LOTT, Ch. C.

There was no question made on the trial as to the commission of the acts complained of as obstructions to the road in question, and it was also shown that the defendant was then the owner of and in possession of the land on which they were committed; but the defendant denied that it was subject to a public highway. It was proved that it had been used as such for fifteen years, and that the defendant, as a commissioner of highways, in connection with his co-commissioners, had expended two hundred dollars in a single year to protect it, and that he had also, "as path-master," ordered it to be worked as a public road. This expenditure was incurred three or four years before the obstructions were made, and it appeared that the defendant at that time owned land on one side of the place where the money was expended, and that it was protected by what was done, that he was consulted about it, and did not object to it; nor did he make any objection that the land was not a public highway while the money was being expended, at any time during his term of office as such commissioner of highways. He afterward, for the consideration of one hundred and fifty dollars, purchased and obtained title to a piece of land containing eight acres (including the ground on which the obstructions were made, but not in any manner referred to as a highway), from one Nathan Reynolds, who had acquired his title from John I. Heckart and others, heirs-at-law of Peter Heckart, deceased, by deed bearing date the 17th day of October, 1853, and it is claimed on behalf of the respondents that, notwithstanding such purchase and acquisition of title, the defendant "is estopped by his own acts and dealings with the public from disputing this road to be a public highway." Their counsel insists and urges in his points that "the law will not permit a man so far to ignore good faith and common honesty as to expend the public money, controlled by him as a public officer, so as to benefit his own private property, and then turn around and affirm he had no right so to expend it, and thus rob the public of the benefit of its expenditure; nor will it permit him to use his official right to the records of the title of the public to property, in order to search or spy out defects in that title, and then to buy up eight acres, for one hundred and fifty dollars, so as to deprive the public of their title to about one acre and a half, which has cost them three hundred dollars in cash and a yearly amount of labor for fifteen years."

Whatever may be thought of the propriety of such conduct, such claim, as a legal proposition, is not tenable. The defendant, in reference to the expenditure of the money and his acts as overseer of highways in ordering work to be done as above stated, testified as follows: "I then had no suspicion but that the town claimed it as a road, but afterward, the commissioners came to the conclusion that it was not a road, and they went to the town board and they said it was not a road, and upon that I purchased it of Reynolds, and since my deed, I have claimed to own the strip," adding: "I have before refused to buy it of him on account of the road."

It will be seen from the preceding statement of the facts, that the defendant, at the time when the transactions relied on as an estoppel occurred, did not own the land, which is the subject-matter of the controversy. His acts could not affect the rights or title of Reynolds, who was then the owner; and, although the conduct of the defendant, under all the circumstances, may be deemed illiberal to his neighbors and the public, discreditable to himself as a citizen, and properly condemned by every fair-minded man, he had, nevertheless, the legal right to acquire the title of Reynolds, and that vested him with all rights which Reynolds had to the property. Those rights were entirely unaffected by the defendant's previous acts in reference to and over it as a public officer, in ignorance of the fact that it was not a public road, and he has done nothing in recognition of it as a highway, since the acquisition of those rights, which could prevent him from closing it up.

It then remains to be considered whether the premises were subject to a highway when he acquired Reynolds' title.

There were several exceptions to the admissibility of evidence on the trial, which are not referred to in the points of the appellant's counsel, and were not relied on by him on the argument, and, therefore, will not be particularly noticed by me. Those that appear to be insisted upon will hereafter be considered. It was sufficiently proven that an application in writing, signed by a person liable to be assessed for highway labor in the town of Big Flatts, was presented to the commissioners of highways of that town for laying out the road in November, 1844, and that a certificate, by twelve freeholders, of the necessity and propriety of such road was also delivered to them. The commissioners refused to lay out the road, and made an order to that effect, which it appears was signed by two of the commissioners only, the other being absent. An appeal was taken by the applicant from that order to the judges of the Court of Common Pleas of Chemung county, who, in May, 1845, made an order reversing the determination of the commissioners, and laying out the highway pursuant to the application. That order recited such appeal to them, that they had given a notice of it to the commissioners, specifying therein a time and place at which they would commence to hear it; that they had so met, and that they had, after hearing the proofs and allegations of the parties, determined and decided that such determination ought to be reversed.

