
    The People of the State of New York ex rel. Isaac L. Smith and Walter H. Millard, Respondents, v. James E. Allen, Commissioner of Highways of the Town of West Turin, in the County of Lewis, New York, Appellant.
    
      Highway Law — laying out a highway—failure to serve notice upon owners and occupants of the land— the objection may be made by a highway commissioner in opposition to a proceeding for a mandamus commanding him, to open the highway.
    
    The failure to serve notice upon two owners and occupants of lands through which a proposed highway is to be laid out, as required by section 85 of the Highway Law (Laws of 1890, chap. 588), is fatal to the proceedings, so far as the property of such owners and occupants is concerned.
    The objection that the proceedings are invalid as to the owners and occupants upon whom notice was not served, may be interposed by the commissioner of highways, on the hearing of an application for a writ of peremptory mandamus, commanding him to open and work such highway.
    Appeal by the defendant, James E. Allen, commissioner of' highways of the town of West Turin, in the county of Lewis, New York, from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of Lewis on the 14th day of June, 1898, granting the relator’s application for a peremptory writ of mandamus commanding the said commissioner to forthwith proceed to open and work and put in condition, suitable and proper for public travel thereon, all that part of the proposed highway situate in the said town of West Turin, particularly described in said order, with notice of an intentian to bring up for review upon such appeal an order of the County ■Court of Lewis county, bearing date the 25th day of June, 1895, and entered in said cleric’s office, confirming the report of the commissioners appointed in the proceeding.
    On the 3d day of October, 1894, Isaac L. Smith and Walter H. Millard presented their petition to the county judge of Lewis county asking for the appointment of three commissioners to lay out*a highway in the towns of Turin and West Turin upon the route therein particularly described. On tho,t day the county judge made an order appointing three commissioners to examine as to the necessity for laying out said highway and to assess the damages caused thereby. On the twenty-fifth of October the commissioners met to view the proposed highway and to take testimony in relation to the necessity of the said proposed highway and the damages caused thereby. On the 25th of May, 1895, they made a decision wherein they decided that the proposed highway was necessary and ordered the same to be laid, and assessed the damages of the persons named in the application, which order was filed May 27, 1895, in the Lewis county clerk’s office. On the twenty-fifth of June proceedings were taken before the county judge upon a motion for confirmation, and the county judge made an order confirming the same, which was entered December 4, 1895. In December 1895, James E. Allen, as commissioner, and Charles E. Taylor, as supervisor, of the town of West Turin made a petition to obtain a writ of certiorari to review the proceedings, and in the petition it was stated, viz.: “ That Jennie L. Whittlesey was the owner in fee of the equal undivided one-half part of about eiglity-two acres of land in the town of West Turin through which said proposed highway ran, and through which it was laid by the commissioners by the order above referred to. That by reason of that fact said commissioners had no power or jurisdiction to lay said highway without notice to said Jennie L. Whittlesey. That no notice of the proceedings nor any part thereof was given her. That her deed of said premises was duly recorded in the Lewis county clerk’s office January 14, 1890, in book No. 80 of Deeds at page 248. That the objection to said proceedings, on account of want of notice to her, was duly and timely taken upon said proceedings and overruled by said commissioners. That the executors and trustee of the last will of Gertrude M. Whittlesey was the owner in fee of the equal undivided one-half part of said eighty-two acres of land, and her title was evidenced by the deed referred to in the preceding paragraph of this petition, and the same objection was taken to said proceedings on account of her title, and the want of notice to said-executor and trustee, as in the case of Jennie L. Whittlesey above mentioned, which objection was overruled by said commissioners.”
    A motion was made at Special Term to dismiss the certiorari,.and was denied on the 28th of December, 1895. An appeal was taken from that order and was brought to argument and decided by this court in July, 1896, reversing the order and quashing the writ of certiorari. The opinion delivered in behalf of the court is .found reported in 8 Appellate Division, 395. On the twenty-eighth of May, the relators gave notice of a motion for the Jefferson Special Term asking a peremptory writ of mandamus. In opposition to the motion the appellant appeared and read an affidavit in which he claimed that the proceedings were void for the following reasons: “ No notice of any of the proceedings, or hearing before the commissioners was given to two of the landowners through whose lands the proposed highway ran, to wit, E. B. Wool worth, who held the one-half interest and title in about eighty-two acres of land, as executor and trustee under the last will and testament of Gertrude Whittlesey, deceased, and Jennie Whittlesey 6f Lyons Falls, N. Y., the wife of Walter Whittlesey, who owned the undivided one-lialf of the same lands, and who for many years last past resided upon and occupied said premises. The title of said parties was recorded in the clerk’s office of Lewis county in book No. 80 of Deeds at page 248, and the possession and occupation of said premises by said Jennie Whittlesey was open and notorious, and had been for a long time previous to the date of said proceedings.” It was also stated in the affidavit" that Woolworth and Jennie Whittlesey had refused to receive the compensation allowed by the commissioners for the right of way across said premises, to wit, $150, which allowance was made to Walter Whittlesey and not to the owners or either of them. The affiant also stated that said parties “ have served notice upon deponent that if he enters upon said premises and undertakes to open said highway, he will be sued and enjoined.” He also produced and set out in his affidavit a letter which he had received from an attorney advising him that no lawful highway had been laid over the Whittlesey farm, and that any one who attempts to open such supposed road will be enjoined at once.
    
