
    (22 Misc. Rep. 43.)
    In re PUGH.
    (Oneida County Court.
    December, 1897.)
    1. Highways—Establishment—Dam ages.
    Under Highway Law, § 84, making it the duty of the commissioners to-personally examine the highway for which an application has been made, the amount of damages to be assessed to the owner is largely within their discretion.
    2. Same—Jurisdiction—Waiver.
    An objection that the petition and notice for laying out a highway were insufficient, and therefore the. commissioners appointed thereunder had no-jurisdiction, cannot be raised after the merits have been decided.
    3. Same—Technical Errors.
    Technical errors by commissioners appointed in proceedings to lay out highways, in the admission of rejection of evidence, will not be regarded, where such errors do not lead to unjust results.
    4. Same—Elements oe Damages.
    In assessing damages for land to be used as a highway, the commissioners may judge of the value of the land by its present condition and apparent utility, and need not take into consideration future special uses contemplated by the owner.
    
      5. Same—Fencing.
    Highway Law, § 122, provides that, where a highway is laid out between the lands of different persons, the adjoining owners shall be paid for the fences they may be required to build by reason of the opening of the road. By statute, adjacent owners are required to maintain division fences. Commissioners to assess damages for a highway excluded evidence of the cost to the owner of fencing the highway on the division line. Held that, since an adjacent owner is not required to maintain any fence along the highway, the evidence was not admissible on that theory, though it would have been proper on the theory of the owner’s advantage to put up fences. G. Same—Appeal—Presumptions.
    It was presumed that the commissioners considered the cost of fencing a highway about to be laid out, as elements of damages, to the owner, though no evidence was admitted as to such cost.
    Application of Bichará J. Pugh for the laying out of a highway. The application was granted, and damages were awarded, and David J. Davis moves to vacate the decision.
    Motion denied.
    The commissioners appointed to lay out the highway were Albert T. Wilkinson, James A. Day, and Albert P. Seaton. They personally-viewed the premises, and took a large amount of evidence.
    Wm. A. Matteson, for the motion.
    L. D. Edwards, opposed.
   DUNMORE, J.

The evidence taken in this matter clearly sustains the finding of the commissioners as to the necessity of the highway in question and as to the amount of damages awarded. The statute (Highway Law, § 84) makes it the duty of the commissioners to personally examine the highway described in the application, and therefore doubtless contemplates that the amount of damages to be assessed shall be determined, at least in part, by their own judgment. In Re New York, W. S. & B. R. Co., 37 Hun, 317, the court said: “The commissioners viewed the premises, and had means for making up their judgment not possessed by this court, and which could not be returned to us.” It was held in Crouch v. Gutmann, 134 N. Y. 45, 31 N. E. 271, at page 55, 134 N. Y., and page 274, 31 N. E., that where, by stipulation of the parties, a referee was given an opportunity of viewing the premises and making personal inspection of the work, and he availed himself of such opportunity, his decision could not be set aside as against the evidence.

I do not think the point that the commissioners had no jurisdiction is well taken. There was a substantial compliance with the statute, and besides, if the petition and notice were insufficient, that point should have been raised by motion to set the order appointing commissioners aside. It would be a great waste of time, and therefore, I think, poor practice, to permit a party, after objection to the jurisdiction of the court, to litigate upon the merits the question involved, and then, if defeated, avail himself of such objection to defeat the decision, when the whole question could have been raised by a motion, and the trial avoided. Willoughby v. Carleton, 9 Johns. 136; Seymour v. Bradfield, 35 Barb. 49; Dunham v. Heyden, 7 Johns. 381; Tifft v. Culver, 3 Hill, 180; Fanning v. Trowbridge, 5 Hill, 428.

I agree with contestant’s counsel that several erroneous rulings were made by the commissioners during the progress of the trial. I do not, however, think that the statute contemplates that commissioners appointed in proceedings to lay out highways shall be governed by the technical rules of evidence applied in courts of record. The statute contemplates the appointment of commissioners who have a practical knowledge of the value of lands proposed to be taken, and the damages caused thereto, rather than a practical knowledge of the rules of evidence.

In Re New York, W. S. & B. R. Co., 37 Hun, at page 318, the general term of this department defined the rule as follows: “Courts will not disturb appraisal of damages for technical errors in the admission or rejection of evidence, unless it is apparent that such errors led to unjust results. The awards will be sustained unless the commissioners have clearly gone astray, and disregarded legal principles.” I cannot say upon this record that those rulings led to unjust results. It was urged upon the part of contestant that he had for some years contemplated erecting a building upon this land, and that it was valuable for building purposes. The commissioners had the right to take the property as it was, and consider the uses previously made and those that were apparent. They were not bound to take a value put upon it by contestant for a special use which he testifies that he contemplates making of the property.

The contestant’s counsel lays great stress upon the fact that evidence of the cost of fencing was excluded. Section 122 of the highway law provides: “Whenever a highway or private road shall be laid along the division line between lands of two or more persons, and wholly upon one side of the line, and the land upon both sides is cultivated or improved, the persons owning or occupying the lands adjoining such highway or road, shall be paid for building and maintaining such additional fence as they may be required to build or maintain, by reason of the laying out and opening such highway or road.” The above statute is to be taken in connection with the statute requiring adjacent owners of land to maintain division fences, but has no application to lands adjoining railroads, as the latter are required to maintain all the fences along their line.

An adjacent owner is not required to maintain any fence along the highway. The contestant would not, therefore, be required to maintain any additional fences. He might find it to his advantage to do so, and, I think, it would have been entirely proper to have received the evidence in that view, but it would not have been proper to have received it upon the theory that he would be required to maintain a fence along the highway; nor can I say that the commissioners did not fully consider that item in fixing the amount of damages. The commissioners were practical men, of high character. I am satisfied upon this evidence that the proposed highway was necessary, and the contestant awarded all the damages he was entitled to. The commissioners did substantial justice between the parties, and the amount involved is too small to warrant the expense of another trial. The decision of the commissioners should therefore be confirmed. Ordered accordingly.  