The making of the said order by those judges is not denied by the appellant's counsel, but he claims that "no valid order refusing to lay out the road was ever made by the commissioners," and that "there was, therefore, no foundation for the appeal or the judges' order laying the road." Two objections are stated by him to the commissioners' order: First, that, although there was evidence, to which he refers tending, to show that such order was, in fact, made, he claims that "there should be some evidence of the genuineness of the commissioners' signatures to it, to justify submitting it to the jury," and that, "at most, the evidence is not sufficient to justify taking the fact from the jury and directing a verdict;" and, second, that it had been testified by one witness that "there were three commissioners at the time of the determination refusing to lay out the road, but one of them was absent," and that, therefore, "their action was void."

There is a sufficient answer to these objections in the fact that they were neither of them taken on the trial. A copy of the judges' order was offered in evidence, which was objected to by defendant. Among the grounds of objection stated were the following: That it had not been shown "that the commissioners of highways had made a determination refusing to lay out such highway; nor that any person had appealed from such determination," and none other was made having any application to the two objections above set forth. There was nothing in either of those grounds to indicate any question as to the genuineness of the commissioners' signatures to the order; nor that it was claimed to be invalid because it was signed by only two of them. There had, in fact, been evidence sufficient to justify the conclusion that the signatures were genuine, and there was no request to submit that or any other question to the jury.

It is also claimed that there was not sufficient evidence of the following facts:

1st. "That notice was posted six days, in three public places, specifying the route of the proposed road, the lands through which it would pass, and the time and place at which twelve freeholders would meet to inquire into the necessity for it."

2d. "That twelve freeholders certified the road to be necessary."

The objection is not that there was no evidence in relation to those matters, but to its sufficiency, and its insufficiency was, at the trial, urged and relied on for no other purpose than as a ground against the admission of the judges' order in evidence. There had, at that time, been testimony tending to show all of those facts, and no specification of any defect in the proof was made. The court could not, under such circumstances, properly refuse to admit the order on the general objection made that "they had not been sufficiently shown."

It is also insisted that the copy of the judges' order admitted in evidence, and which was sworn by the town clerk to be a copy of the original order, filed in his office, was inadmissible. The objection to its admission at the trial was "that such copy was not the best or competent evidence of the order, that the record or the original order should be produced." It was proven by the town clerk, as has already been stated, to be a copy of the original, which he, at the same time, said had been taken from his office, and the inference from what he said in connection with the subject, was that it could not be found, and it was not claimed that sufficient proof had not been given of its loss, or of facts to excuse its production. The objection was, in effect, that no copy, except the record, was admissible. The statute requires the order to be filed in the office of the town clerk, and it is made his duty "to record the same" (1 Revised Statutes, 519, § 89), but such duty (assuming it to have been performed) did not preclude any other secondary evidence of its contents.

One of the freeholders who acted in examining and determining in regard to the necessity and propriety of the highway, was asked, "did you come to the conclusion that a highway was necessary and should be laid?" To this question the defendant's counsel objected. It was, nevertheless, admitted, and an exception taken to its admission is now relied on as a ground for the reversal of the judgment. Assuming it to have been erroneous, the error was entirely harmless. Evidence had previously been given tending to show that the requisite number of freeholders had acted in making such examination, and it was proven that "they made a certificate that the road was necessary." That was proof that they had come to the conclusion in relation to which he was asked, and the additional evidence could not prejudice the defendant. I may add that the objection to the question was general, no ground of objection whatever being stated. It was, therefore, properly overruled.

The evidence, to which I have already referred, tending to prove that the defendant, as commissioner and overseer of highways, had worked this road, was also objected to; but the views above expressed by me, as to its effect, show that it was harmless; it is consequently unnecessary to examine whether it was admissible or not.

The only remaining question to be considered is raised by the point of the appellant's counsel "that the proceedings to lay out the road were wholly defective, in not assessing the damages of the owners (the heirs of Heckart), by a commissioner and two assessors, and the owners, in the absence of this, may fence up the pretended road." He claims that this defect appears, 1st, from the fact that the assessment being made by a jury in 1846, was wholly illegal and void, because the act of 1845 (Session Laws of that year, chap. 180, § 5), required it to be made by a commissioner and the assessors. And 2d, because no damages were assessed to the owners of the land in question. It appears by the assessment, that the only damages assessed were those sustained by James Hughson and Samuel Boyer, and which were determined and fixed at seventy-five dollars, but they were afterward increased, by the board of supervisors, to one hundred dollars. Hughson was the owner of a part of the land included within the highway, and Boyer was the occupant of the residue, which was owned by the heirs of Heckart. The act of 1845 took effect on the first day of July in that year, and all statutory provisions inconsistent therewith were thereby repealed. (§§ 36 and 37.)

