Shekmaiv, J.
In the case now submitted to our consideration, we will enquire, first, whether this injunction was properly granted; and secondly, if it was, whether such measures have been since adopted, by the defendants, that it ought to be dissolved.
1. The plaintiff claims, that the road was never laid out, in the manner prescribed by the charter; and that the appraisal of damages was wholly void. These allegations were found to be true, and were the grounds on which the injunction was granted. It is now found, upon proof not presented to the judge who granted the injunction, that the centre line laid by the directors was approved by the commissioners, and recorded in the books of the company. That this should appear on record somewhere, was indispensable, that the public and the parties might all resort to it, and that its location might be preserved with certainty. It is now shewn, that the centre line was laid and established by a due observance of all the requisites of the charter. Still, however, the width of the road was not defined, by any recorded or even written act of the company, or the directors. There was, therefore, no road or way in existence, which could be appraised by the freeholders. Consequently, the damages were assessed and tendered to the plaintiff, before there was any subject of assessment. Until the acts necessary to fix [407]*407the width of the road were unalterably executed, an assessment of damages must be merely hypothetical, and of no legal validity. That assessment was made on the 27th of November, 1838. The company had not then acted on the question, how wide the road should be. There was not a rod of earth appropriated to their use ; the centre line only had been laid.
The votes of the company of August 21st, and September 6th, 1838, on which the defendants rely, do not purport to give authority to establish the width of the way. The first gives certain persons power “ to treat with owners of land in the vicinity of Hartford, for the rail-road company, and to purchase the same, and to authorize the chief engineer to stake out the course of the line in that vicinity.” Nothing is said of the width of the road.ji The other directs the president and agent “ to put on sufficient force ” to have the North division in preparation for letting, without delay. What was meant by this, does not very distinctly appear; but nothing can be further from its import than designating the width of the way. Equally irrelevant to this point, is the authority given by the agent, in his letter of June 17th, 1836, addressed to Mr. Goodwin, to make contracts for land, “ subject to the conditions ” of the final location of the road. Had any authority to establish the width of the road been conferred, it would be of no avail, unless carried into execution. That could not be done, until the width was defined, approved by the commissioners, and recorded on the books of the company.
The information given to the appraisers of the “quantity of land wanted by the company,” however definitely that quantity might be specified, and the width given, would be equally inoperative in regard to the establishment of the width of the road. Neither these, nor any other facts in the finding of the court, which have beén relied on, tend to shew, that the width of the road was established, when the first assessment was made ; admitting that it could be done, without the approbation of the commissioners. The authority given to the company “ to lay out their road not exceeding six rods wide,” had never been exercised ; and the mere establishment of the centre line, has been justly considered, in the discussion of the case, and in the practical operations of [408]*408the company, as effecting nothing more than its language imports. Considering the great importance of protecting private rights, by requiring a strict observance of the terms on which private property may be taken for public use, and the very defective measures which had been attempted for the establishment of the width of this road, we think the company were justly enjoined against further prosecuting their works under the pretended title which they claimed.
2. But since the injunction was granted, viz. on the 22d of August, 1839, the commissioners, who were appointed at the preceding session of the legislature, approved the width of the road, as then laid out by the directors and recorded ; and it is admitted, that it thereby became established in conformity with the charter, and the requirements of law, if they had power to perform that service. The road being thus defined, the freeholders appointed in 1836, who made the first assessment, appraised the damages of the plaintiff, on the 23d of August, 1839, at 1,650 dollars; and the amount has since been tendered and refused ; and the enquiry is now presented, whether, on the ground of these proceedings, the injunction shall be dissolved.
Several questions are raised by the plaintiff, as to the validity of this location of the road, and the last appraisal of damages. That the company, the commissioners, and the appraisers, have at last done, in point of form, all the acts required by the charter, is not denied; but the plaintifl still insists, that the injunction should be continued, for the following reasons : First, that the commissioners who approved the width of the road, were not constitutionally appointed, by the legislature. Secondly, that the notice given to the plaintiff’, by the appraisers, was insufficient in point of time, and in regard to the property to be appraised. Thirdly, that no appraisal could be made, unless the parties previously disagreed as to the amount of damages; and that there was no sufficient proof of any such disagreement anterior to the last appraisal. Lastly, that the appraisers had previously exhausted their powers, by the assessment which they made on the 27th of November, 1838, and returned to the clerk of the superior court, whereby they became functi officiis, so that their last appraisal was void.
1. The first objection is professedly grounded on the princi-[409]*409pie that the appointment of commissioners by the legislature, atter the charter was granted m 1833, was a violation ot rights of the company ; no power to alter the original grant having been preserved. But a board of commissioners, to act as impartial judges between the company, on the one part, and the public and individuals on the other, was indispensable, and their appointment was not vested in the company. The nature of their duties required that they should, from time to time, be appointed by the legislature, and be exempt from any other influence or controul. This power remains absolute and discretionary. It is not varied, or impaired, by any clause in the charter.
