débris of a building taken, the value of the débris must be deducted from the damages to the building as such.1 In the adjustment, the owner may be allowed the expense of removing any improvements; and in such case the owner is entitled to the materials of buildings, or their proceeds.2 No suit can be instituted against the owner of the land for removing trees from the land, until the condemnation proceedings are perfected.3

§ 224. Continuing buildings already commenced. The mere fact that proceedings are pending to open or widen a street does not prevent the owner from using his property or obtaining benefit from it. The proceedings may be discontinued, and the owner thus lose the use of his land. The damages are to be based on the value of premises at the time commissioners may make their view. The public are not bound to accept the improved property, and are not further bound by their application for commissioners. The appointment of commissioners does not operate as a lis pendens. Besides, a lis pendens does not prevent the owner from improving his property. This matter was thoroughly considered in the case of Matter of Wall Street, where a bank had commenced a valuable building before proceedings had been commenced, and the bank was allowed for the building erected up to the time of the taking.

§ 225. Buildings on streets not laid out - · Dedication by plat. Property cannot be taken from the owner, except on compensation. Until taken, it remains his own, to use as he pleases. When taken, it should be paid for according to the value at the time of taking, which would include the cost of erections on it. The case of Furman

1 Lafayette R. R. v. Winslow, 66 Ill. 219.

2 Peters v. Mayor, 15 N. Y. Sup. Ct. 405.

8 Rider v. Striker, 63 N. Y. 136.

17 Barb. 617.

Street,' decided by Judge Bronson, establishes a doctrine, that if the city had adopted a map designating certain streets to be afterward laid out, then the owner building on any such street thereafter should not be entitled to compensation for any such building,' notwithstanding the order for opening the street was not made until seventeen years after the adoption of the map. The doctrine might properly apply to a case where the owner had subdivided his land, and filed a plat in a public office, designating streets, and where he had sold lots in conformity with such plat; and in such cases the owner, or his successors, have been held entitled only to nominal damages for streets taken, or for any erections thereon. Any interference, however, with the right of the owner to use his property as he pleases is certainly unauthorized, unless compensation is made. A plan of proposed streets cannot prevent the owner from using his own property and improving it; and not to allow for improvements made before the taking, would operate as a taking without compensation. The city may change its plan, and the lot-owner cannot hold the city to a particular plan. There is no mutuality, and no contract binding either party."

1 17 Wend. 649.

3

This doctrine is approved in District of Pittsburgh, 2 Watts & S. 320.

3 Wyman v. Mayor of New York, 11 Wend. 487; Livingston v. Mayor of New York, 8 Wend. 85; Matter of Lewis St., 2 Wend. 472; Matter of Seventeenth St., 1 Wend. 262; Department of Public Parks, 13 N. Y. Sup. Ct. 486 (overruling Matter of Brooklyn Heights, 48 Barb. 288); In re Story St., (Phila. C. P.) Leg. Int. 1876.

4 The State v. Carragan, 36 N. J. L. 52; The State v. Seymour, 35 N. J. L. 47; Matter of Wall St., 17 Barb. 617; Moale v. Baltimore, 5 Md. 314.

Moale v. Baltimore, 5 Md. 314.

272

CHAPTER XXI.

OF THE ASSESSMENT OF DAMAGES BY COMMISSIONERS.

? 226. Appointment of commissioners.

227. Disinterested persons-Freeholders.

228. Oath of commissioners.

229. Place and time of meeting — Adjournments.

230. Power of majority of commissioners to act.

231. Vacancy in board.

232. Supervision of court over proceedings of commissioners.

233. Control of the commissioners over proceedings — Application to com

missioners.

234. Prejudice of commissioners.

235. Conversing or discussing with commissioners.

236. Treating and entertaining commissioners.

237. Evidence before commissioners-Admissibility.

238. Record of commissioners.

239. Preserving rulings and evidence.

240. When report should be made.

241. Review of report - Recommitting report.

242. How to obtain a review.

243. Presumption in favor of the regularity of action of commissioners. 244. Irregularity in arriving at the amount of damages.

