
    In the Matter of the Application and Petition of J. Edward Simmons and Others, Constituting the Board of Water Supply of the City of New York, to Acquire Real Estate, etc., for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of the City of New York. Hill View Reservoir, Section No. 1, Plots A and B. J. Edward Simmons and Others, Constituting the Board of Water Supply of the City of New York, Appellants; Charles H. Tweed and Arabella D. Huntington, as Executors, etc., of Collis P. Huntington, Deceased, Respondents; George N. Rigby, Commissioner.
    Second Department,
    January 22, 1915.
    Municipal corporation—water supply, city of New York — eligibility — commission of appraisal — change of residence.
    A commissioner of appraisal, appointed under chapter 724 of the Laws of 1905, providing for a commission or hoard of water supply of the city of New York, becomes ineligible and should be removed from his office where he ceases to be a resident of this State and becomes a resident and voter in another State, and this even though he still continues to be a freeholder in a county where real estate to be appraised is situated. Eligibility of commissioners of appraisal under ancient and modern statutes discussed, per Putnam, J.
    Appeal by the petitioners, J. Edward Simmons and others, constituting the board of water supply of the city of New York, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 14th day of August, 1914, as resettled and amended by an order entered in said clerk’s office on the 25th day of November, 1914, denying a motion of the city of New York that George N. Rigby, one of the commissioners of appraisal herein, be removed on the ground that he had ceased to be a resident of the State of New York.
    
      H. T. Dykman [Charles Wesley and Frank L. Polk with him on the brief], for the appellants.
    
      Tompkins McIlvaine [Albert Southard Wright with him on the brief], for the respondents, executors of Collis P. Huntington, deceased.
    
      Chase Mellen, for George N. Rigby, commissioner.
   Putnam, J.:

Laws of 1905, chapter 724, being the act providing for the commission or board of water supply of the city of New York, directed (§ 1) that the mayor “shall appoint three persons who shall be commissioners for the purposes hereinafter specified. The persons so to be appointed shall be public officers and shall constitute a board or commission to be called the board of water supply of the city of New York.” Section 7 provides for application to the Special Term for the appointment of commissioners of appraisal.

Upon proof of proper publication the court is by section 9 to make an order for the appointment of three disinterested and competent freeholders, “at least one of whom shall reside in the county of New York and at least one of whom shall reside in the county or one of the counties in which the said real estate shall be situated, as commissioners of appraisal to ascertain and appraise the compensation to be made to the owners and all persons interested in the real estate laid down on said maps as proposed to be taken or affected for the purposes indicated in this act.”

Section 12 regulates the filling of vacancies by death or resignation, by an appointment at Special Term, upon ten days’ notice? by advertisement, of one or more commissioners to fill the vacancies so caused.

The board caused maps to be filed and other introductory steps for taking the Hill View reservoir or aqueduct, including parcels Nos. 1 and 3 in the county of Westchester. Whereupon, on May 4, 1907, the Special Term of Westchester county appointed Mr. Martin, of New York county, with Mr. Apgar and Mr. Rigby, both of Westchester county, as commissioners. These commissioners of appraisal duly organized and made many official reports. When appointed, Mr. Rigby (a member of the bar) was a competent and disinterested freeholder of Westchester county, where he also resided. He continued to be such resident until, in May, 1913, he became, and has since been, a resident and voter at Ormond, Fla. He, however, is still a freeholder in Westchester county. This appeal by the petitioners raises the question: Did Mr. Rigby’s change of residence disqualify him from thereafter acting as a commissioner of appraisal ?

A special delegated authority to take away a man’s property and estate against his will must be strictly pursued (Rex v. Croke, Cowp. 26), not only in following the steps as laid down in the special act, but in compliance with the general principles of such proceedings as to the essential rights of the defending landowner. (Matter of City of Rochester, 208 N. Y. 188.) Commissioners to take and value lands by the power of eminent domain are ordinarily to hear evidence, but may also be guided by their own view of the lands and their surroundings. (15 Cyc. 889.) And hi certain instances a determination so made without hearing witnesses will not be disturbed. (Matter of Newland Ave., 60 Hun, 581; 15 N. Y. Supp. 63.) A condemnation based entirely or in part upon a view of the premises, in which the commissioners’ personal knowledge counts for so much, necessarily requires that they be familiar with the property and its surroundings. Like the functions of jurors in the Norman period, who could act per proprium visum et auditum, without testimony of witnesses, the requisite local knowledge for such duties necessitated the further rule that such persons must come from the neighborhood. (Thayer Trial by Jury, in Prel. Treat. Ev. 91.) Such a jury was “a body of neighbors” summoned by some public officer to give, upon oath, a true answer to some question. (1 Pollock & M. Hist. Eng. Law, 138.)

In the Colonial times the freeholders to value lands taken for highways had to be called from the neighborhood.

