
    In the Matter of the Application of The Union Elevated Railroad Co., Resp’t, to condemn land of J. C. Jewett, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    1. Eminent domain—Damages.
    The true rule of damages in condemnation of land is the difference in value between the property as it was before the road is constructed and as it will be after construction. Where the land is subject to the easement of the public to use it as a street, the additional taking for a railroad is-only nominal.
    2. Same.
    Land cannot be taken for stations, engine houses, etc., under a petition which does not allege a necessity for such taking.
    3. Same—Petition—Appeal.
    An objection to the petition, in that it states inability to acquire the property in the disjunctive, cannot be raised for the first time on appeal.
    Appeal from report and appraisal of commissioners and from order confirming the same.
    
      B. F. Tracy, for app’lt; &. W. Wingate, for resp’t.
   Barnard, P. J.

The appellant Jewett is the owner of land situated on Fifth avenue, Brooklyn. The Union Elevated R. R. by legal authority laid its road on this street, and this proceeding was instituted to assess the damage which ought to be paid to the land owner therefor. The commissioners followed the true rule: the difference in value between the property as it was before the road is constructed and as it will be after constructed. The land taken must be paid for at its full value, but as this was subject to the easement of a right of public travel over it as a city street the additional taking was only nominal. The rule of damages as followed by this commission was recently affirmed by this court in the Matter of Brooklyn Elevated R. R. Case, 28 N. Y. State Rep., 627. The description of the land as stated in the petition is suffcient. 3STo objection was taken to any defect in this respect, although the order itself was on other grounds opposed. There is no indefiniteness. The law gives the right to build a road for two tracks. The petition stated that Mr. Jewett owned adjacent lands with a claim to an easement in this street, and that the property of the owner in the street in front of Mr. Jewett’s land was required for that purpose. The lands to be taken and the manner of taking being required by law so far as-respects the road itself, no greater particularity was needed and none was asked for. There could be no land taken for station, engine house, etc., under this petition. Uo necessity is stated for such a condemnation and the necessity for such taking was a fact issuable by the land owner if he chose to make it an issue.

The fact of the inability of the company to obtain the title of the owner without the intervention of commissioners is sufficiently stated in the petition. It states that the petitioner is unable to acquire title to the property asked for because the owner would not sell the land and rights for a reasonable price, or because the owner could not be found. No objection was taken to the petition and it cannot be doubted that the owner could by denial of the fact compel the petitioner to prove when and how the attempt to acquire title by agreement was prevented. The disjunctive statement which is subject to criticism as being uncertain as to any individual land owner was not objected to and it is too late after the order has been affirmed on appeal to raise the question without an issue as to the fact in the answer of the land owner.

The order should be affirmed, with costs and disbursements.

Pratt and Dykman, JJ., concur.  