
    Metropolitan El. R. Co. v. Dominick. Same v. Douglass. New York El. R. Co. v. Baldwin.
    
      (Supreme Court, General Term, First Department.
    
    December 2, 1889.)
    1. Eminent Domain—Condemnation after Taking.
    Under Laws N. Y. 1850, c. 140, §§ 14, 21, relating to condemnation proceedings, a railroad company may maintain a petition for the condemnation of a right of way, though its road has been already constructed, and though the past use of the easement, without compensation, constituted a continuing trespass.
    2. Same—Petition.
    A petition by a railroad company for the condemnation of land alleged that under acts of the legislature, and the determination of commissioners pursuant to certain statutes, a particular route was designated and established for petitioner, and that it had “constructed, maintained, and operated a railway which it was so authorized to construct, ” etc. Held, that it was a question of fact, to be determined on all the evidence, whether there has been a compliance with Laws N. Y. 1850, c. 140, § 14, which requires such petitioner to state that “it is the intention of the company in good faith to construct and finish a railroad from and to the places named for that purpose in its articles of association. ”
    3. Same—Description of Property.
    A petition by an elevated railroad company for the condemnation of a right of way does not sufficiently describe the property sought to be acquired by alleging that, for the purposes of petitioner’s incorporation, there “is required so much of the property, easements, or other interests in the streets aforesaid, hereafter described, as has been taken, ” and specifically described as so much of the property, easements, or other interests in the streets “as has been taken by reason of the construction and maintenance of the elevated railway of the petitioner, as the same is now constructed and maintained, with two rows of columns in said street, and a superstructure carrying tracks upon transverse girders spanning the street, and as has been and may be required by reason of the operation of said railway * * * according to the statutes, conditions, and requirements aforesaid. ”
    4. Same—Inability to Purchase.
    Under section 13 of the statute, which provides that a railroad company may apply for the condemnation of the required property where “it is unable to agree for the purchase ” thereof, a petition is insufficient which alleges, on information and belief, that petitioner is unable to agree for the purchase of the property by reason of the owners’ demand of unreasonable compensation.
    
      Appeal from special term, New York county.
    Proceedings by the Metropolitan Elevated Railway Company for the condemnation of the property of Francis J. Dominick and William P. Douglass, respectively, and of the New York Elevated Railway Company for the condemnation of the property of Susan A. Baldwin. From the orders of the special term overruling certain preliminary objections to the companies’ petitions, and denying the motions to dismiss such proceedings, the property owners now appeal.
    Argued before Van Brunt, P. J., and Bartlett and Barrett, JJ.
    
      E. C. Perkins, for F. J. Dominick. E. B. Whitney, for S. A. Baldwin. Jay & Candler, for W. P. Douglass. Julien T. Davies, for respondents.
   Barrett, J.

There are but two objections to the petitions which should be considered upon these appeals. The first is that they do not sufficiently describe the property sought to be acquired; the second, that the reason of the petitioner’s inability to acquire title has not been sufficiently stated. The-other objections wére properly overruled. They were either untenable or doubtful. Among the untenable objections was that which went to the root of tlie proceeding, and denied the petitioner’s right in toto. My views upon that head have already been expressed at special term in an unreported opinion, and I adhere to those views. Under the act of 1850, (chapter 140, §§ 14, 21,) as amended by chapter 649 of the Laws of 1881, there can be no doubt of the petitioner’s general right to proceed in the present way, notwithstanding the fact that the road has been constructed, and that the past use of these easements, without compensation, may be deemed a continuing trespass. -This was the clear intimation given in Henderson v. Railroad Co., 78 N. Y. 423; and it harmonizes with the views expressed in Re Railroad Co., 67 N. Y. 371. See, also, Ford v. Railroad Co., 14 Wis. 609. Among the doubtful objections is that which rests upon the provision of the statute requiring railroad corporations, in their petition for the condemnation of real estate, to state that “it is the intention of the company, in good faith, to construct and finish a railroad from and to the places named for that purpose in its articles of association.” Section 14. We think this statement, oritsequivalent, was essential. It is one of the facts which the property owner may controvert and disprove. As the question is one of the companies’ intent, the burden of proof is upon them. In re Railroad Co., 66 N. Y. 407. The petitions do not state this fact. They do state, however, what are claimed to be equivalent facts, namely, that under acts of the legislature, and the determination of commissioners duly appointed pursuant to certain statutes, particular routes were designated and established for these companies, and that each of said companies lias “constructed, maintained, and operated a railway, whicli it was so authorized to construe!;, maintain, and operate.” Of course, if the companies have completed the railways which they offered and were authorized to construct, they cannot be required to express, under the solemnity of an oath, an intention to do what has already been done. If, however, they have not completed the railways “from and to the places named in their articles of association, ” or from and to the places mapped out for them by legislation, or by the' action of duly-authorized commissioners, they should be required to comply with the statute, and state, under oath, their intention in good faith to so complete. The doubt here is as to the form of the averment, read in connection with the other facts. It is such a doubt as should not be solved upon a mere preliminary objection. Counsel declare that the intention was to aver completion of the entire road which each company was authorized to construct, and the averments are perhaps sufficient to comprehend that purpose. This raises a questioh of fact which must depend upon the proofs; for the court cannot take judicial notice of the reports of commissioners, or of actual construction thereunder. See Porter v. Waring,69 N. Y. 250. The question should therefore be reserved until the proofs on the subject are all in, when it can be disposed of, properly and advisedly, as a question of fact.