The act “ for the better Clearing & further Laying Publick High Roads in the County of Ulster,” passed December 17, 1743, chapter 753 of the Colonial Laws, directs that the appraisal “ Shall be Determined and the True Value Set & appraised by two Justices of the Peace, and by the Oaths of Twelve of the Principal Freeholders of the Neighbourhood not having any Interest.” (3 Colonial Laws [Comp. Stat. Rev. Comm.], 327, 328.) Also by an act “for the better Laying out Regulating, Clearing and Keeping in repair the public Roads and Highways in the Counties of Albany and Tryon,” passed March 24, 1772, chapter 1551 of the Colonial Laws, the valuations were to be by two justices of the peace, and “by the Oath of Twelve of the principal Freeholders of the Neighborhood” not having any interest in the lands about which such dispute may arise. (5 Colonial Laws [Comp. Stat. Rev. Comm.], 369, 371.)

In the general provisions for taking lands for highways the Revised Statutes directed the final assessment by six jurors drawn from any other town of the county. (R. S. pt. 1, chap. 16, tit. 1 [1R. S. 515], §§ 65, 66.) But later this area, from which such jurors on appeal could be drawn to reassess, was restricted to the town adjoining that in which the damages should be assessed. The persons were to be drawn by the town clerk of the adjoining town, and then summoned before a justice of the peace in the town in which the damages are to be assessed; the first six, free from legal exception, were to be the appraisers or jury to reassess the damages. (Laws of 1847, chap. 455, §§ 3-6.)

Special railroad charters with right to take land early provided for commissioners of appraisal to be appointed by the vice-chancellor of the circuit. They were to be freeholders and residents of the county. (See Laws of 1832, chap. 233, § 9, act for the construction of a railroad in Cayuga county by the Auburn and Canal Railroad Company.) When they were to be. drawn from the grand jurors, by a vice-chancellor and the county clerk, it was provided that in case of a vacancy “ by death, removal out of the county, or any permanent disability, such vacancy may be supplied on the petition of the said corporation, by the said vice-chancellor, who shall have authority to designate a competent and disinterested freeholder of the county to act as appraiser.” (Laws of 1845, chap. 350, § 20, act for the construction by the Chemung Railroad Company of a railroad from Seneca lake to the New York and Erie railroad in the county of Chemung.)

If we refer to the provisions for the water supply of the city of New York, like stress will he found to be laid upon residence. In the act to facilitate what was subsequently the reservoir at Central Park (Laws of 1853, chap. 501, § 4), the appraisers to be appointed were to be “ three competent and disinterested persons, residents of the city and county of New-York. ”

Regarding watershed lands, and those to be taken for the aqueduct, the commissioners were to reside in the county, or some adjoining county, where the property to be appraised is situated. (Laws of 1877, chap. 445, § 5.) Later it was “one of whom shall reside in the county of New York, and the other two of whom shall reside in the county or counties in which the said real estate shall be situated.” (Laws of 1883, chap..490, § 8.) Then the two not from New York county “shall each reside in one of the counties in which the said real estate shall be situate, or in an adjoining county.” (Laws of 1893, chap. 189, § 9.) Under this provision land might be taken on an appraisal by persons all residing outside the county of its situs. This was remedied in the city charter, which, as to the two outside of New York county, provided that one shall reside in the county in which said real estate acquired or affected is situated, and one of whom shall reside in such county, or in an adjoining county. (Laws of 1897, chap. 378, § 492; Laws of 1901, chap. 466, § 492.) Finally the Condemnation Law has defined the general field from which such commissioners may be appointed. Except in the first and second judicial districts, they must b.e “ residents of the judicial district embracing the county where the real property, or some part of it, is situated, or of some county adjoining such judicial district.” In the first and second judicial districts the commissioners must reside in the county of the situs or in some adjoining county. A significant clause, however, allows the parties to waive, in writing, the provisions of this section as to residence of the commissioners, in which case they may be residents of any county in the State. (Code Civ. Proc. § 3369.) Even by consent, therefore, commissioners residing without the State are unauthorized.

The element of neighboring residence to the land has thus been made indispensable. Although the present Water Supply Law is not definite as to the third commissioner, the court is still to look at these essentials of a fair appraisal. Such local residence, sharing in the knowledge of the community among whom the appraiser is himself to be held responsible, has been found necessary for a right discharge of these duties. An absentee freeholder is not so qualified. Although this statute did not clearly state the requisite residence of one of the three commissioners, the Special Term, acting in keeping with the continuity of precedent, could not, in the first instance, have lawfully appointed as commissioner a non-resident, whose domicile and allegiance were in Florida, even if he owned a freehold in the county of the situs. In some degree such a non-resident would be beyond the power and jurisdiction of the appointing court. And if such a non-resident could not be appointed, the removal and taking up a residence in Florida amounted to a giving up of the appointment and, from the date of such removal, vacated the office. To hold otherwise would leave the qualifications of this commission too insecure to form a competent body to take away a man’s land against his will, even if at present we hear no objection from the defending landowners. While the fairness, competency and general fitness of this commissioner are conceded, we deem this qualification of residence to be jurisdictional.

The order must, therefore, be reversed, but without costs, and an order directed to be entered declaring the place and appointment of Mr. George N. Rigby vacated, and that the remaining commissioners take steps, under section 12 of the Water Supply Act, for the appointment by the Special Term of a commissioner to fill the vacancy so occasioned.

Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.

Order reversed, without costs, and an order directed to be entered declaring the place and appointment of Mr. George FT. Rigby vacated, and that the remaining commissioners take steps under section 12 of the Water Supply Act for appointment by the Special Term of a commissioner to fill the vacancy so occasioned.  