
    In the Matter of Water Commissioners, Resp’ts, v. George Clarke, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 20, 1888.)
    
    1. Boards of water commissioners—Condemnation of rands for purposes of—Laws 1875, chap. 181, §§ 5, 6, as amended by Laws 1885, chap. 311.
    By provisions of Laws 1875, chap. 181, relative to the organization and operations of boards o l water commissioners in villages of this state, it is di. rected at section 5 that the commissioners shall cause a map to be filed before entering, taking or using any land, and it is provided by section 6 that when they are unable to agree with the owner of land which they wish to use for the purposes of tneir organization, they may institute the proceedings authorized by that section for the condemnation thereof. By subdivision 5 of section 6, as amended by Laws 1885, chapter 211, all persons served with notice as therein provided may show cause and disprove any facts in the petition of the commissioners. Held, that to authorize the proceedings for the condemnation of the land, there must have been a disagreement as to the value between the commissioners and the owner, and that where the commissioners had filed their map of one lot of land, as to the value of which they were unable to agree with the owner, and subsequently filed their map of another lot belonging to the same owner, in the, absence of proof of adjustment as tp the value of the latter, proceedings-taken for its condemnation were unauthorized.
    2. Same—Proceedings for condemnation of lands—Allegations of PETITION DENIED BY ANSWER MUST BE SUPPORTED BY PROOF.
    
      Held, that the allegations of the petition being denied by the answer, were put in issue, and must be supported by proof.
    3. Same—Laws 1875, chap. 181, relative to are not controlled by CHARTER OF VILLAGE NOT DEALING WITH THE SUBJECT.
    
      Held, that the provisions of the statute were not controlled by village charters not dealing with the subject of it.
    Appeal from an order made by Justice Edwards, condemning lands upon which water works had been built and appointing commissioners of appraisal.
    
      James B. Olney, for app’lt; Jacob I. Warner, for resp’ts.
   Learned, P. J.

The petition alleged that the petitioners have been unable to acquire title to the lands, because the owners refused to sell for a reasonable price. The defendant denies this. Thus that point is in issue.

The proof is that, on October 26, 1883, the attorney for the commissioners called on Clarke to ascertain whether he would sell and at what price. Clarke took time to see his counsel. On November 6, 1883, the attorney for the commissioners again called on Clarke and offered him $2,000 for his land damages, as directed by the commissioners. Clarke declined that sum, but intimated that he would'take $5,000;' no conclusion was reached. This is all the evidence on that point.

Prior to those interviews, the commissioners had filed a map of the property needed.

Subsequently, on November 9, a, new map was filed and an application made for a commission which was granted. This was abandoned before November 28. On November 28, a new map and new papers were served; and this proceeding was discontinued December 8, 1883. On the 9th of November, 1885, the commissioners adopted and caused to be filed a new map; and thereupon the present proceeding was commenced on February, 1886.

The petition verified November 28, 1883, described two parcels, one of 194-100 acres, the other a strip of land three feet wide, 385-100 feet long.

The present petition describes two parcels, one 274-100 acres, the other 1-15 of an acre, by the Hudson river. And the second appears to be a different piece from the second piece in the former petition.

Indeed it is not disputed that the land which the commissioners now seek to condemn, is not the same land for which they negotiated in October, and November, 1883. The commissioners urge that it is not as valuable as the other, and that if Clarke would not accept $2,000 for the other they would not offer as much for this.

But we have nothing before us on the question of relative value.

The case stands thus: The commissioners negotiated for certain lands and could not agree with Clarke. They now seek to acquire lands; one parcel larger, the other parcel different. For these they never have negotiated.

The commissioners are required to cause a map to be filed before entering, taking or using any land. Laws 1875, ch. 181, section 5. And it is when they are unable to agree with the owners that they may take these proceedings; section 6. The statute was amended, 1885, chapter 211. By subdivision 5 of section 6, all persons served may show cause and disprove any facts in the petition. This expression was not in the original act. And the commissioners claim that this right to disprove means that the persons served may offer evidence against the allegations in the petition, and that unless they offer such affirmative evidence, the petition is proved. But this is not a just construction. The defendant has denied by his answer, the allegations of the petition. There is no reason why his answer should have. any less weight than the petition. The commissioners seek to take away his property. He has a right to call on them to show their authority by common law proof.

Very possibly slight proof of an inability to agree may sometimes be sufficient.

But an owner of property cannot be brought into court and subjected to the expense of retaining counsel and procuring witnesses unless a real effort to purchase has failed. In this case no effort was made as respects the property now desired.

The appellant presents another point. Section 21 of the act of 1875 provides for a meeting-of electors, and says that commissioners shall not proceed “unless the majority of voters and tax payers whose names appear upon the last assessment roll of the village voting at the meeting shall vote in favor of such taxes.”

First. The appellant insists that this law is controlled by the village charter, 1860, chapter 68, sections 46, 32. W@ think not. This is a general statute on a special subject, and is not controlled by the provisions of the village charter, which did not deal with the subject of this law.

Second. The appellant insists that the section requires a majority of all the voters and of all the tax payers. We think that the words “voting at said meeting” show that only a majority of those present were needed.

Again the appellant insists that there was no evidence given that the lands in question were “required for the purpose” of the waterworks. This was a defect in the-proof, as the matter was put in issue by the answer. Some-evidence should have been given (and probably but little would have been necessary) to show that the land was required for the water works.

The order should be reversed and the proceedings dismissed with costs, but without prejudice to any further application.

Landón and Ingalls, JJ., concur.  