The order of the judges bears date on the 15th day of May, 1845, and the certificate of assessment is signed by six freeholders, and is dated 4th April, 1846, and a certificate is written below it, signed by two justices of the said town, bearing date the same day, certifying that the above was a verdict of the jury drawn and sworn by them to assess the damages sustained by James Hughson and Samuel Boyer, by the laying out of the highway mentioned in the said verdict.

It was shown by the records of the board of supervisors of the county of Chemung that proceedings in reference to that road were had by it in the year 1846, and none other were to be found therein, and that the board, after an examination of the matter, and a report thereon, by a committee, had come to the conclusion that the actual damage sustained by said Hughson and Boyer was one hundred dollars, and an indorsement appears on the certificate of assessment in the following terms, viz: "The board of supervisors having inquired into the assessment of the jury in the within assessment, have decided the damages sustained by the persons through which the highway is laid, and do assess the damages one hundred dollars, ($100.")

It is evident from the preceding reference to the assessment proceedings, that they were had under the provisions of the Revised Statutes, which were clearly inconsistent with the act of 1845, and consequently repealed thereby.

The fact of such repeal, and the consequent illegality of the assessment, do not appear to have been, in any manner, referred or alluded to on the trial. When the assessment was offered in evidence it was objected to "on the ground that it was not properly proven, and upon the further ground that said assessment was not to the owners of the land; that the same was joint and not a several assessment of the damages of each owner or occupant of the land through which said road ran." It is questionable, therefore, whether its invalidity on the ground that it was not made under the act of 1845, can, on the present appeal, be available in this court, on the exception taken to its admissibility in evidence. (See Vose v. Cockcroft, 44 N.Y., 415; Delany v. Brett, decided by this Commission at the September term, 1872, 51 N.Y., 78; Hackett v. Belden 47 N.Y., 624). I deem it, however, unnecessary, in the view hereinafter taken as to the necessity of any assessment being made, before there can be a valid highway, to consider that question; nor whether the invalidity of the assessment, admitted in evidence, can, upon the authority of Low v. Hall, 47 N.Y., 104, be made available to reverse the judgment under the general exception taken by the appellant's counsel to the direction of the judge on the trial "to render a verdict in favor of the plaintiffs against the defendant for the sum of twenty-five dollars," it having been admitted that he had obstructed the road in controversy five times.

Assuming the assessment to be illegal, I, nevertheless, am constrained to decide, contrary to my individual opinion as to the constitutional provision in force when this highway was laid out, declaring that private property shall not be taken for public use without just compensation, that under decisions of our courts, which must be deemed to settle the question as res adjudicata (so far as it relates to highways laid out in towns, under our highway laws applicable to those), that the plaintiff, as owner of the land through which the road in question was laid, had no right to obstruct it by the erection of fences on or across the same, notwithstanding the fact that neither those from whom he derived title, nor he, himself, had ever been paid any damages sustained by them by reason of the laying out and opening such road, and that such damages had never been assessed, and consequently that, by making such obstruction, he made himself liable for the penalties prescribed therefor. It is held by those decisions that the individual whose land is taken for such a highway, obtains the just compensation to which he is entitled on being provided with a legal remedy to collect it, although the prosecution and enforcement of it, may subject him to costs and expense, which will necessarily, in all cases, reduce, and, in some, may absorb the entire compensation that may be awarded to him.

The principle was decided in Rogers v. Bradshaw, (20 John. R., 735), by the court for the Correction of Errors in 1823, that when the legislature authorized private property to be taken for the use of the State, it was sufficient to " make provision for compensation," and that it was not necessary that the amount of such compensation should be actually paid or ascertained before the appropriation thereof; that was a case arising under the act of 1817 (chapter 262), relative to canals, which provided for ascertaining compensation for lands, etc., appropriated therefor when not given or granted to the State through the agency of appraisers to be appointed by the Supreme Court, and for the payment thereof, when so appraised, by the canal commissioners.

