
    The People ex rel. James Eckerson et al., App’lts, v. The Board of Trustees of the Village of Haverstraw, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed January 31, 1893.)
    
    Highways—Laying out boad—Laws 1870, chap. 291.
    Where proceedings are taken for laying out a street in a village under chap. 291, Laws of 1870, it is for the trustees to determine in the first instance the boundaries and extent of the road to be opened and the extent of the land to be taken. The jury has but one function, viz., to determine the damages to the land owners whose lands shall be taken. They cannot determine what land shall be taken or when and for what distance a street shall extend.
    Appeal from judgment of the supreme court, general term, second department, affirming order laying out a highway.
    
      Calvin Frost, for app’lts ;
    
      F. A. Brewster, for resp’t.
    
      
       Reversing 47 St. Rep., 891.
    
   Andrews, Ch. J.

It is conceded that the proceedings for laying out streets in the village of Haverstraw are governed by the provisions of the general act, chap. 291 of the Laws of 1870, “ for the incorporation of villages.” The provisions on this subject are contained in title seven. Villages incorporated under that act are constituted separate highway districts, and the board of trustees of any village are made commissioners of highways in and for the village and are authorized to lay out and open streets therein under the conditions and circumstances specified. Tit. 7, § 1. The proceeding, when taken adversely to the property owners, to be instituted by petition of at least ten freeholders of the village, “ which petition shall specify the improvement to be made, describe the land to be taken, state the owner or owners thereof, when known, and be filed in the office of the clerk of the village.” The trustees, on the presentation of the petition, are required to meet and examine the same, “ and if they decide the improvement shall be made, they shall so decide by resolution, to be entered in the minutes of the board.” It is made their duty, on deciding in favor of the improvement, thereupon to post in five public places in the village “ a correct description of the lands to be taken for such improvement,” together with a notice for the hearing of objections “ that may be made to the taking of such lands or making such improvement,” which notice is also to be served on the owners of the lands proposed to be taken.

The trustees may, after such hearing, deny the petition, “ or declare by resolution, to be entered in their minutes, their intention to make the said improvement, and proceed to obtain possession of the lands described in the manner provided by the act.” Tit. 7, §1.

The second section of the act authorizes the board, in case the damages are not agreed upon, “to cause a jury of six freeholders tobe summoned to determine and award said damages."

In May, 1891, a petition of the requisite number of freeholders of the village of Haverstraw was presented to the board of trustees of the village for the laying out of a street or public highway in the village “■mpon the lands of James Eckerson, J. Esler Eckerson, Maria E. Eckerson, Harriet A. Eckerson, Sarah L. Eckerson and M. Bogert Eckerson, and upon lands now included in and forming part of Bockland street, or so much thereof as may be necessary to form a proper connection between the street and highway recently dedicated by Brewster J. Allison, Esq., to said village, which terminates in the center of Warren avenue and the north end of Bockland street, as it now exists, and which are more particularly described as follows, viz.: Beginning at a point in the center of Bockland street, two hundred and ten feet southerly from the center of Warren avenue, as it is laid out on what is known as the map of the Allison farm, and as it was also laid out by the order of the commissioners of highways in the year 1868, and was formerly traveled and used, and running thence north tine-fourth of a degree west two hundred and ten feet to the center of Warren avenue; the said line above described to be the center of the proposed street, and said street to be of the width of fifty feet, that is to say, twenty-five feet on either side of said center line.”

It is the obvious construction of this petition that it asked for the taking of such part only of the strip of land described in the petition, for the proposed street, as should be necessary to connect Warren avenue and the north end of Bockland street. If a strip two hundred and ten feet in length was required for that purpose, then the petitioners prayed that land to that extent should be taken; if not so inquired, then that only such part of said strip “as maybe necessary” should be taken and appropriated for the proposed street.

The petitioners left it to the trustees to determine how far the north end of Rockland street was from the center of Warren avenue, and whether the strip of land to be taken should be 210 feet in length, or less, was to depend upon the ascertainment of that fact.

The situation will be more clearly understood by a short explanation. The street petitioned for, was to run northerly and southerly, parallel with the Hudson river. Warren avenue ran from the river, at right angles to the proposed street. North of Warren avenue one Allison had dedicated a north and south street, terminating on the south at Warren avenue. The proposed street would form an extension southerly of the street dedicated by Allison, and was to extend so far southerly from Warren avenue as would be required to make a connection with the north end of Rockland street, a highway already existing. The plan, if carried out, would make a continuous street all along the river front. How far north Rockland street extended was, it seems, in doubt. It depended upon questions of dedication and user. The board of trustees, after receiving the petition and after having taken the preliminary proceedings prescribed in the statute of 1870, passed a resolution laying out the proposed street, describing the street and the lands to be taken in the precise language used in the petition. The board thereby necessarily left the length of the proposed street uncertain, and consequently the extent of the lands to be taken. They then by resolution, reciting the previous proceedings, directed the summoning of a jury to ascertain the damages of the owners of the lands, and the jury after a protracted hearing awarded the relators the sum of ninety-two dollars “ for ninety feet of land taken to connect the northerly end of Rock-land street with a public highway, dedicated to said village by Brewster J. Allison, at the center of Warren avenue.”

The substance of the proceeding was that the board of trustees remitted to the jury the determination of the question, how far north Rockland street extended, and the jury having decided that it extended to within ninety feet of Warren avenue, the jury awarded compensation for land for that distance only.

We are of opinion that it was for the trustees to determine in the first instance the boundaries and extent of the road to be opened and the extent o£ the land to be taken; in other words, to make a survey and definite description of the proposed street. The statute requires that the trustees in the preliminary notice shall give “a correct description of the lands to be taken.” The statute can only be satisfied by a reasonably accurate description by boundaries and fixed monuments. How far the road was required to be laid to accomplish the purpose desired, it was for the board to determine. If this was uncertain because of the uncertainty of the extent of the dedication or user of Rockland street, the board could not escape the responsibility of accurately defining the extent of the proposed street and place it upon the jury. The jury had but one function, viz., to determine the damages to the land owners whose lands should be taken. They had no power to determine how long the street should be, depending upon their judgment on the questions of user or dedication of the ■existing street, or its extent as a public highway.

It may be that where, by the order laying out, the termini of the proposed street are accurately defined, the jury may, for the purpose of ascertaining the damages, inquire whether any public easement already exists over the land or any part thereof. See Baldwin v. City of Buffalo, 35 N. Y., 375. But the function of determining what land shall be taken, and where, and for what distance a street shall extend, is separate and distinct from that which alone belongs to the jury, viz.: the ascertaining of damages for lands described and defined in the order laying out the street or highway.

The act authorizes an appeal from the award only, and the . amount is the only question which can be reviewed thereon.

We are of opinion that the order laying out the street was invalid and conferred no jurisdiction to take the further proceedings, and that the difficulty was not cured because the counsel for the trustees, in the course of the hearing before the jury, limited the claim of the village to a strip of land ninety feet in length.

The relators objected to the successive proceedings as they took place and have in no way waived their rights.

It is unnecessary to consider the other objections relied upon.

The result is that the order of the general term should be reversed and the proceedings of the board of trustees set aside, with costs in all courts.

All concur.  