245. Wrong principle in estimating.

246. Error in amount of damages-Itemized findings.

§ 226. Appointment of commissioners. The appointment of commissioners to assess damages is generally delegated to a court of record, which generally retains supervision of their proceedings. If the court refuses to appoint commissioners, it may be compelled to, by mandamus.1 When commissioners are to be appointed by a court, there must be an exercise of judgment in the selection, and such commissioners cannot properly be selected by lot; nor can

1 Western R. R. v. Dickson, 30 Wis. 389.

273

the selection be confined to a number of individuals previously selected by a city council.1

§ 227. Disinterested persons- - Freeholders. - In order to obtain a fair assessment of damages, the statutes frequently require that the commissioners shall be disinterested, and in some cases disinterested freeholders. The qualification would exclude an uncle of one of the petitioners,2 or an owner of land affected. A stockholder in a railroad over which the proposed highway is to be laid is not disinterested. A stockholder in a railroad is not a disinterested commissioner in condemning land for the use of the railroad." The company cannot object, after an appraisement, that commissioners were stockholders in it; because the bias, if any, would be in favor of the company. The interest intended is a pecuniary interest, and does not refer to a disqualification from being within the fourth degree of consanguinity to one of the petitioners. In Indiana, the relationship of sister-in-law, niece, and nephew, owning land along the proposed improvement, would disqualify the brother-in-law or uncle from acting as appraiser, and the disqualification is held to extend to the sixth degree of consanguinity, or within the degree of second cousins.8 Where one of the commissioners was brother-in-law of the land-owner entitled to damages, the proceedings were coram non judice, and utterly void. The pecuniary interest

should be more than that of a simple tax-payer, whose taxes

1 Menges v. Albany, 56 N. Y. 374.

2 Clifford v. Commissioners, 59 Me. 262.

The State v. Delesdernier, 11 Me. 473; The State v. Crane, 36 N. J. L. 394. Contra, Matter of Southern Boulevard, 3 Abb. Pr. (N. s.) 447.

Friend, appellant, 53 Me. 387.

5 Rock Island R. R. v. Lynch, 23 Ill. 645.

6 Strang v. Beloit R. R., 16 Wis. 635.

7 Chase v. Rutland, 47 Vt. 393.

8 High v. Ditching Assn., 44 Ind. 356.

Taylor v. Commissioners of Worcester, 105 Mass. 225.

might be affected. There must be a more direct and peculiar benefit or advantage to be obtained.1 An omission to make the objection that the commissioner was interested, if the fact was known, would operate as a waiver.2 The report of persons disqualified by statute as interested parties is a nullity. The fact that the commissioners were disinterested freeholders should appear in the record of appointment. The fact is jurisdictional. In the absence of evidence on the subject, it is presumed that the commissioners were duly qualified." It is no answer, to an exception that one commissioner was disqualified, that the commissioners need not be unanimous. They should all be competent and disinterested, even though they do not all concur. One who has a bond for a deed, not having paid all the purchase-money, may properly be considered a freeholder.8

§ 228. Oath of commissioners.- Commissioners should be sworn before entering upon their duties. The public have an interest in the regularity of proceedings of matters such as the laying-out of roads, and the commissioners of view must be sworn, or the proceedings will be quashed.10 The action of commissioners is not defeated from the fact of their being sworn by an officer not authorized to administer oaths.

1 Chase v. Rutland, 47 Vt. 393; The State v. Crane, 36 N. J. L. 394. The rule in New Jersey was formerly different.

2 Towns v. Stoddard, 30 N. H. 23; Ipswich v. Essex, 10 Pick. 519; Groton v. Hulburt, 22 Conn. 178; Baldwin v. Calkins, 10 Wend. 167; Matter of Southern Boulevard, 3 Abb. Pr. (N. s.) 447; Matter of Wells County Road, 7 Ohio St. 16; Baddeley, ex parte, 5 Dow. & L. 575; Trustees of Emanuel Hospital v. Metropolitan Rail. Co., 19 L. T. (N. s.) 692.

3 Daggy v. Green, 12 Ind. 303.

Judson v. Bridgeport, 25 Conn. 426; The State v. Jersey City, 25 N. J. L. 309. Contra, Kellogg v. Price, 42 Ind. 360, where it is considered to be a matter to be raised by answer.

5 The State v. Jersey City, 25 N. J. L. 309.

App's Road, 17 Serg. & R. 388.

Rock Island R. R. v. Lynch, 23 Ill. 645.

New Orleans R. R. v. Hemphill, 35 Miss. 17.

9 Frith v. Justices, 30 Ga. 723.

10 Fisher v. Smith, 5 Leigh, 611.