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tion, and assessing the damages therefor (or as the case may be), shall be the truth, the whole truth and nothing but the truth, so help you God.

Such commissioners must keep minutes of their proceedings and reduce to writing all oral evidence given before them on the subject of the assessment of damages. The statute does not contemplate that commissioners appointed in such proceedings shall be governed by technical rules of evidence applied in courts of record. Matter of Pugh, 22 Misc. 43; 49 N. Y. Supp. 398. They must make duplicate certificates of their decision, and file one in the town clerk's office of the town. The other certificate, together with the minutes and evidence taken by them, must be filed in the county clerk's office of the county in which the highway or proposed highway is located. (For form of certificate, see Form No. 68.) Each commissioner is entitled to four dollars and his necessary expenses for each day he is necessarily employed as such commissioner. (H. L., §§ 84, 92.)

§ 85. Notice of meeting.-The applicant shall cause, at least eight days previous, written or printed notice to be posted up in not less than three public places in the town specifying, as Lear as may be, the highway proposed 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. Such notice shall also, in like time, be 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 can not 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.

Necessity of notice.-Notice is necessary to give the commissioners jurisdiction to act; and an order laying out a road without the notice is void for want of jurisdiction. (People ex rel. Odle v. Kniskern, 54 N. Y. 53; People ex rel Wells v. Brown,

47 Hun, 459.) The failure to serve a notice upon the owners of lands through which a proposed highway is to be laid out is fatal to the proceedings, so far as the property of such owners and occupants is concerned. People ex rel. Smith v. Allen, 37 App. Div. 248; 55 N. Y. Supp. 1057.

Such notice must specify, as near as possible, the highway proposed to be laid out, altered or discontinued, and the tracts or parcels of land through which it runs, and the time and place of the meeting of the commissioners appointed to examine the highway. The notice need not specify courses and distances. It should give the termini and general route of the proposed road. The notice is not vitiated because erroneously stating that some of the lands were unimproved. Snyder v. Trumpdour, 38 N. Y. 355.

Want of notice is an irregularity which may be made the ground of a writ of certiorari to review the action of commissioners in laying out a highway. People ex rel. Scrafford v. Stedman, 57 Hun. 280.

Form of notice.-The notice may be in the following form:

FORM NO. 66.

Notice of Meeting of Commissioners.

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Notice is hereby given that the undersigned has made application to the commissioners of highways of the town of in the county of .........................................., for the laying out (altering or discontinuing) of a highway in said town, commencing (here insert description as in application) which proposed highway (or alteration) will pass through the lands of (describe who), and by an order of the county court dated the ...... day of ...... 19...., S. S., G. G. and J. J. were appointed commissioners to certify as to the necessity of said proposed highway (alteration or discontinuance), and to assess the damages by reason of the laying out and opening (alteration or discontinuance) of such highway; and that said commissioners will all meet at in said town, on the ......., 19...., at .... o'clock in the ........noon, to examine the proposed highway (or the highway) and hear the commissioners of highways and all others interested therein, and to assess the damages if such highway be determined to be necessary (or is altered or discontinued).

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day of

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Dated this ...... day of

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19....

L. M.

Form of affidavit of service.-The following affidavit of service should be made:

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L. M., being duly sworn, says that he caused notices in writing, of which the within is a copy, to be posted up at

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at

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and ..... three public places in the town of said county, on the ...... day of ... 19...., and that he served a like notice on (name all the owners and occupants of the lands through which the highway is proposed to be laid out, (altered or discontinued) on the ...... day of 19...., by (state how served), and that said notices were posted at the respective places, and served on the respective persons herein named, at least eight days before the time specified therein for the meeting of said commissioners.

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§ 86. Decision of commissioners in favor of application.—If a majority of the commissioners appointed by the county court shall determine that the highway or alteration applied for is necessary, or that the highway proposed to be discontinued is useless, they shall assess all damages which may be required to be assessed by reason thereof and make duplicate certificates to that effect. If the petition is for the laying out of a highway, the commissioners shall also include in their certificates what the probable cost would be of laying out and completing the proposed highway, in their opinion, based upon the evidence given before them on the hearings. (Amended by L. 1901, chap. 441, in effect April 20, 1901.)

Amendment of section.-The amendment of 1901 added the last sentence requiring a statement of the probable cost to be inserted in the certificate.

