The order of the board of trustees, continuing Saxton-street from Genesee to Buffalo-street in the village of Lockport, bears date in May, 1839, and does not mention the names of the owners of the land, appropriated for the purposes of the street; nor does it appear, by the records and proceedings of said trustees, that the plaintiffs were known to be owners or interested in the lands to be taken, until after the issuing of the precept to the jury to assess the damages. After the jury had assembled to assess damages, Asa W. Douglass, in behalf of himself and his co-plaintiffs, appeared before them as persons interested in lot No. 1 on Walnutstreet, and lot No. 7 on Buffalo-street, and took objections to some of the proceedings, which were overruled; and the jury assessed damages to six several owners of lands by name, and to the owner unknown of one other piece; and the plaintiffs had awarded to them, by name, by the verdict of the jury, $1200 for their damages.
If the true construction of the 43d and 46th sections of the act incorporating the village of Lockport, requires the names of owners of lands about to be appropriated for streets to be inserted in the process for summoning a jury to assess damages, where the owners' names are known, it should be made to appear that such names were known to those who issued the process, at the time of the issuing thereof. Subsequent information of the owners' names would not render the process void or irregular. And in the absence of evidence that the plaintiffs' names, and interest in the land, were known to the trustees at the time the process issued, the presumption of law is that said *Page 199 trustees issued the process in due form, according to the facts within their knowledge at the time. I therefore am of opinion that the court erred in assuming as a fact, that at the time ofissuing the process the trustees knew the plaintiffs to be theowners of the land to be appropriated.
But, as the above view of the case would produce a new trial merely, without further results, I propose to examine, briefly, whether the statute requires the names of known owners to be inserted in the jury process, and what are the consequences of an omission so to do. The 43d section of the act clearly contemplates a case where the owners are known to the trustees; because it directs notice of the intention to appropriate the land to be given to the person interested therein, and enables the trustees to treat with him therefor, and in case of inability to agree, then a process for summoning a jury to assess damages is to be issued. The 43d section having provided for the case of known owners, the 46th section proceeds to make provision for obtaining the lands of owners unknown, and dispensing with the necessity of giving notice otherwise than by newspaper publication. The 43d section of the act does not, in express terms, direct the names of the known owners to be inserted in the process, but the framers of the law, doubtless, took it for granted that such would be the case, in accordance with the known practice in all judicial proceedings. The wording of the 46th section shows very clearly that the legislature supposed that precepts issued in cases provided for in the 43d section would contain the names of the owners whose damages were to be assessed, and dispensed with the necessity of inserting names where the owners were unknown. Hence the inference is very strong, that the precept, when issued under the 43d section, should contain the names of the owners whose damages are to be assessed.
But it does not follow that the proceedings of the trustees in assessing the damages are void, because the process did not contain the owners' names. That requirement was not a jurisdictional one, but was made for the benefit of the plaintiffs, so that they could have notice of the proceedings, and opportunity to be *Page 200 heard before the jury on the question of the extent of their interests and the amount of damages sustained. The provisions of the statute having been made for their benefit, in this respect, it was competent for them to waive it, as they have done, by appearing before the jury and omitting to make any objection to the form of the process, and by subsequently insisting upon having the benefits of the proceedings. (7 Wend. 264.) The defendants, who committed the error, in issuing the irregular process complained of, can not be allowed to avail themselves of that error. The assessment in favor of the plaintiffs, and the judgment rendered thereon by the president of the village, is binding upon the defendants, as to the regularity of the proceedings on all points not jurisdictional.
The defendants' counsel further urges in defence, that as the plaintiffs were known owners, but not named in the precept within the words of the last clause of the 46th section, they can not maintain an action for the assessment by virtue of that section. This objection is highly technical and ought not to prevail. It was clearly the intention of the legislature to provide a remedy by action for the recovery of the assessed damages, as well in favor of persons known as unknown; and the words "named in the precept," after the word "known," are mere words of description and tautologous. It could not have been the intent of the legislature to limit the right of action to persons named in the process, because the legislature evidently took it for granted that the names of known owners would be inserted in the precept. No reason is perceived why any class of persons, sustaining damage by the laying out of streets, should be precluded of their action at law, while a remedy is extended to others. The only distinction created by the act between known and unknown owners, is that the latter must demand his damages before action, and the former not.
It is further objected by the defendants counsel, that if the act authorized the taking of the plaintiffs' land for the purposes of a street, it is illegal and void because it does not provide a compensation for the land taken. (Bloodgood v.Mokawk R.R. Co., 18 Wend. 10; 4 Hill, 140.) This objection would be *Page 201 valid, if the plaintiffs could maintain no action for their damages, on the 46th section. But as this action can be sustained on that section, the objection can not be sustained.
I am of opinion that the judgment of the supreme court should be reversed, and a new trial awarded.
Ordered accordingly. *Page 202
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