July Term, 1897.
William W. Hare, for the appellants.
Hull Greenfield, for the respondent.
A sufficient statement of facts in this case is contained in a report thereof in the Court of Appeals ( 151 N.Y. 557). It was remitted to us to pass on two questions: The first is, was there any sufficient description, by reference or otherwise, in the order of the commissioners, of the highway proposed to be laid out. The second question is, was it competent for the County Court, after having reached the conclusion that the damages awarded by the commissioners to the appellants Miller were inadequate, to determine the amount by which they should be increased, or were the landowners entitled to have the case sent back for a reassessment of damages by commissioners appointed as provided by the Constitution.
In our consideration of the questions thus submitted to us it is proper to bear in mind the well-settled principle that a statute authorizing the taking of private property without the owner's consent must be strictly construed. ( Matter of Water Comrs. of Amsterdam, 96 N.Y. 351.)
In the case cited, although the proceeding therein was under a different statute from the one we are called upon to consider, it was said: "It has been uniformly held that in proceedings of this character extreme accuracy is essential for the protection of the rights of all parties. * * * There must be no uncertainty in the description of the property to be taken, nor in the degree of interest to be acquired."
The description of the proposed highway in this case, contained in the order of the commissioners, was as follows: "A highway in the town of Lansing, in said county, commencing about twenty-five rods east of Henry Houser's residence, at or near the foot of the hill, which proposed highway will pass through the lands owned and occupied by John H. Miller, Jane Miller, Dennis Kelly, William Patterson, Stephen Malone, Perry Ross and Edwin Weeks, who do not consent to the laying out of the highway, and to assess the damages to be caused thereby." It will be seen that the description of the proposed highway, in the order of the commissioners, substantially follows that contained in the application of the respondent, and in the notices served in the proceeding.
In proceedings for laying out a highway it is apparent that the application should be accompanied by a survey, or some proper description, showing distinctly the line of the proposed road, so that persons through whose lands it is to be laid out, and others interested, can determine its route. And, in the order of the commissioners, as said In Matter of Water Commissioners of Amsterdam ( supra), "there must be no uncertainty in the description of the property to be taken." The description should be such that from it alone, without resort to other papers, the road could be laid out.
From an examination of the above description of the proposed highway it is apparent that it is fatally defective. It commenced "about twenty-five rods east of Henry Houser's residence." About twenty-five rods might mean twenty-four, twenty-four and one-half, twenty-five and one-half or twenty-six rods; it is impossible to determine. "At or near the foot of the hill;" how near is not stated. "Which proposed highway will pass through the land owned and occupied by John H. Miller," etc.; where or on what line is not stated.
The description is clearly uncertain and indefinite. From it it would be clearly impossible to locate the proposed road. It is more indefinite than that considered in People ex rel. Waters v. Diver (19 Hun, 263). Although that case was decided before the enactment of chapter 568, Laws of 1890, we think the doctrine therein stated is applicable to the case under consideration.
Section 81, chapter 568, Laws of 1890, provides as follows: "Survey. Whenever the commissioners of highways shall lay out any highway, either upon application to them or otherwise, they shall cause a survey thereof to be made, and shall incorporate the survey in an order to be signed by them and to be filed and recorded in the office of the town clerk, who shall note the time of recording the same."
While it might not have been necessary for the commissioners in this case to literally follow the direction of section 81 ( supra), it is apparent that their order should have contained a survey as therein prescribed, or a description of the proposed road sufficient to locate it.
We observe that in the affidavit of C.E. Wood, town clerk, he states that among the papers on file in the town clerk's office in this proceeding was a "map of the proposed road, consisting of a survey of the same." The map or survey is not contained in the case. As the survey, whatever it was, was not incorporated in the order laying out the road, or in any order made by the commissioners, and is not referred to in such order, it does not avail the respondent on this appeal.
On account of the insufficiency of the description of the proposed road in the order of the commissioners, and without considering the other question involved in the case, we conclude that the order of the County Court should be reversed, with ten dollars costs and disbursements, and the report of the commissioners set aside, with ten dollars costs.
Order of the County Court reversed, with ten dollars costs and disbursements, and the report of the commissioners set aside, with ten dollars costs.