People ex rel. Green v. Common Council of Syracuse , 20 How. Pr. 489 ( 1861 )

Morgan, Justice.

From the facts stated in the writ of alternative mandamus, and admitted by the answer, together with the evidence taken on the trial, it appears that the common council of the city of Syracuse, in pursuance of the powers vested in them by the charter, caused to be surveyed the proposed street in question, and caused permanent monuments to be set, showing the lines thereof, and a map to be made of the same, which was filed in the city clerk’s office, and a copy thereof was also filed in the county clerk’s office, as provided for in title 8, § 1. The common council then declared by resolution their intention to take and appropriate the property included within the lines of the proposed street, and published and served the notices as required by the city charter. Application was made to the county court for the appointment of three commissioners, in pursuance of notice to the property owners, and that court duly appointed such commissioners “ to ascertain and report the just compensation to be paid to the person or persons owning or having an interest in the said property.”

The.commissioners thus appointed proceeded under §2, title 8 of the city charter, to ascertain and award to the respective owners of property to be taken, and to all persons and corporations interested therein, such damages therefor, (deducting the benefits to the adjoining lands) as in their opinion would be a just compensation to them respectively;- and this report was duly returned to the common council. No appeal was taken to the county court by any person interested in the lands, or by the common council, within the'time prescribed by §3 of article 8th of the city charter.

By §4 of the same article it is provided that “in case there shall be no appeal from the report of the commissioners, the common council shall direct the commissioners making the award to assess the amount awarded for damages, with commissioners’ fees, specifying the aggregate amount of the same. The commissioners shall proceed to assess such amount upon the property benefited by such improvement, in a just and equitable manner, as near as may be in proportion to the benefits received. Such assessment shall be made in the same manner as the assessment-for building sewers, except that such commissioners shall direct such part of said expenses to be assessed upon the city, and such part localty, as they shall deem just.”

And by § 6 : “ Immediately after the final determination of all proceedings in which any award shall be made, the common council shall cause to be paid or tendered to the respective owners the amount awarded to each respect-.