
    Dyckman v. City of New York.
    
      Oroton Water-works. — Damages.
    Proceedings under the right of eminent domain, against tenants in common, should he several, not joint; but the parties may waive the objection, cy appearing and contesting the proceedings ; and in such case, a tender of the sum awarded, to one of them, is sufficient.
    To confer jurisdiction of proceedings by the Croton water-commissioners under the act of 1834, c. 256, it is necessary to show an unsuccessful at' tempt to agree with the owners for the purchase of the land ; but if the objection be not made in the direct proceeding, it cannot be set up in a collateral one.
    A statement of such fact in the petition, under oath, is, primd facie, sufficient to confer jurisdiction; but, it seems, that it may be controverted at the hearing.
    Dyckman v. City of New York, 7 Barb. 498, affirmed.
    Appeal from the general term of the Supreme Court, in the first district, where a nonsuit entered on the trial had been affirmed, and judgment perfected in favor of the defendant. (Reported below, 7 Barb. 498.)
    This was an ejectment by William W. Dyckman against the corporation of the city of New York for an undivided seventh part of a piece of land in Greenburgh, Westchester county, which had been appropriated by the Croton water-commissioners for the construction of their aqueduct.
    *On the trial, in 1846, before Barculo, J., the plaintiff’s title, which was admitted by the defendant’s counsel, was shown, as follows: William N. Dyckman, the plaintiff’s father, died seised of a farm in Greenburgh, of which the premises claimed were parcel. By his last will and testament, bearing date the 2d February 1820, and admitted to probate on the 12th April 1834, he devised all his real estate to his widow and six children, of whom the plaintiff was one, share and share alike. The widow and children continued to occupy the farm, until some time in the year 1838, when the defendant entered and took possession of the piece of land in question. Having shown these facts, the plaintiff rested.
    The defendant then offered in evidence a copy of a petition to the vice-chancellor of the first circuit by the Croton water-commissioners, under the act of 1834, c. 256, sworn to by one of their number, on the 28th July 1837, and a notice that such petition would be presented on the 12th September then next; to which the plaintiff’s counsel objected, until the defendant had first shown an attempt on the part of the water-commissioners to agree with the plaintiff, as the owner of the land, with reference to the amount of compensation to be paid. The judge, however, directed the petition, and all the accompanying papers to be read, subject to any objections on the part of the plaintiff.
    The petition set forth, that the water-commissioners had entered upon the duties required of them by the act, had made a report to the common council of the city of New York, of their proceedings and the plan adopted by them, which plan was approved by the common council, and such council was authorized by a vote of the majority of the electors of the city to proceed in raising the money necessary to construct the works mentioned in the act; that, thereupon, the common council instructed the commissioners to proceed in the work. That they had caused surveys to be made of the pieces of land, water and property which would be required for the construction of the work, and the. purposes of said act, and caused maps of such surveys, containing a description of the property required, to be filed with the clerk of the county of Westchester. That, for the construction of the work, and for the purposes of said act, it was required that the mayor, aldermen and commonalty of the city of New York should become seised in fee of the following property: (describing the lands in question.) That Rebecca Dyckman, widow and six children (naming them), including the plaintiff, were seised of the land; that they had *offered to purchase-the land of the owners thereof, but had not been able to agree with either of them, for the price or amount of compensation to be paid them therefor. The petitioners, therefore, prayed for the appointment of three indifferent persons to examine the property and estimate its value, and to report thereon. And that on the confirmation of the report, a decree might be made, directing that, upon the payment of the sums mentioned in the said report, within two months thereafter, to the owners, the title to such property should become vested in fee in the defendant.
    The defendant’s counsel also read a notice that such petition would be presented to the vice-chancellor on the 12th of September 1837, and a motion made' that its prayer be-granted; together with an affidavit of the service of such petition and notice upon the widow and children; the service on three of the children, of whom ¿he plaintiff was one, having been made by delivering a copy of such petition and notice to their mother, at her residence, on the farm.
    Also, an order made by the vice-chancellor, on the 13th September 1837, upon such petition, appointing appraisers as prayed for; and the report of the appraisers, by which the entire value of the premises described in the declaration was estimated at $3000. Also, an order made on the 10th April 1838, reciting that William N. Dyckman appeared as counsel for the owners, and opposed the confirmation of the said report, upon the ground of the inadequacy of the damages awarded, and referring the matter back to the appraisers, to receive the testimony of the parties, respectively, and to review and re-examine their report, and make a further report in the premises. Also, a second report of the appraisers, adhering to their former valuation of the premises, and an order of the vice-chancellor, made on the 21st May 1838, confirming the last report — William N. Dyckman *aSain aPPearing as counsel for all the owners, and opposing such confirmation.
    It was shown, that two days after the making of this order, the amount of the appraisal was tendered to Jonathan 0. Dyckman, a brother of the plaintiff, at the residence of the family, who refused to accept it, saying, “We have made up our minds not to take the appraisal; we are going to fight it out.” Jonathan 0. Dyckman had been the principal actor before the appraisers, when the property was examined by them and the appraisal made. An application was, afterwards, and within sixty days from the date of the last-mentioned order, made to the vice-chancellor, for leave to pay the money into court, which application was opposed by counsel on behalf of 'the owners, and denied, on the ground that the order confirming the second report had been appealed from.
    The plaintiff then offered to show, by Charles Dusen-bury, one of the water-commissioners, that no attempt had been made to agree with him as to the amount of compensation. This offer was objected to, and overruled, and an exception taken. He then proved by Jonathan 0. Dyckman that the latter had no authority to act for the plaintiff in the premises; that the person who tendered the money did not get out of his wagon, nor go into the house, where his mother and sisters were at the table; and that the family had employed the plaintiff to act in their behalf.
    The plaintiff’s counsel then insisted that the documentary evidence produced by the defendant was insufficient and ought not to be received, for the following reasons: 1. Because the proceedings against the owners were joint, instead of being several. 2. Because the defendants had shown no attempt to agree with the *owners. 3. Because no personal notice had been given to the plaintiff, of the application for the appointment of appraisers. 4. Because there was no proof of any decision on the appeal. 5. Because the defendants could' not become seised of the premises in question, except upon payment of the appraisement.’ 6. Because no tender was made to the plaintiff. 7. Because Jonathan 0. Dyckman, to whom the tender was made, had no authority to act for the plaintiff.
    The learned judge overruled the objections, to which an exception was taken; and thereupon, on motion of defendant’s counsel, entered a nonsuit; and a motion for a new trial, made at general term, upon a bill of exceptions, having been denied, and judgment perfected in favor of the defendant, the plaintiff took this appeal.
    