At the time that act was passed, and the question involved in that decision arose, there was no provision in our State Constitution on the subject; but that to which a reference has been made was introduced into the Constitution established and adopted in 1821. It was, however, as stated by SPENCER, Ch. J., on giving the opinion of the Supreme Court on deciding the same case (20 J.R., 103), only "declaratory of a great and fundamental principle of government." The question was again discussed by the court for the Correction of Errors, in Bloodgood v. The Mohawk and Hudson River Railroad Company (18 Wend., 9), although the principle, as it will be hereafter seen, was not decided therein, and after several opinions were delivered, the judgment, which had been rendered therein in the Supreme Court in favor of the defendants, was reversed on the ground, as stated in the judgment of the court for the Correction of Errors, set forth at the end of the report, that by the true construction of their charter or act of incorporation they were not authorized to take the plaintiff's land to their use for the purpose of making their railway thereon until his damages were appraised and paid or deposited for his use, as provided for in the act of incorporation, after declaring and adjudging another question presented and involved in the case that "the legislature of this State has the constitutional power and right to authorize the taking of private property for the purpose of making railroads or other public improvements of the like nature, paying the owners of such property a full compensation therefor, whether such improvements be made by the State, itself, or through the medium of a corporation or joint stock company." The chancellor and other members of the court considered the question whether land could be taken in any case without previously, or at the time of such taking, making compensation therefor by actual payment; it was said by one of them (and he questioned the decision of the Court of Errors in Rogers v. Bradshaw, supra), that in taking land for highways, the property was allowed to be taken and used before payment, for the reason that the faith and solvency of the town were pledged to the owner that payment therefor to him should certainly be made without hazard or doubt; and another said that in such a case "the fund from which compensation is secured is a public one, and certain, and the means for ascertaining the damages and for reaching the fund are defined, specific and at the command of the party injured;" but, as has been before stated, that question was not really involved in the case.

Without referring to any cases reported after that decision until 1849, I call attention to that of Smith v. Helmer (7 Barb., 416), where it is said by ALLEN, J, in considering the constitutional provision, near the end of his opinion, with reference to a special act authorizing the construction and alteration of a highway, that "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 occupation." And WELLES, J, in Wallace v. Karlenowefski (19 Barb., 118), decided in 1854, while deciding that the act, then the subject of examination, was unconstitutional and void, because no compensation was required to be made to the owner, said that if it "had provided means whereby compensation could be obtained, it would have been a compliance with the constitutional provision." A reference to other authorities is unnecessary. It must be deemed established by those referred to, in which the question was, in fact, decided, and by the opinions of learned judges, expressed in those where it was not necessarily involved, but declared and assumed to be the law, that the security provided for an early as well as certain payment of compensation under the general highway laws, by means of a general tax, to be collected with the other moneys raised annually for taxation, is a compliance with the provision of the constitution declaring that private property shall not be taken for public use without just compensation, and, consequently, that the defendant was not justified in erecting the obstructions for which the penalties were recovered.

I deem it proper, so as to prevent misapprehension from what has been said, to add that I do not mean to be understood as holding that a provision made by a local special assessment, imposed on lands adjoining those taken, for raising the money required to make payment therefor (but the collection of which may be, and practically in many cases, is deferred for an unreasonably long time), comes within the principle or doctrine of those decisions, or that it is a compliance with the constitutional requirements as to making compensation. Such is not my understanding of the law or of the effect of those decisions, and it is said by NELSON, Ch. J., in The People v. Hayden (6 Hill, 359), that "although it may not be necessary, within the constitutional provision, that the amount of compensation should be actually ascertained and paid before property is thus taken, it is, I apprehend, the settled doctrine, even as respects the State itself, that at least certain and ample provision must be first made by law (except in cases of public emergency), so that the owner can coerce payment through the judicial tribunals, or otherwise, without any unreasonable or unnecessary delay; otherwise the law making the appropriation is no better than blank paper," and, I think, our experience justifies us in saying that payment under such special assessments, is not, as a general rule, realized or secured within a reasonable period, but is, on the contrary, unreasonably deferred.

My conclusion upon the whole case is, that there is no ground for the reversal of the judgment appealed from; it must consequently be affirmed, with costs.

All concur; Gray, C., not sitting.

Judgment affirmed.