Burk v. Ayers , 26 N.Y. Sup. Ct. 17 ( 1879 )

Smith, J.:

It is insisted by the respondents’ counsel that this appeal should Be dismissed on several grounds, which will be briefly considered.

First. It is said that' an appeal from the county court to this-court, in proceedings for draining lands, is not authorized by law. The act of 1869, chapter 888, authorized proceedings for draining lands to be had before the comity judge (§ 1), or before that officer and the justices of sessions, if heshould choose to associate.them with him (§12), and it give an appeal from the decision of the county judge, or that of the county judge and the justices of sessions to this court. (§ 12.) That act made no provision for proceedings, in the county court, and consequently not for an appeal from the county court. But in 1871 (Laws 1871, chap. 303, § 4), the act of 1869 was amended by adding to it a section which provided that “all the powers and jurisdiction vested by this act, in the county judge, or in the county judge and justices of the sessions-when associated with such officer, are hereby vested in the county court,” etc. We think it apparent, from the whole section, that it was the design to substitute the county court for the county judge, in all respects, in proceedings under the act. It is true there are no words expressly giving a right of appeal from the decisions of the county court, but the reasonable construction is, that in that respect also, the decisions of the county court were-intended to be put upon the same footing as were the decisions. of the county judge under the original acts. It certainly was not intended to abrogate the right of appeal, inasmuch as the provisions giving it were retained ; but those provisions are wholly nugatory, if they do not apply to decisions of the county court,, since the county judge no longer has jurisdiction to entertain proceedings under the act.

Next, it is urged that the notice of appeal should have been served upon the petitioners and the owners of the land. The; decision of the county court, from which this appeal is taken, was rendered upon an appeal to that court from the determination of the commissioners. In accordance with the act, that appeal was taken by serving notice on the commissioners. It was not necessary to notify any other person. (Act of 1869, § 5.) And it does not appear that any other was notified. As. the commissioners were the only respondents before the county-court, they are the only persons to be notified of the present, .appeal.

It is insisted that the appeal should be dismissed, because no error was assigned in the notice of appeal from the determination of the commissioners, and because certain questions, submitted by this court for re-argument, were not before the county court. The notice of appeal need not contain a specification of errors. (§ 5.) Upon this point the respondents’ counsel refers to section 10 of the act of 1869, as amended in 1871. That section relates to appeals from assessments, and the specification of errors required by it, need not be contained in the notice of appeal. Whether the questions submitted for re-argument properly arise on this appeal will be considered when the questions are reached.

Another position taken in support of the claim that the appeal should be dismissed, is, that no lands of the appellant were taken by the respondents, and he has, therefore, no standing in court and no right to prosecute the appeal. It is a sufficient answer to this position, to call attention to the facts that the appellant is named in the petition as one of the owners or possessors of land to be affected by the proceeding; that the case shows that he was served with notice of the determination of the commissioners; that his appeal from such determination was entertained by the county court, and it does not appear that the objection under consideration was taken there ; and, finally, that the decision of the county court appears on its face to directly affect his interests. It is not necessary that his land should be actually taken and condemned; if he is the owner or possessor of land in any way affected by the proceeding, the act requires that he be made a party, and to whatever extent his interests are involved, he has a right to be heard. If, as is suggested by the respondents’ counsel, all the other parties have voluntarily surrendered their lands for the purposes of the drainage, the proceeding will not be disturbed as to them, even should he succeed in his appeal. And, on the other hand, he is not to be affected by their acquiescence.

It is contended that the appellant is not in fact a party, his name being William II. Burk, and the name in the petition being Henry Burk. It is plain, from the papers before us, that he is the person intended. The case states that notice of the determination of the commissioners was served upon “the appellant.”

Finally, it is urged that the appeal should be dismissed because the judgment from which it is taken is not a final judgment. The decision appealed from affirmed the order of the commissioners, with a modification which provided that, on request of Burk, the commissioners should open a drain on his lands. The order was final, so far as the action of the court was concerned. The fact that it gave Burk an election made it none the less final.

