
    CITY OF JOHNSTOWN v. WADE et al.
    (Supreme Court, Appellate Division, Third Department.
    May 4, 1898.)
    1. Eminent Domain—Street Purposes.
    Laws 1895, c. 508, §§ 72, 81, provide that no expenditures for any local improvement in the city of J., the expense of which- is to be defrayed by local assessment, shall be incurred, unless the common council shall first, by resolution, declare its intent to make such improvement-, and whenever the council shall intend to extend any street, and the lands of any person will be necessary for that purpose, they shall declare by resolution their intention to take said property, and, if they are unable to purchase it of the owner, to acquire it by condemnation. ■Held, that the city was not compelled to condemn property along the extension of a street, which it already owned, or could purchase.
    2. Same—Procedure.
    Code, § 3360, requires that a petition for condemning land to be used, as .a street shall set forth the lands necessary to be acquired, and the inability of the petitioner to agree with the owner of the land for its purchase. 'Held, where a petitioner sets forth that all the owners of the land except one had consented to convey to the city, that it was unnecessary to condemn any lands except those belonging- to that one, and the subsequent refusal of the other owners to convey, or the failure of the city to obtain their lands under condemnation proceedings, will not invalidate the proceedings had to condemn the lands of that one.
    
      Appeal from special term
    Action by the city of Johnstown against Mortimer Wade and others. From an order setting aside a judgment against the plaintiff, tliedefendants appeal.
    Reversed.
    On or about the 10th day of March, 1S9G, a petition, certified to by the city engineer to have been signed by the required number of property owners, both as to the majority of owners and number of linear feet front, was filed with the city clerk of the city of Johnstown, petitioning the mayor and common council to lay out, open, and extend South Market street, in said city, from West Montgomery street to the south boundary line of the city of Johnstown. Thereafter, and on the 25tli day of May, 1896, the common council of said city passed a resolution reading in part as follows: “Resolved, that the common council of the city of Johnstown intend to extend South Market street, in said city, from its present southerly terminus, in West Montgomery street, south to the south corporate limits of said city.” Tlie resolution further provided for tlie width of the street, and that the same should, as nearly as may be; form one and the same straight line with the easterly line of said South Market street as then laid out; and a further resolution provided that the city engineer should survey the said extension, and place' monuments thereon, and make duplicate maps thereof, as required by the charter of the city. Thereafter, and on the 20th day of July, 1896, tlie common council, after reciting that it had declared its intention to extend South Market street southerly from West Montgomery street, through the lands of Mortimer Wade, James Younglove, Isaac Gustin, and James Heagle, to First avenue, and that the lands of said persons were necessary to be taken for such extension, and that the common council had caused the-same to he surveyed and monumented, showing the line thereof, and a map to lie made of the same, and filed in tlie proper clerk’s office, which map shows tlie lots, tracts, and parcels of land necessary to be taken, and making a description of the lands necessary to he'taken, then adopted a resolution declaring their intention to appropriate such property “for the proposed improvement and extension of South Market street southerly from its present terminus, in Montgomery street, to First avenue.” First avenue is some four blocks north of the south boundary line of the city. On the 7th day of December, 1896, the common council of said city, after reciting that the common council had caused the lands in the resolutions hereinafter described to be surveyed, “with the intention to acquire the same for the purpose of extending South Market street south from West Montgomery street to First avenue,” and also reciting that they had placed monuments showing- the line thereof, and had a map made of the same, which had been filed in the proper clerk’s office, showing upon such map the lots and parcels of.land necessary to be taken, adopted a resolution reading- in part as-follows: “Resolved, that the common council, by this resolution, declares- its intention to take and appropriate, for the proposed extension of South Market street from West Montgomery street southerly to First avenue, all that certain lot of land belonging to Mortimer Wade.” Then follows a description of the' lands of Mortimer Wade, and also a description of the lands of James Younglove, Isaac Gustin, and James Heag'le. At the same meeting of the common council it was resolved “that a written offer to purchase the property of Mortimer Wade for the extension of South Market street, in the city of Johnstown, at eight thousand dollars, signed by the mayor, and attested by the clerk under the seal of the city, be made to Mortimer Wade, in the foEowing form.” Then follows the form of the offer. This offer was served upon Wade, who refused to accept it, whereupon a petition was presented by the city of Johnstown to the supreme court, asking for the condemnation of such property. Notice of such application being given to the defendant, he served a written acceptance of the offer theretofore made by the city to purchase his property; and then, upon a written stipulation signed by the attorney for the city and the attorney for Wade, Alida G. Weils, and Emma Taylor (the last two of whom held mortgages upon the property in question), a judgment was entered condemning- such property, and ordering that upon the payment of §18,000 ($2,000 thereof to the defendant Emma Taylor, and the balance to Alida G. Weils), the plaintiff (that is, the city of Johnstown) may enter into possession of the real property'described in the petition, and take and hold it for the public uses therein specified; that. is to say, “for the extension of South Market street from Montgomery street to First avenue.” This order and judgment were made at a special term of this court on the 18th day of January, 1897, and were entered in the Fulton county clerk’s office on the 27th day of January, 1897. Thereafter, and on the 10th day of August, 1807j the defendants caused an entry to he made on the docket of judgments in the Fulton county clerk’s office, as if they had procured a judgment for $8,000 against the city of Johnstown on the day the said order was entered in the Fulton county clerk’s office. Thereafter, and hy a petition dated October 7, 1897, the city of Johnstown, claiming that the statutory requirements to condemn land for street purposes had not been complied with, made an application to a special term of this court to he relieved from the order of the court in such proceedings, and for the setting aside of such final order, and that it might he permitted to abandon its proceedings to acquire title to the real estate of the defendants; and such special term on the 15th day of November, 1897, made an order granting the prayer of the petitioner, relieving it from the order made on the 18th day of January, 1897, and entered in the clerk’s office on the 27th day of January, 1897, and directed the county clerk of Fulton county 1o cancel the-docket of said judgment against the city of Johnstown in favor of Mortimer Wade, Emma Taylor, and Alida Q-. Wells, made on the 10th day of August,' 1897, in which it was made to appear that such persons had recovered a judgment against the city of Johnstown for $8,000; directing, however, that the city of Johnstown pay to the attorney for the defendants the sum of $50, as his costs of the proceedings. From such order the defendants Wade, Taylor, and Wells appeal to this court.
    • Argued before PARKER, P, J., and LANBON, HERRICK, MEK-WIN, and PUTNAM, JJ.
    J. Keck, for appellants.
    Andrew J. Nellis, for respondent.
   HERRICK, J.

