
    In the Matter of the Rochester, Lackawanna & Hornellsville R. R. Co., Resp’t, to Acquire Lands of Charles H. Hartshorn et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    1. Eminent domain — Estoppel.
    Appellants granted to the railroad the right to enter on their lands and construct its road on giving bond to pay the damages to be awarded. The railroad gave the bond and constructed its road. Seld, that appellants were estopped from thereafter objecting that the lands so appropriated were not such as the railroad had a right to condemn for its use.
    3. Same — Waiver.
    When the land owner proceeds with the hearing without objection or answer he thereby waives his right to object,and cannot interpose an answer on an application for the appointment of new commissioners. Such application is not a proceeding de now, but a continuance of the principal proceeding.
    3. Same — Parties—Receiver.
    The appointment of a receiver of the petitioner does not change the status of the parties, and his addition as a party petitioner does not affect or prejudice the rights of either party.
    Appeal from several orders of the special term in proceedings for the condemnation of land under the general railroad act.
    
      D. L. Benton, for land owners, app’lts; Frank S. Smith, for Railroad Co., resp’t; De M. Page, for receiver, resp’t.
   Dwight, J.

Of the four appeals, the first is said to have been taken only pro forma; the second raises the question of the necessity or propriety of bringing in the receiver of the petitioner appointed since the proceedings were commenced as a party to the proceedings; the third is from an order denying the appellant’s motion for leave to file an answer, after an award and an order on appeal for a rehearing; and the fourth is from an order appointing commissioners for such rehearing. The third appeal presents the principal question in the case.

The facts are as folio vs: Charles Hartshorn, the husband of one and the father of the other of the present land owners, had entered into an agreement with the railroad company to sell to it a right of way, at a price agreed upon, over the lands in question, by the route which was finally adopted. After his death the appellants, who took title to the lands as his widow and heir at law, declined to carry out that agreement. Negotiations between the parties resulted in an arrangement by which the railroad company were to take immediate possession of the lands in question, and proceed with the construction of their road thereon, upon giving a bond to pay to said owners such damages as should be finally awarded to them, within twenty days from the date of the final order confirming the report of commissioners, in proceedings to be instituted for the condemnation of such lands. The bond was given and accepted. The grant or license was duly executed under the hands and seals of the appellants, granting to the petitioner the right to enter upon and take possession of such of the appellants’ lands “ as are included in and required for its right of way, and for the construction of its railroad, in accordance with its map on file; ” and the company entered into possession of the lands, and proceeded to construct its road thereon. The condemnation proceedings were commenced by the presentation of the petition herein, at special term, in November, 1887. As was contemplated by the agreement between the parties, the appellants duly appeared at such term and, without answering or objecting to the petition, consented to the appointment of commissioners to appraise their damages; the appellants themselves naming one of the commissioners thus appointed. They also appeared before the commissioners at the time fixed by the order and, without any objection to the proceedings on their part, made their proofs in respect to the value of the lands, which had already been appropriated by the petitioner to the purposes for which they were sought to be condemned.

The commissioners having made their award, the land owners opposed the confirmation of their report, and appealed to this court from the order of special term confirming the same. On such appeal that order was reversed and the report set aside; on the ground that the agreement of Charles Hartshorn, the ancestor of the appellants, was improperly received in evidence by the commissioners. See In re R., H. & L. R. R. Co., 50 Hun, 29; 18 N. Y. State Rep., 654. The order of the general term also directed a re-hearing of the petition, and a new appraisal by new commissioners, with costs of the appeal to be paid by the petitioner.

In pursuance of that order, the petitioner moved at special term for the appointment of new commissioners. The application was met by the objection on the part of the land owners that the receiver of the petitioner (appointed since the commencement of the proceedings) was a necessary party to further proceedings, and by an application, on the part of the land owners, for leave to file an answer to the petition. In response to the objection stated, an order was made bringing in the receiver as an additional party petitioner; leave to file an answer was denied, and new commis si oners were appointed.

We think there was no just ground for either of the appeals now before us.

First, the appellants are estopped to deny the right of the petitioner to condemn the lands in question. They had granted to the petitioner, in anticipation of proceedings to acquire the necessary title, and in consideration of the bond of the latter to pay the damages to be awarded in such proceedings, the right to enter upon those lands and construct their road. The lands referred to in the license, being those “ required for its right of way and for the construction of its railroad, in accordance with its map on file," were the same as those described in the petition. The petitioner had gone on under that license, had taken possession of the lands so described, and constructed its road thereupon at great expense. The appellants could not afterwards be heard to object that the lands so appropriated were not such as the petitioners had a right to condemn for the purposes for which they were appropriated and used under such license. It is not considered necessary to cite authorities for so clear an application of the principle of estoppel.

Second. The appellants had effectually waived all objections to the proceedings for condemnation taken by the petitioner. They interposed no answer to the petition and made no objection to the proceedings until after the award of the commissioners, to whose appointment they had consented. They exercised an undoubted right in appealing from the order continuing that award, and the order of this court, on such appeal, which, besides reversing the order appealed from, directed a new appraisal by new commissioners, determined the rights of the parties in that respect. The statute, Laws of 1850, chap. 140, § 15, provides that “ On presenting such petition to the supreme court as aforesaid, with proof of service * * * all persons whose estates or interests are to be affected by the proceedings may show cause against granting the prayer of the petition. * * * The court shall hear the allegations and proofs of the parties, and if no sufficient cause is shown against granting the prayer of the petitioner, it shall make an order" for the appointment of commissioners. And there are many authorities to the effect that after the appointment of commissioners, and especially after a hearing upon the merits, it is too late to object to the regularity of the proceedings and the petition. See Dychman v. The Mayor, 5 N. Y., 434; N. Y.& E. R. R. Co., v. Corey, 5 How. Pr., 177; In re R., H. & L. R. R. Co., 45 Hun, 126; 9 N. Y. State Rep., 560.

The second application to the special term was not a proceeding de nova, but a continuance of the original proceeding in pursuance of the order of the general term. The fact that a receiver of the petitioner had been appointed in the meantime did not change the status of the proceeding. It might still, no doubt, have been prosecuted by the receiver in the name of the original petitioner, and the addition of the receiver as a party petitioner did not prejudice or affect any right of either party. It did not make it necessary that a new petition should be filed, nor give to the appellants the right to file an .answer, which they had waived by proceeding under the original petition without objection.

We do not consider it necessary to consider the objections now sought to be raised to the petition. We may remark that they do not seem to us serious, even if taken by a party who had the right to raise them, and in time. It is enough, we think, for the purpose of this appeal that they were waived by the appellants.

The orders appealed from should be affirmed.

Orders appealed from affirmed, with ten dollars costs and disbursements in each case.

Barker, P. J., concurs.  