      Wallis, for the appellant.
    Willard, for the respondent.
   Foot, J.

This is an action of ejectment to recover an undivided seventh part of a piece of land in Westchester county, forming a portion of the site of the Croton aqueduct. The respondents are in possession, under a title acquired by proceedings under the act for supplying the city of New York with water. (Laws of 1834, c. 256, p. 451.) The appellant’s title, irrespective of these proceedings, is unquestioned, and he claims that the proceedings are void, and give the respondent no title.

The first objection is, that the vice-chancellor had no jurisdiction, because there had been no disagreement between the commissioners and the owner, “as to the amount of compensation to be paid to such owner,” before the application was made to him for the appointment of appraisers, as provided in the 13th section of the act. The application, verified by the oath of one of the commissioners, stated that such disagreement had oc-cmre<^ -^°^ce time an(l place of *making the application was served on the appellant; the appraisement was made; and on the motion to confirm it, the appellant appeared before the vice-chancellor, by counsel, and opposed the confirmation, “ upon the ground of inadequacy of the damages awarded” to him. The motion to confirm was denied, and the matter referred back to the appraisers, to review their appraisement; they did so, and on the motion to confirm the re-ap-praisement, the appellant again appeared by counsel, and opposed the confirmation, but on what grounds does not appear. The second appraisement was confirmed, and the amount of it tendered, within the two months provided for the payment of it, by the 14th section of the act, and declined. The respondents then made an application to the vice-chancellor for leave to pay the money into court, which the appellant, by counsel, opposed, on the ground that an appeal from the appraisement was pending, and it was refused.

