People ex rel. Edick v. Osborn

By the court, Bronson, J. The judges had no jurisdiction to proceed on the appeal, until a notice of eight days of the time and place of meeting had been served on the commissioners. 1 R. S. 518, § 87, 88. The notice should be in writing. Gilbert v. Columbia Turnpike Co., 1 Johns. Cas. 107. Although the notice need only be delivered to one of the commissioners, it is a notice to all; and the one who receives it should give information to the other commissioners. Had all or a majority of the commissioners met with the judges, it would, perhaps, be a sufficient answer to the objection | but it is not enough that one of the commissioners was present. It cannot be inferred from that fact that all of the commissioners were advised of the proceeding, even if a notice by parol was sufficient. If the commis [188] sioners can waive such a notice as the statute requires, there has in this case been no such waiver by a majority of those officers. A notice in writing of three days to the occupant of the land through which the road is to run, was also necessary before the judges could proceed to lay out the highway. 1 R. S. 519, § 91, and p. 514, § 62. Edick had no personal notice, either verbal or written. The information given to his son was of no importance. And besides, it is impossible from the return to say whether that was a notice for the meeting of the judges on the day the notice was given, or for their subsequent meeting on the 10th of November. The fact that Edick was sworn as a witness on the 10th of November does not establish a waiver of legal notice. So far as appears, he came there in obedience to process of subpoena, (§ 89,) without having had an opportunity of preparing to enforce his objections to the road. It seems, also, from the return, that the judges decided the whole merits of the controversy at their first meeting on the 24th of October, before Edick had ever heard of the appeal. They viewed the route of the road, and made an order in writing that the proceedings of the commissioners be reversed, and that the road be laid out pursuant to the prayer of the petition. Their subsequent meetings seem only to have been held for the purpose of making a survey or an actual location of the highway, and not for the purpose of deciding the main question involved in the appeal. Proceedings reversed»