Opinion
November Term, 1898.
John P. Kellas, for the appellant.
Wilmer H. Dunn, for the respondent Village of Champlain.
Weed, Smith Conway, for the respondents Roberts, Graves and Brassard, as water commissioners, etc.
The necessary steps to organize a village system of water works were taken under chapter 181 of the Laws of 1875, and, although such act has since been repealed by chapter 414 of the Laws of 1897 (The Village Law), still everything that has been done by the village prior to July 1, 1897, when chapter 414 of the Laws of 1897 took effect, is preserved to it by section 31 of the Statutory Construction Act (Chap. 677, Laws of 1892). After organizing the water department, and determining upon the system, comes the acquisition of lands for the uses of the department; they may be acquired by purchases or condemnation.
The condemnation proceedings are separate and distinct proceedings from those organizing the water department and determining what system it will adopt, and whether it will purchase an existing private system or construct one of its own; and such condemnation proceedings are regulated by the laws in existence when they are instituted. While the right to condemn lands and water rights which they had secured by their organization under the Laws of 1875 was secured and preserved by the Statutory Construction Act, still that act did not give them any right in the method of procedure by which they should be condemned and taken. ( Lazarus v. M.E.R. Co., 145 N.Y. 581.)
Condemnation proceedings, I think, may be said to be instituted, not when application is first made to the court, but when the maps and plans showing the water rights and lands intended to be acquired are filed in the proper office or offices.
In the case before us, the proceedings to acquire the plaintiff's water rights were not instituted until after July 1, 1897, and at that time chapter 414 of the Laws of 1897 was in force. Section 223 of that act provides for the filing of a map and plans in the office of the village clerk, and a certified copy thereof in the county clerk's office.
It does not appear from the petition referred to that any plans were prepared or filed, and the map was filed in the county clerk's office July 2, 1897, and not in the village clerk's office.
In the cases of The Village of Champlain v. Matilda McCrea and The First National Bank of Champlain ( 33 App. Div. 259) and The Village of Champlain v. Matilda McCrea and Emmet M. Fitch (Id. 636), we held these defects to be fatal, and set aside the orders and interlocutory judgments entered in such proceedings upon the ground that the court did not acquire jurisdiction.
We refer to the memorandum then handed down as a sufficient statement for our reasons for so holding.
The judgments plead in bar, herein referred to, were open to attack for lack of jurisdiction in the court rendering them. The court never having acquired jurisdiction, the judgments are void and constitute no bar to plaintiff's action, and for that reason the judgment should be reversed and a new trial granted, with costs to abide the event.
All concurred, except LANDON, J., dissenting.
Judgment reversed and a new trial granted, costs to abide the event.