The respondents took possession of the land, and built the aqueduct, and now, in this action of ejectment, the appellant claims to overhale, collaterally, the proceedings before the vice-chancellor, and on the trial, offered to prove, that there was no disagreement between the commissioners and himself respecting the amount of compensation. This testimony was rejected by the court.

No prerogative of sovereign power should be watched with greater vigilance, than that which takes private property for public use; it should never be exercised, except when the public interest clearly demands it, and then cautiously; and the requirements of the statute authorizing its exercise must be strictly, pursued; these propositions are in accordance with numerous decisions in our courts. In the present instance, the statute authorizes the.exercise of this power, in cases where the commissioners and owners disagree as to the amount of compensation. The legislature manifestly intended to give the owner the benefit and opportunity of a voluntary sale, and required the respondents to make a fair and honest *effort to purchase the land of him, before commencing proceedings to take it adversely. Hence, the disagreement of the parties as to the amount of compensation, was a material requirement of the statute, and an essential pre-requisite, without which the vice-chancellor had not jurisdiction. (Gilbert v. Columbia Turnpike Co., 3 Johns. Cas. 107.) The duty of proving the disagreement, in this case, lay upon the respondents, for the rule is, that the party who claims title under the exercise of the right of eminent domain, must show affirmatively, that the requirements of the statute have been complied with. That duty was performed, by producing the record of the proceedings before the vice-chancellor, by which it appeared, that such disagreement had occurred; and the real question in this cause is, whether the appellant could contradict the record, by proof, and thus collaterally open and review the proceedings before the vice-chancellor.

On examining the authorities respecting the conclusiveness of records, on jurisdictional questions, there will be found great and irreconcilable diversity, and I shall place my opinion on this question on one single proposition, which is supported by several cases, and contradicted by none; and that is, that when the jurisdiction of a court of limited authority depends on a fact, which must be ascertained by that court, and such fact appears, and is stated, in the record of its proceedings, a party to such proceedings, who had an opportunity to controvert the jurisdictional fact, but did not, and contested upon the merits, cannot afterwards, in a collateral action against his adversary in those proceedings, impeach the record, and show the jurisdictional fact therein stated to be 'untrue. (Mather v. Hood, 8 Johns. 50-1; Griswold v. Stewart, 4 Cow. 458; Van Sternberg v. Bigelow, 3 Wend. 42; Brittain v. Kinnard, 1 Brod. & Bing. 432; s. c. 4 Moore 50; Smith v. Elder, 3 Johns. 113, and cases there cited.) This proposition justified the' rejection of the evidence offered on the trial of this cause.

*The next objection to the validity of the proceedings before the vice-chancellor is, the defectiveness of the notice to the appellant, of the application for the appointment of appraisers, it having been delivered to his mother, for him, at her residence, and with whom he resided, instead of being served on him, personally. There is no direction -in the statute respecting this notice; this objection, consequently, rests on general principles, and nothing is clearer, than that a party, entitled to notice of a judicial proceeding, by appearing in pursuance of it, waives all objections to its insufficiency.

The next objection to the proceedings is, that they were against the appellant and his co-tenants in common, jointly, instead of separately. On this subject, also, the statute is silent; consequently, this objection, like the preceding one, rests on general principles. I concur with Mr. Justice Edwards in his views on this objection; but there is still a more decisive answer to it, and that is, that the appellant should have taken advantage of this misjoinder, if such it was, in the proceeding before the vice-chancellor, and cannot avail himself of it in this collateral action.

The next and last objection to the proceedings is, that there was no payment, tender or offer to pay the amount of the appraisement. The objection to the tender is, that J. 0. Dyckman, one of the appellant’s co-tenants, to whom the whole amount of the appraisement was tendered, had not authority to receive the appellant’s share, for him, and whether he had or not, was a question of fact, which should have been submitted to the jury. The appellant cannot make this objection on his bill of excentions; he made no request to the judge, on the trial, to submit this question to the jury, nor has he taken any exception, on the subject of the tender, or offer to pay. The respondents offered in evidence the proceedings before the vice-chancellor; the appellant objected to their reception, for several reasons, and among them was this one — “because no tender was made to the plaintiff;” the judge admitted them, and the appellant excepted. The court *then non-suited the appellant, and he excepted, generally, and without specifying any grounds of-his exception. By all the decisions, he cannot now take advantage of the omission of the court to submit any question of fact to the jury, or that the proof was insufficient to establish any fact, which the court considered well proved.

