(after stating the case). The underlying element in the present controversy is the contested validity of the ex parte action taken in 1874 by the plaintiff and its efficacy1 in vesting an easement in him, and this again depends upon the question whether the memoranda in regard .to notice, accompanied with the further fact of the presence ,of Durham with the appraisers when they were acting, is -in law an appearance dispensing with the service of notice ,nr summons. The section of the law applicable to this in *323 quiry is found in chap. 39, sec. 3, of Bat. Rev., and is in these words:

“ The owners of such land (through which the drainage is to be had) shall, if in the county in which said lands or some part thereof is situated, and known to such applicant, have ten days’ notice of the time and place of meeting to make such assessment, and may attend before the appraisers, and be heard on the subject of the proposed assessment. Such notice shall be given personally by such applicant in writing, by reading or leaving a copy at last place of residence if the party to be notified resides in the county where said land or any part thereof are situated,” with provision for publication, otherwise “ said notice, whether personal or made in person or by publication, shall state the time and place of making such assessment, and shall contain a clear description of the proposed work,” &c. The proofs so made in case of personal notice must be by affidavit of the applicant, attached to a copy of the notice “stating the time, place and mode of service, whether, by reading or by true copy left at the last and usual place of re.-dden.ee,” and they must be filed with the other papers in the case in the office of the County Register. As the proceeding is summary and special, and results in appropriating one man’s property to the use of another without the assent of the former, these minute and particular directions are prescribed as essential to the efficacy of the action of the appraisers, and the plaintiff’s contention is that they are dispensed with by the presence of the then owner of the premises when they undertook to perform the assigned duty.

We do not think all these safeguards thus thrown around the exercise of this special power can be thus disregarded and a legal result reached in so doing.

The defendant Durham does not apj>ear on the record as a party, and that he was with the appraisers only appears from their own report to the board. He may have offered *324 no direct resistance to what the appraisers were doing, as, under license from a preceding proprietor, he had been using this method of drainage, and, as we understand the complaint, the cost of the enlargement, $225, was borne by the plaintiff.

It is quite a different proposition to ask for a judgment against the defendants, compelling them to pay a proportion of the expenses of clearing out obstructions, when, as the answer avers, the former widening was alone for the plaintiff's advantage and not of theirs, the canal being sufficient for the drainage of their land before being enlarged.

We therefore concur in the judgment, dismissing the proceeding.

No error. Affirmed.