
    In the Matter of the Application of the Niagara, Lockport and Ontario Power Company, Respondent, Relative to Acquiring Title to Certain Real Estate for the Purpose of Constructing, Maintaining and Operating an Electric Transmission Line Thereon for Public Use, to Furnish Electricity for Light, Heat, Power or Any Other Purpose, to Certain Cities, Villages and Towns of This State, and the Inhabitants, Railroad Companies, Corporations and Manufacturing Establishments Thereof, of Which Rosalia Flaka, Also Known as Rosalie Flarke, Appellant, and Anthony Flarke Are the Owners or Persons Interested Therein.
    Fourth Department,
    March 7, 1906.
    Eminent" domain —• when immediate possession of condemned lands ordered under section 3380 of the Code of Civil Procedure on payment of money — said section constitutional — failure of owner of lands to , state value thereof — what constitutes public purpos'e,
    Immediate possession of condemned lands will be awarded under section 3380 of the Code of Civil Procedure if public interests will be prej udiced by delay, upon the petitioner pacing the proper value of the lands into court, even ■ though the answer of the respondent in the proceedings to condemn lands fails to state the value of the lands as contemplated by said section.
    Said section is to be construed in the light of its purpose, which is to enforce an immediate possession of lands condemned" when public interest will he prejudiced by delay, and the contestant, in such proceedings by refusing to set a value on the lands, by answer or otherwise, cannot be permitted to defeat the object of the statute.
    A deposit of the fair value of the land, as shown by the petitioner by affidavits, founded on its assessed value, is sufficient when the contestant at the request of the court refuses to set a value.
    Sectiou -3380 of the Code of Civil Procedure does not violate section 6 of article 1 of the State Constitution by authorizing the tilting of lands without due compensation. The section is intended to insure to the owner the payment of the value.
    The Niagara, Lookport and Ontario Power; Company, incorporated to furnish electric power and- water to towns, villages and cities and to the people of the State, is organized for a public purpose.
    When the plant of the said company is partly constructed, and the company is under- contract to receive large quantities of electric power from other companies which are ready to deliver, a.nd is also under contract to deliver certain ‘power, and when the transmission of the power in other ways than those contemplated would be dangerous and impracticable, ‘‘the public interests will be prejudiced by delay” within the meaning of said section 3380 of the Code of Civil Procedure. . - -
    
      Appeal by Rosalie Flarke from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara on the 1st day of November, 1905, permitting the plaintiff to enter immediately upon the real property described in the petition herein.
    The plaintiff is an electric transportation corporation duly organized pursuant to the laws of the State of New York, and is engaged in constructing a line for the transmission of- electricity from the city of Buffalo east war dly to the central part of the State. Maps of the route have been tiled, surveys made, nearly all the land necessary for the right of way, and which comprises a strip 200 feet in width, has been acquired in the counties of Erie, Niagara, Orleans and Monroe, and much of the actual work of construction has been performed.
    The appellant, Rosalie Flarke, owns land in the town of Lock-port, in the county of Niagara, one and three-fourths acres of which the plaintiff is-seeking to. acquire. Proceedings were coim menced by plaintiff for the condemnation of the land mentioned in August last. An answer was interposed by the appellant denying nearly all the allegations of the petition, also containing affirmative defenses; and the issues were, in the latter part of^ September, referred to a referee, and the proceeding is still undetermined.
    . Early in October the present proceeding was commenced and an order granted at Special Term permitting the plaintiff to enter immediately upon the premises of the defendant described in the petition upon depositing with the court the sum of $500, to be applied toward the payment of any award which may be made to her, including the costs and expenses of the proceeding. The money has been deposited in pursuance of the order. Other facts appear in the opinion.
    
      George F. Thompson, for the appellant.
    
      Robert F. Drake and John H. Leggett, for the respondent.
   Spring, J.:

The petition alleges that the value of the property to be condemned is three hundred and fifty-five dollars and eighty cents, and the affidavit of Mr. Scoby states that the land is assessed at thirty dollars an acre, and is worth not to exceed seventy-five dollars an acre. The answer-of the'defendant -specifically denies the estimate placed upon the property by the plaintiff, but does not contain any statement of its value. The appellant’s contention is that the court consequently had no jurisdiction to designate or to ascertain á sum upon, the payment of which temporary possession would be accorded it of the defendant’s property. . ' •

