
    The New Rochelle Water Works Co., Resp’t, v. Edward F. Brush et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    1. Eminent domain—Water companies—Petition.
    A failure to state in a petition to condemn lands by a water company that the water to be supplied under the contract made by it with the village was “for the extinguishment of fires and for sanitary and other public purposes,” is cured by proof upon the trial and a finding of a contract in the express terms of the statute.
    
      2. Same.
    Where the proceeding is to acquire land and the riparian rights of am owner .whose remaining property will thereby be severed from such, riparian rights, it is not necessary to describe in the petition the whole-property which may be injuriously affected by the severance, but only that sought to be acquired.
    Appeal from judgment of special term condemning lands of the appellants, and appointing commissioners of appraisal.
    
      Isaac N. Mills, for app’lts; M. J. Keogh, for resp’t.
   Cullen, J.

—This is an appeal from a judgment of the special-term condemning lands of the appellant and appointing commissioners of appraisal. The plaintiff, a water company organized under the statute and having a contract with the village of ¡New Rochelle, sought to acquire the lands for the purpose of a reservoir.

The objections taken to the proceeding by the appellants relate to the sufficiency of the petition.

The first defect pointed out in the petition is its failure to state the residences of persons holding liens on the lands sought to be acquired, the residence of the owners alone being given. To obviate this defect an order was made by the court amending the petition by stating such residences. Ample power for this amendment is given by § 3368, which makes all the provisions of title 1, chapter 8 of the Code applicable to these proceedings. It may be that the petition as amended should have been verified anew, but no such objection Was taken.

The second objection is that the petition merely alleged that the plaintiff had made a contract to supply the village with pure and wholesome water, without stating that the water was to be supplied “for the extinguishment of fires and for sanitary and other public purposes.” This defect (if defect it was) was cured by the proof adduced on the trial, and the finding by the court of a contract in the express terms of the statute. This course was authorized by the section already cited.

The last objection relates to the sufficiency of the description of the property to be condemned. So far as such description relates to lands sought to be acquired in fee, no criticism can be made. Those lands are described with great accuracy. The question arises by the insertion in the petition of the desire to acquire certain easements, which are in many respects stated with great indefiniteness and uncertainty. The land taken from the appellants is the bed of the stream and a strip of upland adjacent thereto. The petition seeks to acquire the fee of the river and the waters thereof “ and the right to intercept and divert the flow of the water of the said river from the lands of said riparian owners, and the right to prevent the flow or drainage of noxious or impure matters from the lands of said riparian owners into plaintiff’s reservoirs or sources of supply, .and also the riparian rights in and to Hutchinson’s river.”

The appellants’ tract is a portion of a large farm which adjoins the river. Their only right to the stream arises from the ownership of its bed and the adjacent upland. The ownership of this piece sought to be taken from them may be of great advantage to the remainder of the farm, and the severance of the strip may depreciate the value of such remainder. For this the appellants will be entitled to compensation, but it is not necessary to describe in the petition the whole property which may be injuriously affected by the severance, but only that sought to be acquired.

With the acquisition of this strip the “ riparian rights ” of the owner will cease. But if the plaintiff seeks to acquire anything more than such rights as would enure to it by law from the ownership of the land and stream, such rights must necessarily be appurtenant to other lands. In that case the other lands to which the easement is supposed to be appurtenant must be described. We assume, however, that such is not the intent of the plaintiff, but the appellants’ rights in the rest of the farm should not be jeopardized by the broad language of the petition. The condemnation should be limited to the lands described in the petition and the waters of the river.

The order appealed from should be modified as indicated, and as modified affirmed, without costs to either party.

Barnard, P. J., concurs; Dykman, J., not sitting.  