Damages. The damages must be presumed to be coextensive with the use to which the highway is to be put. Griffin v. Martin, 7 Barb. 297. They are in the judgment of the commissioners, and their award will not be set aside as against the weight of evidence. Matter of Pugh, 22 Misc. 43; matter of Whitestown, 24 Misc. 150. The measure of damages is the present market value of the property. Matter of William street, 19 Wend, 678. In assessing the damages the commissioners should determine the effect of the proposed change upon the market value of the property, the market value of the premises before the change and what their market value will be after the change. The question is not what estimate the owner places upon the lands, but what their real worth is in the judgment of honest, competent and disinterested men. (In the

matter of Furman street, 17 Wend., 649.) In estimating the damages to be assessed, the value of the land taken is not restricted to its agricultural or productive qualities. Every purpose for which the property might be used should be considered and the compensation made should equal the damage sustained. Remote, contingent or speculative damages should not be considered by the commissioners, but they are not confined in making their appraisal to the actual value of the land to be taken, but may consider how the laying out and opening of the road will affect the remainder of the owner's land. If the remainder is left in an inconvenient and unmarketable shape, that fact may be considered in determining the compensation. (Albany Northern R. R. Co. v. Lansing, 16 Barb., 68.) If the claims of title to lands damaged are conflicting, damages may be awarded to "owners unknown." Matter of Eleventh Ave. 49 How. Pr. 208. Where an award was made to the husband of an owner, the proceeding was not invalidated. Mitchell v. White Plains, 16 N. Y. Supp. 828. The proper method is of course to insert in the cortificate the names of the property owners and the amount of damages awarded to each; but if the property owners are merely described without being named, it has been held sufficient. Granger v. Syracuse, 38 How. Pr. 308. An offer to release which was not accepted does not justify the commissioners in awarding merely nominal damages. Matter of Terrace, 15 N. Y. Supp. 775. Where the property is leased, separate awards should be made to both lessor and lessee, but if lessor is awarded the entire sum, the lessee may recover of the lessor his proportionate share. Coutant v. Catlin, 2 Sand. Ch. 485. The value of a leasehold interest and the damages to be awarded must depend upon the location and business facilities of the property and the state of trade in the vicinity. Matter of Commissioners, 54 Hun, 313.

Determination of commissioners.-The determination of the commissioners must be confined to the highways applied for, but they are not limited to the precise route specified in the application. They may make such variations as they deem proper. The general course of the road, however, must be preserved. In the assessment of damages the benefits derived from the exclusive use of lands reverted by reason of the discontinuance of another highway through other portions of the same person's land, must be deducted. § 87, post.

To authorize the discontinuance of a highway, the weight of evidence must show and the commissioners must find that it is useless; but a finding that it is not necessary, or that a proposed

new road would be better is sufficient. Matter of Coe, 19 Misc. 549; 44 N. Y. Supp. 910.

The certificate which the commissioners are required to make will sufficiently conform to the statute, if, in the description of the highway, a single line is given with the courses and distances. Inasmuch as the highway is required to be three rods in width, an order laying out a road is sufficiently explicit if it specifies the central line. The certificate of the commissioners will be sufficient if it state where the highway commences and where it ends, and its route by courses and distances. It is advisable, however, that all the bounds and width, as well as the courses, be particularly stated, to avoid uncertainty and controversy. The certificate must be made in duplicate, one of which must be filed in the town clerk's office and the other with the minutes and evidence taken by the commissioners in the county clerk's office. § 84, ante.

Form of Certificate.-The certificate may be in the following form:

FORM NO. 68.

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day of

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Certificate of Decision of Commissioners in Favor of Application. The undersigned, by an order of the county court of .... county, dated the 19..... on the application of L. M., having been appointed commissioners to certify as to the necessity of laying out and opening (altering or discontinuing) a highway in the town of .... in said county, beginning (describe highway as ir the application) which proposed highway (or highway) crosses the lends of (name the persons) and to assess the damages to be caused thereby; now, therefore, we, the said commissioners, having given due notice of the time and place at which we would meet, and all having met at in said town on the ...... day of ......

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19...., pursuant to such notice, and having taken the constitutional oath of office, and on proof of the service and posting of the notices by the applicant, pursuant to section 85 of the highway law, having viewed the proposed highway (or alteration or highway proposed to be discontinued) and the lands through which it is proposed to be laid out and opened (altered or discontinued) and having heard all the allegations of the commissioners of highways and the parties interested therein, and the evidence of all the witnesses produced, do thereupon certify, that in our opinion it is necessary and proper that the highway be laid out and opened (altered or discontinued) pursuant to the said application of L. M., dated the day of 19....; and we have assessed the damages required to be assessed by reason of laying out and opening (altering or discontinuing) such highway as follows: The damages of N. N. at $.. ..; the damages of W. W. at $.......

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§ 87. Damages in certain cases, how estimated. The owner of lands within the bounds of a highway discontinued may in

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