The original proceeding is the usual one to acquire property for a public use where the plaintiff is unable to agree with the owner for its purchase, and seeks to have the compensation ascertained by commissioners as prescribed in section 3360 of the Code of Civil Procedure. The answer raised issues to be tried. There are two provisions of the Code of Civil Procedure pertaining to the possession of property by a Condemning plaintiff, and which were .incorporated in the Code of Civil Procedure by chapter 95 of the Laws of 1890. Section 33L9 (as .ámd. by Laws of 1900, chap. WL). applies .where the plaintiff is already in possession- of 'the property sought to be'condemned. Section 3380, which governs in the present instance, is applicable where the plaintiff 'is not in possession, but an answer has been interposed, “ and it appears to the satisfaction of the court, that the public interests will be.prejudiced by delay;” thereupon the plaintiff may be given the immediate possession of the property to be taken, -and permitted to devote it temporarily to the public use specified in the petition, “upon depositing with the court the. sum stated in the answer as the value of the property.” Subsequent provisions of the same section relate to the application of the money upon the termination of, the proceeding, the payment of costs, etc., providing also for-a judgment for deficiency- if the sum deposited is inadequate to meet the award. - - -

The position of the defendant is that inasmuch as the object of this section is to enable a corporation Dr person, for the use of the public, to deprive the owner temporarily, but.against his will, of his own property, it must recéive a strict, construction-; - and as the answer omitted to contain any statement of the value of the property, the order is erroneous. We think this interpretation of the section is too narrow. The interposition of an answer often results in delaying for some time the termination of the proceeding to condemn. The owner of land who is endeavoring to obtain an exorbitant sum from the plaintiff for his premises may interpose an. answer and block the prosecution of the work in the face of the paramount necessity for its accomplishment. To guard against this unfair obstruction of the work, the Legislature came to the rescue by the enactment of the two sections mentioned. They are similar in the object to be attained and in the manner of accomplishment, except where the plaintiff is in possession, security in lieu of the payment of money may be directed by the court upon granting the order for the continuance of possession.

By section 3380, as well as by the preceding section, the Legislature had two cardinal purposes in view. First. Where the prosecution of the work, contemplated by its charter was demanded by the public interests and prejudicial delay was likely to ensue from the interposition of an answer, a remedy was afforded the ‘plaintiff to acquire immediate possession pending the proceeding. Second. The rights of the owner were sufficiently protected'by the payment of the sum which he claimed under oath was the fair value of the property of which he was to bo deprived. The mode of procedure prescribed is, consequently, beneficial to both parties. The right of the company to condemn being established, and the prejudice to public interests .by delay appearing,' the court will make the order, which, on the one hand, will enable the work to be carried on, and, on the other, will insure compensation to the owner for the property taken.

' The reason for taking the value specified in the answer as the sum to be. paid is to insure the defendant the full worth of his premises beyond a peradveiiture. If he intentionally or otherwise fails to state any value at all, the court is not thereby prevented from granting the relief where “ the public interests, will' be prejudiced by delay.” In construing the section' we must keep in mind that the basic ground for the relief is the needs of the public. .If the deposit made is entirely adequate the defendant is fully safeguarded, and that is precisely what the statute intendéd. It is of little importance how the sum to be paid is arrived at if the object designed is attained and the defendant,is assured the full sum which may eventually be awarded him.' <

The counsel for the appellant admitted upon the oral argument of this appeal that the justice at Special Term endeavored to ascertain from him what he regarded-as adequate compensation to his client. But the counsel declined to make any estimate, preferring to rest Ms opposition upon the proposition that the- failure to state any value in the answer barred the court from granting relief -to- the plaintiff. So'upon the argument of the appeal counsel declined, upon invitation of the presiding justice, to inform the court whether he complained that the sum deposited was insufficient,, reiterating the reason for his refusal. He. also admitted that there had been no attempt on the part of the plaintiff to delay or-obstruct the pending condemnation proceeding. We must assume,, consequently, the concrete controlling fact that the sum depositedis.ample to pay the defendant ány award which will be made to her and protect her in every .respect. The aim of the statute has,-therefore, been accomplished..

Section 3365 of tl^e Code, of Civil Procedure does not require the defendant in pohdemnation proceedings to state, the value of- the property in his answer. It is not conceivable that the legislature in the light of this fact would leave a loophole so that .a contentious owner at any time might render nugatory the relief provided for in section 338U by simply omitting to . allege the value of ■ the property sought to be taken.