2. It is next insisted, that the notice given by the appraisers to the plaintiff, to attend upon the last appraisal, was insufficient in regard to time, and too indefinite as to the subject of appraisal. It is not stated, that the plaintiff was absent from home, or unable to appear. His house was within eighty rods of the place. He received the notice the day previous to the time appointed. He requested no delay, which he easily might, had it been necessary; and a compliance with such a request, if reasonable, may be justly presumed. On the contrary, he sent the appraisers a written notice, which was served by an indifferent person, and is now on file, that he did not acknowledge their authority, and should not appear.
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Shekmaiv, J.
In the case now submitted to our consideration, we will enquire, first, whether this injunction was properly granted; and secondly, if it was, whether such measures have been since adopted, by the defendants, that it ought to be dissolved.
1. The plaintiff claims, that the road was never laid out, in the manner prescribed by the charter; and that the appraisal of damages was wholly void. These allegations were found to be true, and were the grounds on which the injunction was granted. It is now found, upon proof not presented to the judge who granted the injunction, that the centre line laid by the directors was approved by the commissioners, and recorded in the books of the company. That this should appear on record somewhere, was indispensable, that the public and the parties might all resort to it, and that its location might be preserved with certainty. It is now shewn, that the centre line was laid and established by a due observance of all the requisites of the charter. Still, however, the width of the road was not defined, by any recorded or even written act of the company, or the directors. There was, therefore, no road or way in existence, which could be appraised by the freeholders. Consequently, the damages were assessed and tendered to the plaintiff, before there was any subject of assessment. Until the acts necessary to fix [407]*407the width of the road were unalterably executed, an assessment of damages must be merely hypothetical, and of no legal validity. That assessment was made on the 27th of November, 1838. The company had not then acted on the question, how wide the road should be. There was not a rod of earth appropriated to their use ; the centre line only had been laid.
The votes of the company of August 21st, and September 6th, 1838, on which the defendants rely, do not purport to give authority to establish the width of the way. The first gives certain persons power “ to treat with owners of land in the vicinity of Hartford, for the rail-road company, and to purchase the same, and to authorize the chief engineer to stake out the course of the line in that vicinity.” Nothing is said of the width of the road.ji The other directs the president and agent “ to put on sufficient force ” to have the North division in preparation for letting, without delay. What was meant by this, does not very distinctly appear; but nothing can be further from its import than designating the width of the way. Equally irrelevant to this point, is the authority given by the agent, in his letter of June 17th, 1836, addressed to Mr. Goodwin, to make contracts for land, “ subject to the conditions ” of the final location of the road. Had any authority to establish the width of the road been conferred, it would be of no avail, unless carried into execution. That could not be done, until the width was defined, approved by the commissioners, and recorded on the books of the company.
The information given to the appraisers of the “quantity of land wanted by the company,” however definitely that quantity might be specified, and the width given, would be equally inoperative in regard to the establishment of the width of the road. Neither these, nor any other facts in the finding of the court, which have beén relied on, tend to shew, that the width of the road was established, when the first assessment was made ; admitting that it could be done, without the approbation of the commissioners. The authority given to the company “ to lay out their road not exceeding six rods wide,” had never been exercised ; and the mere establishment of the centre line, has been justly considered, in the discussion of the case, and in the practical operations of [408]*408the company, as effecting nothing more than its language imports. Considering the great importance of protecting private rights, by requiring a strict observance of the terms on which private property may be taken for public use, and the very defective measures which had been attempted for the establishment of the width of this road, we think the company were justly enjoined against further prosecuting their works under the pretended title which they claimed.
2. But since the injunction was granted, viz. on the 22d of August, 1839, the commissioners, who were appointed at the preceding session of the legislature, approved the width of the road, as then laid out by the directors and recorded ; and it is admitted, that it thereby became established in conformity with the charter, and the requirements of law, if they had power to perform that service. The road being thus defined, the freeholders appointed in 1836, who made the first assessment, appraised the damages of the plaintiff, on the 23d of August, 1839, at 1,650 dollars; and the amount has since been tendered and refused ; and the enquiry is now presented, whether, on the ground of these proceedings, the injunction shall be dissolved.
Several questions are raised by the plaintiff, as to the validity of this location of the road, and the last appraisal of damages. That the company, the commissioners, and the appraisers, have at last done, in point of form, all the acts required by the charter, is not denied; but the plaintifl still insists, that the injunction should be continued, for the following reasons : First, that the commissioners who approved the width of the road, were not constitutionally appointed, by the legislature. Secondly, that the notice given to the plaintiff’, by the appraisers, was insufficient in point of time, and in regard to the property to be appraised. Thirdly, that no appraisal could be made, unless the parties previously disagreed as to the amount of damages; and that there was no sufficient proof of any such disagreement anterior to the last appraisal. Lastly, that the appraisers had previously exhausted their powers, by the assessment which they made on the 27th of November, 1838, and returned to the clerk of the superior court, whereby they became functi officiis, so that their last appraisal was void.
