People ex rel. Smith v. Taylor

By the Court, Hogeboom, J. Three objections are made to the validity of the proceedings in laying out the private road in question, which I will consider in their order. 1. It is objected that the statute requires that “ an application for a private road shall be made in writing, specifying its width and location, courses and distances,” (Laws of 1853, ch. 174, § 1,) and that this application gives neither the location, courses nor distances; that the jury, therefore, could not know the line of the proposed road, nor the quantity or location of the land; nor could they properly determine upon its necessity, or the amount of damages to be assessed; that this is a jurisdictional and fatal defect, and vitiates all the proceedings. The object of the description required by the statute, which also requires the “ names of the owners and occupants of the land through which the road is proposed to be laid out” to be stated, is obviously for the purpose of enabling the owner to understand what portion of his lands is intended to be taken, and the jury intelligently to determine upon the necessity of the road, and to assess the damages. If, therefore, this has been substantially done, so as to accomplish these objects, the intent of the statute is satisfied. Now the owner of the land to be taken, and the width of the proposed road, are clearly specified; the general location, direction and distance are substantially given; the point of commencement is given with reasonable accuracy, and the general course indicated and limited by prominent, visible, [484] natural and artificial monuments. It is true the precise absolute location throughout is not given; nor do I conceive it necessary, being left at liberty slightly to fluctuate according to the views of the jury, and so as to do the least possible harm to the owner of the land. It is true, also, that the courses, according to the surveyor’s or mariner’s compass, are not given; nor the distances on each course. But I cannot regard that as absolutely indispensable; • especially when it appears by the return that the precise line actually adopted —in all respects conforming to the application—was actually marked out upon the ground—was seen and known by all the parties interested and by the jurors, before assessing the damages, and was at the request of the relator afterwards surveyed and described by courses and distances. The observance of all these precautions renders it clear that no mistake could have been made as to the actual location of the road, the quantity of land taken, or as to the materials from which the jurors were enabled to take an intelligent view of the necessity of the road and make up an intelligent opinion as to the damages. I regard the statute as substantially complied with. 2. It is again objected that the jury -were not summoned as required by the statute, and were not freeholders as required by the constitution. (Art. 1, § 7.) It does not expressly appear that the jurors were freeholders. Certainly it does not appear that they were not freeholders ; no objection was made upon that ground. On the contrary, it appears that the list being presented, the parties expressly agreed upon the six who afterwards acted as jurors in making the assessment. The absence of proof that any of them were not freeholders—the failure to object on that ground—the express assent to the jurors must be deemed, I think, sufficient proof that they possessed the necessary constitutional and statutory qualifications, or at least amount to a waiver of a constitutional provision made for a [485] party’s own benefit. I do not think this objection ought to prevail. [Albany General Term, September 3, 1860. 3. It is objected that the terminus of the road actually laid out is different from that applied for. The answer is, that this is not so in point of fact, but that they are identical, though described under different names. This is expressly stated in the return; and after such a statement, it would be sacrificing substance to form to give effect to this objection. I think none of the objections made to the validity of the proceedings are well taken, and that therefore the proceedings should be affirmed. Gould, Hogeboom, and Peckham, Justices.]