The order appealed from was made upon the ground that where it is necessary, in order to open a street, that there should be' a petition of the property owners fronting upon such street, and that petition requests the opening of the street to a given point, and the city authorities proceed to open it for a shorter distance than is prayed for by the petitioners, their' proceeding is not in accordance with the petition, and is therefore illegal. I agree that suen proposition is correct. The question for us to determine is whether it is applicable to the facts in this case. Section 72 of chapter 868 of the Laws of 1895 (being the charter of the city of Johnstown) provides as follows:

“No expenditures for any local improvement in said city, the expense of which is to he defrayed wholly or partly by local assessment, shall be incurred, unless the common council shall first by resolution declare its intention to make such local improvement. The common council may, by resolution, declare its intention to construct or repair sewers, gutters and sidewalks, or to grade, fill, excavate, gravel or sprinkle streets, without preliminary petition therefor or consent, thereto. The common council shall not declare its intention to make any other local improvement, the expense of which is to-be borne - wholly or partially bj local assessment, unless the owners of at least one-half of the total number of front feet linear measurement, or at least one-half in number of the owners of property on the street upon which the proposed improvement is to be made, petition therefor or consent thereto in writing, and a certificate of the city engineer he indorsed thereon or attached thereto, to the effect that he has examined such petition or consent, and that such required number of property owners have signed the same, which certificate shall be prima facie evidence of the facts therein contained.”

Section 81 of the same chapter provides as follows:

“Whenever the common council shall intend to lay out, alter, widen, extend,, contract or discontinue any street, lane, alley, highway or public grounds in said, city, and the lands of any person or corporation, or any right or easement therein, will be necessary for that purpose; and whenever the common council shall intend to acquire lands, rights or easements therein for any other purpose mentioned in-this act, they shall cause the same to be surveyed and monuments-placed showing the line thereof, and a map to be made of the same.”

It further provides that the common council, after making and filing the map containing the description of the property to be taken, shall declare by resolution their intention to take and appropriate said property for the proposed improvement, and thereafter they may purchase such land deemed necessary, of the owners thereof, and, upon their failure to agree upon the price, that they may acquire the same by condemnation, under the provisions of the condemnation law of the state (chapter 23 of the Code of Civil Procedure).

It will thus be seen that the statute provides first for the declaration of the common council of its intention to make such local improvement, and that, whenever it is necessary to acquire lands for the purpose of making such improvement, they shall make and file-maps of the lands necessary to be taken, and monument the same, and shall then declare by resolution their intention to take and appropriate the said property for the proposed improvement. As we-have seen from the statement of facts, after the presentation of the-petition to extend South Market street to the south boundaries of the city the common council, on the 25th day of May, 1896, passed a resolution in which they declare their intention “to extend South Market street from its present southerly terminus, in West Montgomery street, south to the corporate limits of said city.” That declaration of intention was as broad as the request of the petitioners. This-declaration of intention constituted the formal opening or extension of the street. All subsequent. proceedings provided for are simply for the purpose of carrying that intention into effect, and to practically and physically open or extend such street. The next step to be taken under the charter was to map and monument the proposed" line of the street. That appears to have been done. The next proceeding in order would be a declaration of their intention to take-the lands necessary for the purpose of opening the street. Now, it seems to me that it must be apparent that this requirement of the statute authorizes them to take only such land as is necessary, and that if the city already owns any land upon the line of such proposed street, or if any has been given to it, there would be no necessity to condemn such land, or if, between Montgomery street and the south bounds of the city, any portion of South Market street, as they proposed to extend it, was already opened and occupied as a street, whose lines were in conformity with the proposed extension and with the rest of the street, that then it would be only necessary to take and condemn the intermediate lands. Upon the application to the court for a judgment condemning the lands of Wade, the city of’ Johnstown set out in its petition the following statement:

“The public use for which the said property is required is the extension of South Market street, in the city of Johnstown, south from West Montgomery street, over the said lands, and over lands of the said James Younglove, of Isaac Gustin, and of James Heagle, to First avenue, in said city. South Market street, in the said city of Johnstown, is a street running from the northerly limits of said city to the lands aforesaid of the said Mortimer Wade, and commencing again at First avenue, .and proceeding thence southerly to the southerly limits of said city. The said Isaac Gustin, James Younglove; and James Heagle have consented to convey lands belonging to them to the city of Johnstown, for the purpose of said extension, so that by the acquisition of the lands herein-above described, of the said Mortimer Wade, the said city will be enabled to extend the said street from its northerly limits to its. southerly liiqits as aforesaid.”

And this statement is in no wise contradicted upon this application; and it would appear, therefore, from such statement, that the only lands necessary for the city to acquire for the purpose of carrying-out its declared intention of opening youth Market street from West Montgomery street to the south lines of the city were the lands of the defendant Wade. As we have seen, the only power to condemn conferred upon the common council is to condemn such lands as are necessary to open and lay out the proposed street. Therefore they could condemn no more than Wade’s land. The resolution of May 25, 1895, was the resolution to extend the street. The resolutions of July 20 and December 7, 1896, were not resolutions for extending or opening the street, but were resolutions stating the lands necessary to be taken to open and extend the street, and providing for their taking. It was only necessary for them to take land to First avenue. When that was doné the street would then be opened to the south bounds of the-city, as the'petition and the resolutions of May 25th required. So that these resolutions were not in conflict, but in harmony, with each other; the latter ones being adopted for the purpose of carrying into effect the resolutions of May 25th. Section 81 provides that, when it is necessary to condemn lands for street openings or extensions, the condemnation proceedings shall be taken under the provisions of chapter 23 of the Code of Civil Procedure. Section 3360 of the Code sets forth what is necessary to be alleged in a petition for condemning land. The petition presented in this case sets forth all the facts necessary to give the court jurisdiction. There is no right to condemn more than is necessary for the public purpose in question. The petition sets forth the lands it was necessary to acquire for the purpose of extending the street to the south bounds of the city. The law requires that the petitioner should set forth his inability to agree with the owners of the land upon its purchase. The petition herein sets forth that all the owners of the land necessary to be acquired had consented to convey to the city, except Wade. It was not necessary, therefore, to condemn the lands of any one except Wade. The fact, if it be a fact, that such other owners have since receded from their agreement to convey to the city, makes no difference as to the regularity of the proceedings against Wade. Neither do the proceedings against Wade alone present any legal objection to any subsequent separate proceedings against the lands of the owners whose property it is necessary to have to complete the opening. While it is more convenient and less expensive to include all the lands and owners in one proceeding, it. is not necessary. Separate applications may be made to the court as to each. The question has usually arisen, not as to whether separate proceedings can be taken, but as to whether all the lands to be condemned must not be so condemned in one proceeding. Railroad Co. v. Nagel, 75 Hun, 590, 27 N. Y. Supp. 669, affirmed in 150 N. Y. 562, 44 N. E. 1121.

There is another objection to vacating the order and judgment of condemnation: The proceedings, as we have seen, are governed by the provisions of the Code of Civil Procedure. Section 3374 of the Code provides that ah application for leave to abandon the proceedings, and to vacate any order granted, must be made before the expiration of 30 days after the entry of the final order. The order herein, as we have seen, was entered January 27, 1897, and the judgment thereon was docketed August 10, 1897; and the petition for leave to abandon the proceedings, and for an order setting aside such final order, was not made until October 7, 1897, much more than 30 days after the entry of the final order. The fact that the city failed in its subsequent proceedings to secure orders of condemnation against the lands of those persons who at first agreed, as appear from the petition, to convey to the city, can make no difference here. We must act upon the record before us in the proceeding against the land of Wade, and such proceeding seems to have been regular.

For all these reasons the order appealed from should he reversed, with $10 costs and disbursements, and the application of the city denied, with $10 costs. All concur.  