Gardiner, J.

It appears by the testimony of witnesses, the report of the commissioners of appraisement, and the record of the proceedings before the vice-chancellor, that William N. Dyckman was retained and appeared as the counsel for all the persons interested in the premises in question, and made suggestions in their behalf, when the damages were appraised, and subsequently, before the vice-chancellor, opposed the confirmation of the report. No exception was taken, that the proceedings were against the defendants jointly; on the contrary, the litigation was upon the ground exclusively of the inadequacy of the damages awarded to the owners, as joint proprietors of the premises in question. No objection was interposed to the proceedings, on account of the want of personal notice to the plaintiff of the application for the appointment of appraisers. These matters, now insisted upon as depriving the vice-chancellor of jurisdiction, were irregularities, which could be, and were, waived, by the voluntary appearance of the plaintiff, and by his election to take the chances of a joint, instead of a several assessment of damages.

Another objection is, that the defendants had shown no attempt to agree with the owners for the purchase of the premises. The 12th section of the act of 1834 (Laws of 1834, c. 256, p. 453) provides, that in case of disagreement between the water-commissioners and the owners, as to the value of the property necessary for the work therein authorized, the vice-chancellor might, upon the application of either party, appoint commissioners, &c.

fail'are to agree, is a fact necessary to be alleged and proved. It was distinctly stated in the petition, and sworn to upon the knowledge of one of the commissioners; this was all that was necessary to give the vice-chancellor jurisdiction, primó, facie. The fact was an issuable one, which, if the appellant chose to controvert, must have been proved in the ordinary way, or the application have been dismissed. But he was not at liberty to lie by, until the appraisers had been appointed and the damages assessed, with the concurrence and after suggestions of his counsel; until the report had been confirmed and the land appropriated; and then, in ejectment, insist, that due proof was not made of a jurisdictional fact, which, if not admitted, was certainly not contradicted by him.

The appellant insists, that, even if proof was made, before the vice-chancellor, of the disagreement; yet, if the fact was otherwise, the proceedings were without jurisdiction and void. Hence, the offer of the appellant “ to prove that no attempt had been made to agree with the plaintiff,” admits, by implication, that the proper allegations were to be found in the petition, and that those allegations were supported by competent evidence. T am inclined to think, that if the requisite proof was made to sustain the allegation, that jurisdiction would attach, although the witness was mistaken or perjured.

Another objection is, that no tender of the damages awarded was made to the plaintiff. The answer is, that the application was made and the interest of the plaintiff appraised, as a joint-owner, with others, of the land in controversy. He, as we have seen, acquiesced in that mode of proceeding, and when an application was made to the vice-chancellor, to pay the award into court, for the benefit of the owners, it was opposed and defeated by his counsel. The respondents, then, did all that they were required to do; they made a tender to one of the owners, who ostensibly'acted for the others before the appraisers, in *showing the property, and in making suggestions as to the common interest, in which the plaintiff, at the time, concurred. The tender was made upon the premises, when the plaintiff was in the house; and refused, because the plaintiff, in common with the rest Of the family, was dissatisfied with the amount of the award, and for no other reason; this is apparent, from the testimony of the appellant’s own witness. It is sufficient, however, that Jonathan 0. Dyckman, to whom the tender was made, was a joint-owner and had acted with the family throughout the proceedings; although he was not formally constituted their attorney, as part-owner, he had a right to receive the money. (Chitty on Contracts -795; Bacon’s Ab., Tender, E.) The judgment should be affirmed.

Judgment affirmed. 
      
       As a payment to one of several joint obligees, is a payment to all, it as certainly follows, that a tender to one, is a tender to all. Warder v. Arell, 2 Wash. (Va.) 297, 300. And see Dawson v. Ewing, 16 S. & R. 371.
     