
    City of Syracuse, Resp’t, v. Sidney L. Benedict et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 4, 1895.)
    
    1, Condemnation pboceedings — Extent.
    Chap. 291 of 1889, as amended by chap. 314 of 1890, does not authorize the city of Syracuse to condemn the right to lay any other pipe than the one specified in the act.
    
      3. Same — Averments denied by answer — Burden.
    Averments in a petition, which are denied by the answer, must be proved by the petitioner.
    3. Costs — Separate bills.
    Separate bills of costs will not be allowed against defendants who answer jointly in a proceeding to condemn land owned by them as "partners.
    Appeal from an order in favor of plaintiff.
    This was a proceeding brought by the plaintiff, in aid of the provisions of chapter 291 of the Laws of 1889, entitled “An act to establish and maintain a water department in and for the city of Syracuse,” as amended by chapter 314 of Laws of 1890, to acquire by right of eminent domain certain property, rights, and easements ■of twenty-eight defendants, over whose lands a proposed conduit line passed from Skaneateles Lake to the city of Syracuse. The petition of plaintiff is dated and vertified November 21,1892, and was presented at a special term of the supreme court at Syracuse on December 3, 1892. The appellants, Benedict and Martin, among others, put in an answer, and the issues joined were brought to trial at special term. Upon the decision of the court there made the judgment was entered referred to in the notice of appeal. In pursuance of the judgment, appraisers were appointed by order dated December 31,1892. They afterwards made a report, and an order of confirmation was made on 2d May, 1893, which is the order appealed from.
    
      C. R. Milford, for app’lts; W. A. Beach and Chas. L Stone, for resp’t.
   Per Curiam.

1. By section 18 of the act of 1889, as amended by the act of 1890, it is provided, as follows:

“The Syracuse water board is hereby authorized, under the restrictions and conditions hereinafter mentioned to take and conduct water not required for the Erie Canal, from Skaneateless Lake, to said city, through a pipe or main not exceding thirty inches in diameter for the purpose of supplying said city and its inhabitants with water.

It was held and decided by the special term on the trial of the issues “ that the plaintiff is entitled in this proceeding to acquire and condemn the right to lay, maintain, operate, and repair within ¡the limits of the property acquired for the purpose, not merely the one thirty-inch conduit pipe specified in the statute, and referred to in the petition, but also the right to lay, maintain, operate, and repair within said limit such other conduit pipe or pipes as from time to time the public use of said city hereinbefore referred to may require, and as the city may at any time be entitled to construct and lay.” In the judgment entered on the decision, it was adjudged that the plaintiff was entitled to condemn and acquire “the right to lay, relay, maintain, and repair thereon such water pipe or pipes as shall be necessary or proper for the purpose of ■conveying water from Skaneateles Lake to said city, and to make such excavations and perform such other work thereon as may be ¡necessary in the laying of such conduit pipe or pipes, and for its future care and maintenance.”. We are are of the opinion that the court erred in holding that the plaintiff had the right to condemn the right to lay any other pipe or pipes than the one specified in the statute. The grant from the state was limited to the water that could be conducted through the one specified pipe. No greater right was given, however much the city might in the future need it. The right of eminent domain could only be invoked by the city to utilize" the grant from the state as in fact made. That was limited to the one pipe as specified, and we cannot assume that the state will ever increase the.grant. The proposed use of the lands of the owner must be clearly embraced within the legitimate to object of the power conferred by the state. In re Staten Island Rapid Transit R. Co., 103 N. Y. 251, 257 ; 3 St. Rep. 48 ; In re Poughkeepsie Bridge Co., 108 N. Y. 483 ; 13 St..Rep. 770; Lewis, Em. Dom. § 253 et seq.

2. It was found by the special term, as matter of fact, that the-plaintiff has attempted to acquire by the purchase .from the appellants the property or rights sought to be obtained, but has been unable to agree with them. There was an allegation to this effect in the petition, and it was denied by the answer. There was no-proof that sustained the finding, and it is erroneous, unless the burden is on the appellants to disprove the allegation. "This was held to be the rule in some cases under the peculiar provision of the general railroad act (chapter 140, Laws 1850, § 15) which provided that on the presentation of the petition any of the persons affected “ may show cause against granting the prayer of the petition, and may disprove any of the facts alleged in it.” There is however, no such provision in the condemnation law (Code Civ. Pro. § 3357 et seq.), and we held at this term, in the case of City of Syracuse v. Stacey, 67 St. Rep. -, that asimilar proceeding under the Syracuse water act is to governed by the provisions of the Code. The proceedings (sections 3364-3368) are made to conform to similar proceedings in actions, and it is quite evident, that the issues are to be formed and tried as in ordinary actions. As said in Re Broadway & S. A. R. Co., 73 Hun, 13; 57 St. Rep. 108: “An answer in the form prescribed by section 3365 raises an issue, and the corporation seeking to proceed must meet it by proof." We are of the opinion that the plaintiff was called on to furnish proof of its attempt to purchase and inability to acquire.

3. In the decree and judgment it is directed that the plaintiff" recover separate bills of costs against the said defendants Sidney L. Benedict and Nelson Martin. In the petition it was alleged that Benedict and Martin were copartners, and owned the premises as such, and it is so found in the decision. The answer of Benedict, and Martin was a jointone. By section 3372 it is provided :

“If a trial has been had all the issues determined in favor of the-plaintiff, costs of the trial shall not be allowed to the defendant, but the plaintiff shall recover of any defendant answering, the costs of-such trial caused by the interposition of the unsuccessful defence, to be taxed by the clerk at the same rate as is allowed to the prevailing party for the trial of an action in the supreme court.”

Under this provision, separate bills of costs should not, we think have been allowed against the appellants. See Van Tine v. Crane, 1 Wend. 524; 17 Am. & Eng. Enc. Law, 918.

Order appealed from reversed, with ten dollars costs and disbursements, and appraisal vacated, and judgment reversed, with costs of the appeal to the appellants, and new trial ordered.  