Rochester Water Works Co. v. Wood , 41 How. Pr. 53 ( 1871 )

By the Court, Mullin, P. J.

The charter of the Rochester Water Works Company (Laws of 1852, ch. 356, §§ 8-11) provides that it may acquire title to real estate, for the purposes of its incorporation, and if it cannot agree with the owners of the land required, it may apply to the Supreme Court, at any term thereof held in the seventh judicial district, for the appointment of three .commissioners, by whom the compensation to be paid -for the damages suffered or to be suffered by reason of taking land and water, and constructing any of the works of the said company, shall be ascertained and determined. RTotice of the time and place of hearing-before the commissioners' is to be given to the owners of land, &e., and the commissioners are to hear the parties, and to report- in writing the amount of damages ascertained and assessed by them. The company, or any owner, may appeal from the determination of said commissioners, to the court, and upon the report and such further evidence as may be produced before it, the court may'affirm the proceedings of the commissioners, in whole or in part, or may increase or diminish the amount of compensation.’ And.if the proceedings have been irregular, it may set them aside, and order new proceedings and appraisement; and it may make such’orders in reference to the proceedings of the commissioners, and for notices to the parties, as the nature of the case may require.

Under these provisions, the company procured three commissioners to be appointed to appraise the damages sustained by the defendant, Wood, by reason of the taking of a part of his lands for the purpose of laying therein its pipes, to conduct water from the reservoir of the company to the city. The commissioners, after hearing the parties,. ' assessed the defendant’s damages at the sutia of $900. From this appraisal the company appealed to this court, and on the hearing at the special term, additional evidence was given upon the question .of damages, and the court reduced them to $250, and confirmed the appraisal for that sum. From that order the defendant, Wood, appeals.

The counsel for the company concedes that the provisions of the charter authorizing the court to increase or reduce the amount of damages reported by the commissioners, is unconstitutional and void. The constitution provides (art. 1, § 7) that when private property shall be taken for any public use, the compensation therefor, when not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. It does not require argument to demonstrate the proposition that when .the constitution requires damages to be assessed by a jury of twelve men, or by three commissioners, it cannot be done by one, nor by three or more judges of this or any other court. The legislature is entrusted with the discretion, to provide for appraisement by a jury, or by three commissioners, and it can provide for no other' mode of ■ assessment. It was competent to provide for an appeal to the court, in order to protect the parties against an unjust appraisal, and upon that appeal the court could confirm or set aside the assessment, and correct irregularities committed by the commissioners or parties in the course of the proceedings. And this was the extent of the power possessed by the court. It is unnecessary to enter into an examination of the evidence. It is manifest that the damages are very large, in view of the quantity" of land taken, and of the use to which it is to be put. The court should have set aside the appraisal, and appointed new commissioners. This court has the power, and it is its duty, to make such an order as the special term should have made. . .

[Fourth Department, General Term, at Rochester, January 2, 1871.

The order of the special term is therefore vacated; and. it is ordered that the appraisal of the damages by the commissioners be, and the same are hereby set aside, and the proceedings are remitted to the special term, for the appointment of new commissioners; $10 costs of the appeal allowed to the appellant.

Mullin, P. J., and Johnson and Talcott, Justices.]