On the merits, the only questions open to the appellant relate to the jurisdiction of the county court over the subject-matter. Questions of that nature can be considered at any stage of the proceeding, and may be raised, even for the first time, in the appellate court. Objections to the jurisdiction are not waived by not being taken in the court below. (People v. N. Y. Marine Court, 3 Abb. Pr. R., 309; S. C., 13 How. Pr., 260.) Nor can the court acquire jurisdiction by the laches of the party proceeded against. (Titus v. Relyea, 8 Abb. Pr., 177.) Nor by his express consent. (Dudley v. Mayhew, 3 Comst., 9.)

The chief ground of objection to the jurisdiction is, that it nowhere appears in the proceedings that the proposed drainage is necessary for the public health. Neither the commissioners nor the court have determined such necessity to exist, nor have the petitioners alleged it. In the Matter of Draining Swamp Lands in the Town of Chili (5 Hun, 116) it was said by the court in this department that “ the provision, in respect to the public health, was doubtless inserted in the act of 1869, as an amendment of the general drainage act of the Revised Statutes, because the constitutionality of that act had been questioned, and to obviate that objection which was clearly sound.” And in The Matter of Ryers, etc. (72 N. Y., 1) the Court of Appeals held that the object for which drainage may be had and lands taken, under the acts referred to, is solely for public health. As it does not appear that the drainage proposed in this proceeding was necessary for that purpose, it follows, from the authorities cited, that the proceeding was not authorized by the statute, and that the court had no jurisdiction.

■ But it is contended by the respondent’s counsel that although the appellant may have been a proper, and even a necessary party to the proceeding, inasmuch as he had an interest in land to be affected by the proposed drainage, yet his land was not actually taken, it was merely subjected to consequential injury, by reason of the discharge upon it of the water conducted along the ditch constructed on the lands of other owners for the purpose of the drainage in question, and, therefore, he cannot challenge the validity of the proceeding. The appeal papers do not expressly describe the appellant’s interest, or state how it is affected, but it is probable, from the terms of the order appealed from, that the claim of the respondents’ counsel, in that regard, is substantially correct. But assuming that the appellant’s damages, so far as the work of drainage has progressed, are consequential merely, it by no means follows that he may not challenge the jurisdiction of the court. The respondents’ counsel relies upon the doctrine that to entitle the owner of property to protection under the constitu-. tional provision that private property shall not be taken for public use without compensation, the property must actually be taken in the physical sense of the word, and that the proprietor is not entitled to claim remuneration for indirect or consequential damage. But that doctrine applies only to cases where the injury results from the lawful exercise of the right of eminent domain. It rests on the ground that such indirect loss must be borne by the individual for the common benefit. If, therefore, this case is not one in which the right of eminent domain can be invoked, as we have seen is the case, the appellant has a clear right to take the objection that the proceeding is void for the want of jurisdiction.

But the order appealed from, as modified, has the effect to take the appellant’s land, in the strictest sense of the word, and that too, without compensation. The drain already constructed by the commissioners is to be extended across his cultivated lands, for the purpose of carrying off the water which such drain brings to his boundary line. True, that is to be done only on his request, but if he withholds his request he will be subjected to the alternative of having the water of the ditch discharged upon his land, without any channel to carry it off. If he is confined, to these two alternatives, he may be compelled to ask the commissioners to take his land for the ditch without compensation, in order to escape a worse fate.

We are also inclined to the opinion that the detérmination of the commissioners is void, for the reason that it does not determine that the construction of the ditches was necessary in order to drain the lands of the petitioners, or either of' them, or the lands described in the petition. They determine merely that it was necessary “ to carry off surface water from farm lands and the highways.” The statute confines the proceedings to the lands of the petitioners, or the lands described in the petition, and unless there is a necessity for draining them, no valid order for drainage can be made.

Neither do the statutes authorize the construction of ditches to drain highways. The care of the public highways is confided to the commissioners of highways, and it is not to be presumed that the Legislature intended to interfere with their duties, by the statutes in question, in the absence of language indicating such intention.

For these reasons we think the determination of the commissioners and the order of the county court appealed from, should be reversed, so far as they affect the appellant, with costs to the appellant.

Talcott. P. J., and Hardin, J.,- concurred.

The determination of the commissioners and the order of the county court appealed from, reversed, so far as they affect the appellant, with costs to the appellant.