further to serve as a commissioner, the duties of the commissioners, i.n respect to the alteration in question, were not fully performed, The map and description required by law had not been made or filed, and the damages of the plaintiff had not been assessed or paid. The refusal of Caswell longer to serve did not annul the proceedings of the commission up to that time, but such prior acts were valid, and to be completed by the new board after the vacancy was filled; and although it was not material to the justification of the defendant to show that the commissioners ever entirely completed their duties by making and filing a description of the road, still, if the defendant, for any reason, chose to do so, the evidence was competent, as
So of the next objection of the plaintiff, which was to evidence of the map and description of the alteration signed by only two of the commissioners, and made and filed in January, 1847. It was not necessary to the justification of the defendant to show that any map and description of the alterations had been made and filed by the commissioners. The making it was not a condition precedent to an entry upon the plaintiff’s premises to make the alterations. (Estes v. Kelsey, 8 Wend. 555, Woolsey v. Tompkins, 23 Id. 324. Hallock v. Woolsey, Id. 327.) If the commissioners were authorized, upon making the map and description, to enter upon the premises and make the alterations, the defendant, who was a mere servant and agent, could not be made a trespasser ab initio by a subsequent omission of the commissioners to make and file such map and description. But the evidence was competent for the defendant, if he chose to give it. It is not for the plaintiff to object to evidence showing that every step has been taken which is made necessary to vest a perfect title to the locus in quo in the public, for the purposes of a road, notwithstanding evidence falling short of this might be sufficient for the defendant. It was sufficient that the map and description was signed by two of the commissioners. 1. It was expressly authorized by the act to be signed by the commissioners, or a majority of them. (Laws of 1846, p. 305, § 7.) 2. The presumption is that all assented to it, or that all were consulted, and conferred upon the subject, which would authorize a majority to act. (Doughty v. Hope, 3 Denio, 249, Id. 594. 8 Wend. 555.) Evidence of the declarations of Bellinger and Barckley, two of the commissioners, made after the alledged trespass, was properly excluded. They were competent witnesses if living; but if not, their declarations made after the transaction were no more than the declarations of any other persons wTould have been. The evidence would have been strictly hearsay testimony, and as such was properly excluded. (Greenl. Ev. §§ 99, 100, 123, 124.) The provisions of the re
It is now well settled that the law under which the defendant justifies, not making the assessment and payment of damages a condition precedent to an entry upon and occupation of the premises for the purposes of the road, it is sufficient that the act makes provision for compensation to the owner, and the assessment and payment need not precede such entry and occupa(Bloodgood v. Mohawk and Hud. R. R. Co. 18 Wend. S. C. 14 Id. 51. Calking v. Baldwin, 4 Id. 667. Cole v. Trustees of Williamsburgh, 10 Id. 659. People v. Hayden, 6 Hill, 359.) The owner of the premises may call upon the commissioners to assess and pay the damages as soon as the alteration, is determined upon and the appropriation made; and if they refuse to make the assessment and payment they may be coerced, or perhaps they may be restrained from proceeding with ztlie alteration until the damages shall be assessed and paid. it is not necessary to decide this question. It is sufficient for this case that by the settled construction of the constitution which prohibits private property to be taken for public use without just compensation, actual compensation need not precede the appropriation, and that the law authorizing the reconstruction and alteration of the road in question provides for compensation, but does not make it a condition precedent to the entry' upon and appropriation of premises for the purposes of the ready
I have thus gone through, at some length, the points made upon the trial, and upon which the plaintiff now relies. Some of them are unimportant, while others present questions worthy of consideration. Upon a careful review of the whole case, I - think the rulings and decisions upon the trial, and the final disposition of the case, were right. 1. The act under which the. defendant justified was properly in evidence. 2. It was consti
A new trial is denied.