Section 3382 of the Code of Civil Procedure is in point in so far as it denotes the purpose of the Legislature to invest the courts with general authority to make 'effectual “ the object and intent’’ of the' Condemnation Law. If the answer does- not state the valiieof the property the manner of conducting * * * the. proceedings therein is not expressly provided for by law.” (§ 3382.) The only specific authority to' compel the owner to give up temporary possession of his property is founded upon the allegation of. value in the answer. But the intent of the Legislature was to permit the plaintiff to obtain possession upon the payment of-a sufficient sum to compensate the owner fully; and' if the conduct, of the defendant, whether in good faith, inadvertently or maliciously, renders a strict compliance with section 3380 impossible, the general authority conferred upon the court by section. 3382 is sufficiently comprehensive to enable the obvious, purpose to be accomplished. As was.said in People ex rel. Wood v. Lacombe (99 N. Y. 43, 49): In the interpretation of "statutes, the great, principle which is to; control is the intention, of the Legislature in passing the. same,, which intention is to bé1 ascertained from the cause or' necessity of making the statute as well- as other circumstances.”

While the Condemnation Law by chapter 95 of the Laws of 1890, was made a part of the Code of Civil Procedure, yet section 3380 of that Code in its present form is a new provision. The right, however, to obtain temporary possession of the owner’s land by a railroad comjiany upon the' payment into court of a sufficient sum, where pending the proceeding for condemnation it developed that the title of the defendant was defective, had been operative for some time. (Laws of 1850, chap. 140, § 21, as amd. by Laws of 1869,. chap. 237; Laws of 1877, chap. 224, and Laws of 1881, chap. 649. See also Laws of 1875, chap. 606, § 24.) The pith of that statute composes section 3380 of the Code of Civil Procedure. The Legislature, in re-enacting the substance of the law, did not intend to vest an obstructing owner with full power to render its operation ineffective. He cannot prevent the adoption of that part of the statute which inures to the benefit of the public by refusing to avail himself of that portion which is beneficial to him.

Nor is section 3380 of the Code of Civil Procedure violative of section 6 of article 1 of the State Constitution. The property of the defendant is not taken from her without compensation. The essence of the section permitting possession to be acquired is that the owner must be assured the payment of the full value of the land of which he is deprived. It has long been held that payment to the owner personally is not an essential prerequisite to the taking of the land by right of eminent domain providing only compensation is made certain. (Bloodgood v. Mohawk & H. R. R. Co., 18 Wend. 9.)

The plaintiff was created pursuant to chapter 722 of the Laws-of 1894. Its sphere of operation was originally confined to the counties of Erie, Niagara and Orleans, but since its incorporation its certificate has been amended, whereby it is claimed the range of its territory and the scope of its business have been enlarged. Its purposes, as disclosed in section 8 of the act mentioned; are the supplying of' pure and wholesome water and electricity to the towns, villages and cities along its route, -and the generation, accumulation, transmission and distribution of eleetricity’for a large number of objects enumerated in said section. It is- given authority to take water from Niagara river (§ 10); to use the streets and highways and lay pipes therein (§ 11); to acquire land by purchase or condemnation proceedings (§§ 12, 13).. Its power is coincident with that of other corporations organized for the profit of the incorporators, but designed also for the benefit of the .public. j . "

The plaintiff has already entered into a contract for the construction of a canal, which is in process of building, and which when completed will be of sufficient capacity to generate 200,000 hofse power. It has entered into an agreement with a Canadian power company whereby it is to receive a large quantity of ■ electric power, a considerable portion of which is ready for delivery. It has also entered into an agreement with a construction company for the delivery of'power to be used in the operation of certain street surface railroads, which are named in the moving papers, and. .the affidavits show that it is important that this power be delivered early during the present year. The contract calls for the delivery of. this power at an early date, and the plaintiff, is actively prosecuting the building of its .line. The transmission of the electricity is at high voltage and along wires nine-tenths of an inch in diameter, which are supported, by steel .towers fifty feet in height. To transmit the electricity of the'extraordinary high voltage of from 10,000 to, 60,000 volts in wires along the streets or highways would be dangerous and impracticable. ;

" The extent of the business contemplated, including as it does the furnishing, of electricity for. the use of the inhabitants in1 a thickly' settled -and extensive territory,for illuminating purposes and for the use of extensive street surface railroads, we think constitutes a pub-lie use within the definition .of that comprehensive term. (Pocantico Water Works Co. v. Bird, 130 N. Y. 249, 258 et seq.; [Matter of Burns, 155 id. 23.) 1

The fact also sufficiently appears that “ the public interests will, be prejudiced by delay ” if the defendant is allowed to 'blbck the1 plaintiff in the fulfillment of the plan for which it was organized, and retard the furnishing of electricity or water to the inhabitants along its route, or in supplying electrical power for the operation of railroads and for other necessary purposes which may fairly be / for the benefit of the public.

The order should be affirmed.

All/conourred.

Order affirmed, with ten dollars costs and disbursements.  