
    The Board of Water Commissioners of the Village of Philmont, New York, Appellant, v. John Shutts, Jr., and Others, Respondents, Impleaded with Others.
    
      Condemnation Law — when a repcn’t may he sent hack to the commissioners to-specify the elements of damage and the principle adopted in its determination — appealable order.
    
    
      It seems that, in proceedings under the Condemnation Law (Code of Civ. Proc.. § 3371, et seq.), the court has power, upon a motion to confirm a report of commissioners appointed under said act, to send the report back to the commissioners, with directions to them to specify in a supplementary report such particulars as .will indicate the elements of the damages they have awarded or the principle upon which the award proceeded, or both; tint such a course should not be taken unless it is made to appear that there is probable cause to believe that the commissioners have made a material error, which neither their report nor their minutes disclose.
    No such order is proper where the moving party merely hope's that he may, by compelling the commissioners to respond to certain questions inserted in the-order, discover some ground, for opposing a confirmation of the report.
    An order, sending such a report back to the commissioners, affects a substantial right and is appealable under section 1356 of the Code of Civil Procedure.
    Appeal by the plaintiff, The Board of Water Commissioners of the Village of Philmont, New York, from an order of the Supreme Court, made at the Greene Special Term and entered in the office of the clerk of the county of Columbia on the 26th day of June, 1897, sending back to the commissioners appointed ' in condemnation proceedings their report therein, and requiring - them to state whether they found certain things to be facts, and whether in making their award they made any allowance upon account of certain items as to which the owners claimed damages, and, if so, what amount.
    
      L. F. Longley, for the appellant.
    
      John D. Bell and John Cadman, for the respondents.
   Landon, J.:

The appellant moved at Special Term to confirm the report of the commissioners. The report is regular in form, and the proceedings which led to it were also regular. The report states the amount awarded to each respondent, but does not state the items of the award. The respondents insisted at Special Term that in the absence of any statement in the report of what specific elements of alleged damage the commissioners considered, and upon which of them they made an allowance and how much, and which of them they rejected, and whether they rejected them upon the law or the facts, they could not pz'esent to the court, in an accurate or intelligible form, their objections to the confirmation of the report. Upon their motion the court made the order appealed from, thus postponing the motion for the confirmation of the report.

The appellant had previously acquired a- small lake for the purpose of supplying the village of Philmont with pure and wholesome water, and had constructed a dam at its outlet, by means of which the outflow of the water into a small stream would be suspended in the dry seasons. The land of one respondent adjoins the lake; the stream takes its rise from the outlet of the lake and flows through his lands, and then, one after the other, through the lands of the other respondents. The stream is further supplied from springs along its course. The report ’ states “that the plaintiff * * * desires and intends to condemn and acquire the permanent right to prevent said overflow of water into said stream, except at such times and when there shall be a surplus of water in said lake beyond and in excess of the needs of the plaintiff for its own use for the purpose set forth in this petition.” Much testimony was directed to the question whether, without the outflow from the lake, the defendants’ lands had a sufficient supply of water for the cattle usually pastured thereon.

Section 3371 of the Code of Civil Procedure provides that, “ upon filing the report of the commissioners, any party may move for its. confirmation, * * * and upon feucli motion the' court may confirm the report, or may set it aside for irregularity or for error of law in the proceedings before the commissioners, or upon the ground that the award is excessive or insufficient.”

Section 3382 provides that - “ where the mode or manner of conducting all or any of the proceedings, therein is not expressly provided for by law, the court before’ whom such proceedings may be pending shall have the power to make all necessary orders and give necessary directions to carry into effect the object and intent of this title, and of the several acts conferring authority to condemn lands for public use, and the practice in such cases shall conform as near as may be to the ordinary practice in such court.”

The appellant urges that the proceeding being statutory, and section 3371 requiring the court, upon the motion to confirm, either to confirm the report or to set it aside, the order sending it back to the commissioners was unauthorized; that section 3382 does not apply, since the mode or manner of conducting the proceeding upon the motion to confirm, is expressly provided for by section 3371. The appellant cites Matter of Brooklyn Elevated Railroad Co. (80 Hun, 355); Dansville, etc., R. R. Co. v. Hammond (77 id. 39); N. Y. & E. R. R. Co. v. Corey (5 How. Pr. 177). But neither of these cases decides this question. The respondents cite Matter, of Boston, H. T. & W. R. Co. (22 Hun, 176); Matter of New York Elevated R. R. Co. (35 id. 414). In each of these cases an order was made pending the decision Upon the motion to confirm the report, sending the proceeding back to the commissioners for their further report' — in the first case as to the principle upon which they made their award, and in the second case as to what easements they made their award upon. No question -was before the court upon' appeal as to the propriety of either order. It is not contended that any error ■ appears upon the face of the report, or that any error was in fact made by the commissioners in the principle of their award, or that they excluded any element of damage which they should have included. The respondents are dissatisfied with the amount of the award, and they have instituted this supplemental experiment, hoping to find thereby something to their advantage.

We do not say that no case can arise in which the court may not send back a report, regular upon its face, requiring the commissioners to specify in a supplemental report such particulars as will indicate the elements of the damage they have awarded, or the principle upon which they have made their award, or both. The award may be so large or so small as to suggest error in some of these respects. The record may suggest but not show it. Perhaps facts outside of the record may be shown by affidavit tending to show it. The inherent power of the court is, no doubt, adequate to enable it to secure such obtainable facts as are necessary to an intelligent decision. But wre think the report should not be sent back, unless it is at least made to appear to the court that there is probable cause to believe that the commissioners have made a material error which neither their report nor their minutes disclose.

Such probable cause is not here shown. We do not think the report should be sent back merely because a party to it is dissatisfied, and hopes to be able by compelling the commissioners to res]3ond to the questions inserted in the order • to discover some ground for opposing its confirmation. If the order should be granted in this case the precedent would seem to justify the like application in nearly every case, upon the application of the discontented party upon his affidavit characterizing the award as too large or too small, and his ignorance, of its principle or the elements of damage omitted from or included in it.' We must hesitate in sanctioning such practice.

It is urged that this is an interlocutory, discretionary order, upon a question of practice, in a special proceeding not affecting a substantial right, and, therefore, is not appealable. (Code Civ. Proc. § 1356.) It is the substantial right of the plaintiff to have its motion to confirm passed upon by the court, unless sufficient cause to the contrary is shown, and not to be delayed or embarrassed by experimental proceedings for which no probable justifying cause is shown.

The order should be reversed, with ten dollars costs and disbursements-.

All- concurred.

Order reversed, with ten dollars costs and disbursements, and case remitted to the Special Term for further proceedings..  