      Walter Ballou, for the appellant.
    
      H. H. Ryel, for the respondents.
   Hardin, P. J.:

Section 82 of the Highway Law (Laws of 1890, chap. 568, 1 It. S. [9th ed.] 695) provides, viz.: Any person or corporation assessable for highway labor may make written application to the commissioners of highways of the town in which he or it shall reside, or is assessable, to alter or discontinue a highway, or to lay out a new highway.”

Sections 83 and 84 provide under what circumstances application may be made to the county judge for the appointment of commissioners.

In section 85 it is provided that the applicant shall cause at least eight days’ written or printed notice to be posted in not less than three public places in the town, specifying as near as may be the highway to be laid out, altered or discontinued, the tracts or parcels, of land through which it runs, and the time and place of the meeting of the commissioners appointed by the County Court to examine the highway as mentioned in the last section. The section further provides, viz.: “ Such notice shall, also, in like túne, le personally served on the owner and occupant of the land, if they reside in the town, or by leaving the same at their residence with a person of mature age; if they do not reside in the same town, or service cannot be made, a copy of such notice shall be mailed to such owner and occupant if their post office address is known to the applicant or ascertainable by him upon reasonable inquiry.”

No notice was served in any manner upon Jennie Whittlesey or E. B. Woolworth. The omission is fatal to the proceedings so far as they affect the property of those respective owners and occupants. Doubtless the parties conducting the proceedings supposed the property was owned and occupied by Walter Whittlesey. Indeed, the commissioners who made the award of $150 declared it to be to Walter Whittlesey for damages sustained in crossing the eighty-two acres of land. The owners and occupants of the land were clearly entitled to the notice mentioned in the section just quoted, and because of the absence of that notice their land is not bound by the proceedings had, however effectual they may be as to the other parties who have received proper notice.

It is contended in behalf of the respondents that certain objections were taken, or might have been taken, in the proceedings in the County Court, and that the commissioner of highways ought not to be heard in opposition to the application for a writ for peremptory mandamus to raise the objections which he seeks in his affidavit before the Special Term. We think the contention is not sound.

In People v. Commissioners of Highways of Seward (27 Barb. 94) it was held that a jurisdictional fact was open to contradiction. It was further held: “ The proceeding by mandamus, to compel commissioners of highways to open a road, should not be resorted to where its necessary effect would be to subject the commissioners to an action for trespass. If the facts show a wa/nt of jurisdiction, so as to make the proceedings entirely void, this is a sufficient ground for not awarding a peremptory mandamus. Commissioners of highways are not estopped by the fact that they have assumed an unlaw- ■ fui authority and acted under it, from asserting their want of jurisdiction and refusing to proceed further, whenever they discover their error.”

Under the Eevised Statutes (1 R S. 519, § 91; Id. 514, § 62) a notice in writing of three days to the occupant of the land through which the road was to run was necessary before the judges could proceed to lay out the highway. In the absence of such a notice it was held in People ex rel. Edick v. Osborn & Others, Judges of Herkimer Common Pleas (20 Wend. 186), that the proceedings were unauthorized.

In People ex rel. Dana v. Robertson (17 How. Pr. 74), in referring to the same provision of' the Revised Statutes requiring the three days’ notice, it was said: This notice is indispensable to give the referees jurisdiction to proceed.” In that case a motion for a peremptory writ of mandamus was denied.

It is alleged that Walter Whittlesey has consented to the proceedings and that he had notice thereof and that he took part in the inquiry as to damages that should be awarded for crossing the eighty-two acres of land, and that the commissioners acted upon the assumption that he was the owner and occupant. Doubtless, so far as he was concerned, the proceedings might be held efficient, but they are wholly inefficient as to Jennie Whittlesey and E. B. "Woolworth ; and, therefore, the commissioner of highways ought not to be required to take steps to open the highway across their lands and thus subject himself to an action for trespass.

We think the order allowing a peremptory writ of mandamus should be reversed, with costs.

All concurred.

Order reversed, with costs.  