1. The first objection is professedly grounded on the princi-[409]*409pie that the appointment of commissioners by the legislature, atter the charter was granted m 1833, was a violation ot rights of the company ; no power to alter the original grant having been preserved. But a board of commissioners, to act as impartial judges between the company, on the one part, and the public and individuals on the other, was indispensable, and their appointment was not vested in the company. The nature of their duties required that they should, from time to time, be appointed by the legislature, and be exempt from any other influence or controul. This power remains absolute and discretionary. It is not varied, or impaired, by any clause in the charter.
2. It is next insisted, that the notice given by the appraisers to the plaintiff, to attend upon the last appraisal, was insufficient in regard to time, and too indefinite as to the subject of appraisal. It is not stated, that the plaintiff was absent from home, or unable to appear. His house was within eighty rods of the place. He received the notice the day previous to the time appointed. He requested no delay, which he easily might, had it been necessary; and a compliance with such a request, if reasonable, may be justly presumed. On the contrary, he sent the appraisers a written notice, which was served by an indifferent person, and is now on file, that he did not acknowledge their authority, and should not appear.
In regard to the subject of appraisal, the notice to the plaintiff describes it as land owned by him, “ and of which the said state of 'Connecticut are mortgagees.” But the state are not mortgagees of all, but of a part only of the land appraised. The notice, however, gives this further description: “ as by the petition of said company against said Williams^ and said state of Connecticut, dated the 15th day of September, 1836, on the files of said court, and by the order and decree of said court upon said petition, and by the subsequent proceedings of the directors and agents of said company, and of the commissioners, will more fully appear.” To that petition, which was served by copy, on the day of its date, Mr. Williams appeared as a party, and it is still on file. It defines the boundaries of all the land to be appraised, with precision. For these reasons, we consider the objections to the notice given by the appraisers, as insufficient.
[410]*4103. It is justly insisted, that the appraisers could not legally estimate the damages of the plaintiff, until it was ascertained that the parties could not agree. In some of the cases cited, particular forms of dissent were prescribed, as preliminary to an assessment. In The King v. Bagshaw, 7 Term Rep. 363. notice was to be given to the owners of the land, on which a way was to be laid, twenty days before the appraisal, and if they could not then agree, the assessment might be made. But in this case, the charter merely provides, that “ if the person or persons to whom damage may so arise, and said company cannot agree as to the amount of such damages,” &c. No particular acts are to be done, or forms to be observed. The question whether they can or cannot agree, is to be decided upon evidence. A formal negotiation is not necessary. The inability of the parties to agree, is the only prerequisite ; and that may be shewn, by any testimony evincive of the fact. The company had tendered Mr. Williams 1,650 dollars for this same land, and he had refused it. This, although made in pursuance of a void appraisal, conduced no less to prove that the plaintiff would not accept that sum, as a compensation. The application of the company for a new appraisal, is evidence of their conclusion to offer no more. On the question, whether the parties could agree, it is of little importance whether the plaintiff announced his determination before or after the width of the highway was legally established, if the precise subject was specified in the offer, and not altered, by the legal settlement of the boundaries. But this and other circumstances, which conduce to prove that the parties could not agree, are evidence for the superior court to consider, whose province it is to decide questions of fact. We can only say, that they are such as maybe justly weighed, in order to ascertain and decide whether the parties could agree or not. If that court should be satisfied, on considering the evidence, that they could not agree, this objection to the appraisal, which is otherwise conclusive, will be removed.
4. It is a general rule of law, that where a board is designated for the performance of a particular act, without any general powers, as appraisers of land on an execution, a committee to lay out a highway, arbitrators or referees, by rule of court, or appointment of the parties, auditors in an action of [411]*411account, &c. their powers are exhausted, by one performance of the service ; and without a new delegation of authority, they cannot amend or revise their proceedings, or do the duty a second time. The only question in this case, is, have they performed it once ? If they have, they arefuncti officiis, and can do nothing more, however erroneous or incorrect their proceedings may have been. But if they have not, there is no ground for this objection.
To enable the freeholders to make an appraisal, it was indispensably necessary that there should be something to appraise. The subject matter, on which they were appointed to act, must be in existence. If appraisers appointed under the laws of this state, to aid in the levy of an execution on land, should make their valuation, and return it to the officer before he had taken any estate whatever, the appraisal would not be merely erroneous or incorrect, but utterly void ; and not the less so, if the same land should be afterwards taken by the officer. In such a void proceeding, they would not exercise their power, much less exhaust it; and would still be qualified to commence and perform the duties of their appointment. We have endeavoured to show, that in this case, there was no land taken for the rail-road prior to the first appraisal in 1838. That act of appraisal was not therefore done officially, but was void ; and the same persons remained qualified to make the appraisal in 1839,
We would advise, that if the superior court shall find, upon the evidence, that the parties could not agree on the damages, the injunction should be dissolved; but otherwise, be continued in force, until the further order of the court.
In this opinion, Church and Waite, Js. concurred.
Williams, Ch. J. being related to one of the parties, and Storks, J. being interested in the result, gave no opinion.
Injunction dissolved provisionally.