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 *252acres 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 *253eighty-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.