
    Matilda McCrea, Appellant, v. The Village of Champlain and Others, Respondents.
    
      Water commissioners of a village organised under chapter 181, Laws of 1875—pro-cedure by which, after the repeal of the act of 1875, lands and water rights may be condemned.
    
    "While the right of a village board of water commissioners, organized under chapter 181 of the Laws of 1875, to condemn lands and water rights is, notwithstanding the repeal of the. act of 1875 by chapter 414 of the Laws of 1897, preserved by the Statutory Construction Act (§ 31 of chap. 677 of the Laws of 1892), the last-mentioned act did not give to the board any right in the method of procedure by which such lands and water rights should be condemned and taken; and where proceedings for that purpose are instituted by such board after the repeal of the act of 1875, they must conform to the requirements of chapter 414 of the Laws of 1897.
    Appeal by the plaintiff, Matilda McOrea, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Clinton on the 14th day of April,-1898, upon the decision of the court rendered after a trial at the Clinton Special Term dismissing the plaintiff’s complaint.
    This action was one brought against the village of Champlain and its board of water commissioners, for an injunction restraining them from interfering with the water rights of the plaintiff, it being alleged that the defendants improperly prevented the flow and were taking certain waters of the Chazy river, which flowed past the plaintiff’s premises, and was used by the plaintiff as a water power.
    After the commencement of the action the defendants instituted condemnation proceedings to acquire the right to take the water, and in such proceedings interlocutory judgments were entered condemning such water rights by the water commissioners.
    After the entry of such judgments an amended answer was served upon plaintiff, by which such judgments were pleaded in bar of the plaintiff’s action.
    Upon the trial two judgments and judgment rolls in such proceedings were put in evidence, the first in a proceeding entitled “ The Village of Ohamplaim, Plaintiff, agst. Matilda MeOrea and Emmett M. Fitch,” and the second entitled '• The Village 
      
      of Champlain agst. Matilda McCrea and The First National Banli of Champlai/n.”
    In the first-entitled proceedings the petitioners in their petition alleged that, before entering upon any of the lands or use of the waters of the stream, they caused a survey and map to be made, with an order signed by them and attached thereto, as required by law, and filed the same in the Clinton county clerk’s office.
    In the second proceedings the petitioners alleged that their proceedings were instituted, as required by section 223 of the Village Law of 1897 (Chap. 414), and alleged the making of a survey and map, and the filing of the same in the Clinton county clerk’s office.
    Both proceedings were for the same general purpose, but to take differently described water rights, and the map and order appear to have been the same in each; the map was introduced in evidence, and it appears that it was filed July 2, 1897.
    These proceedings seem to have been regarded as a bar to the maintenance by the plaintiff of her action, and it was accordingly dismissed.
    
      John P. Fellas, for the appellant.
    
      Wilmer H. Dunn, for the respondent Village of Champlain.
    
      Weed, Smith & Conway, for the respondents Roberts, Graves and Brassard, as water commissioners, etc.
   Herrick, J.:

The necessary steps to organize a village system of water works were taken under chapter 181 of the Laws of 1875, and, although such act has since been repealed by chapter 414 of the Laws of 1897 (The Village Law), still everything that has been done by the village prior to, July 1, 1897, when chapter 414 of the Laws of 1897 took effect, is preserved to it by section 31 of the Statutory Construction Act (Chap. 677, Laws of 1892). After organizing the water department, and determining upon the system, comes the acquisition of lands for the uses of the department; they may he acquired by purchases or condemnation.

The condemnation proceedings are separate and distinct proceedings from those organizing the water department and determining what system it will adopt, and whether it will purchase an existing private system or construct one of its own; and such condemnation proceedings are regulated by the laws in existence when they are instituted. While the right to condemn lands and water rights which they had secured by their organization under the Laws of 1875 was secured and preserved hy the Statutory Construction Act, still that act did not give them any right in the method of procedure by which they should be condemned and taken. (Lazarus v. M. E. R. Co., 145 N. Y. 581.)

Condemnation proceedings, I think, may be said to be instituted, not when application is first made to the court, but when the maps and plans showing the water rights and lands intended to be acquired are filed in the proper office or offices.

In the case before us, the proceedings to acquire the plaintiff’s water rights were not instituted until after July 1,1897, and at that time chapter 414 of the Laws of 1897 was in force. Section 223 of that act provides for the filing of a map and plans in the office of the village clerk, and a certified copy thereof in the county clerk’s office.

It does not appear from the petition referred to that any plans were prepared or filed, and the map was filed in the county clerk’s office July 2, 1897, and not in the village clerk’s office.

In the cases of The Village of Champlain v. Matilda McCrea, and The First National Bank of Champlain (33 App. Div. 259) and The Village of Champlain v. Matilda McCrea and Emmet M. Fitch (Id. 636), we held these defects to be fatal, and set aside the orders and interlocutory judgments entered in such proceedings upon the ground that the court did not acquire jurisdiction.

We refer to the memorandum.then handed down as a sufficient statement for our reasons for so holding.

The judgments plead in bar, herein referred to, were open to attack for lack of jurisdiction in the court rendering them. The court never having acquired jurisdiction, the judgments are void and constitute no bar to plaintiff’s action, and for that reason the judgment should be reversed and a new trial granted, with costs to abide the event.

All concurred, except Landon, J., dissenting.

Judgment reversed and a new trial granted, costs to abide the event.  