The two objections, however, which I premised by stating, were well founded. The description of the property sought to be acquired was insufficient. In this particular extreme accuracy is required, (In re Railroad Co., 70 N. Y. 191,) and there must be no uncertainty in the description of the property to be taken, nor in the degree of interest to be acquired. In re Water Com'rs, 96 N. Y. 361. What it is understood that the companies here desire to condemn is the property owner’s easement of light, air, and access appurtenant to his property. But it is impossible to say what specific rights are claimed under these petitions, or what burdens are to be compensated for. After stating that, for the purposes of its incorporation, etc., there “is required so much of the property, easements, or other interests in the streets aforesaid, hereafter described, as has been taken,” etc., the petition proceeds to specify what is sought. It states this in a series of subdivisions, of which the following is a sample: “So much of the property, easements, or other interests in said street, and intersecting streets, appurtenant to, or part of, or constituting the street in front or along-side of the lots and premises in this subdivison hereinafter described, respectively, as has been taken by reason of the construction and maintenance of the elevated railway of the petitioner, as the same is now constructed and maintained, with two rows of columns in said street, and a superstructure carrying tracks upon transverse girders spanning the street, and as has been and may be required by reason of the operation of said railway with cars and trains of cars thereon, necessary for the transaction of the business of the petitioner according to the statutes, conditions, and requirements aforesaid.”

How can the commissioners tell what “may be required” in the future? and how can any one estimate the proper compensation to-be awarded therefor? The learned counsel for the companies makes an ingenious answer to this objection, but its very subtlety shows that the requisite clearness and precision are wanting. He would have us qualify the expression “maybe required” by the preceding words “as has been taken,” and thus make the paragraph read: “So much of the property which may be required as has been taken.” This will not do. It is a strained and unnatural reading of the sentence. The property owner’s rights should not be left even to doubtful, though plausible, construction. If, by and by, an additional burden were ¡sought to be imposed, a very much stronger argument than the present could be made in favor of the claim that it was covered by the expression in question. Apart from this, we think the description is loose and indefinite as to what has been taken, and as to the precise burden to be permanently imposed. The description of the structure is in the most general terms, and the easements are not specifically defined. The petitioners should have pointed out to each owner the surrounding conditions, and thus indicated how he is to be affected. Thus, and thus alone, can the petitioners practically set forth what they desire to take and secure. The court can then determine whether they have a right to take the property sought for the purposes set forth, and, if they have, to indicate clearly to the commissioners the scope of the easement, .and the precise subject upon which their judgment is to operate.

The second objection is made to the following paragraph of the petition: “Upon information and belief that your petitioner has not been able to acquire title to the real estate so taken as aforesaid, and is unable to agree for the purchase thereof with the persons who own or have, or claim to own or have, estates or interests in the said real estate, and the reason of such inability is that they will not sell the same to your petitioner for a reasonable compensation.” The difficulty here is that no reason is stated as matter of fact. The companies say, in substance, that they have been informed by some and believe that the property owners will not sell for a reasonable compensation. By section 13 of the act (Laws N. Y. 1850, c. 140, § 13) it is provided that the company may apply in case “it is unable to agree for the purchase” of the required property. But the company cannot say that it is unable to agree with the property owner until it has tried to do so. The purpose of the statute would be frustrated, if the company were permitted testate its conclusions or its beliefs upon mere hearsay. The statement of the reason is essential to jurisdiction. In re Marsh, 71 N. Y. 315. What is-meant by the word “reason” is the ground of the inability to purchase, and that ground must be the statement of some issuable fact. How do the companies know, upon what information do they believe, that the property owners-will not sell for a reasonable compensation? Ho fact is stated which justifies any such opinion or conclusion; and to say that a person will not do a. thing is to state nothing but a conclusion. To say that he has refused to do-a thing is to state a fact. By this form of averment, the plain provisions of the statute have been disregarded. If such a course were to pass unchallenged and uncondemned, railroad companies need never try to, agree with the property owner, and yet an honest endeavor, in good faith, to so agree, is a prerequisite to their seeking the aid of the court.

It follows that these objections must be sustained. As, however, the petitioners may possibly be able to supply the necessary averments upon the-head last discussed, and may also be able to cure the defects of description, they should have leave, if so advised, to apply at special term, upon proper papers, for an amendment of the present petitions and proceedings; and if such amendment be granted the present proceedings may stand and be continued.

The orders appealed from should be reversed, with $10 costs in each case, and the usual disbursements, and the motions to dismiss the proceedings-granted, without prejudice to the institution of fresh proceedings, and also-without prejudice to the application to amend hereby permitted, if the petitioners are so advised. All concur.

NOTE BY THE EDITOR.

The unreported opinion referred to was filed April 13,1858, and is as follows: “ (1)-The petitioner may maintain a proceeding of this character notwithstanding the construction of the road. If the easement is necessary for the maintenance or operation of the road, it can be condemned under the statute. (3) The suit in the superior court-is not a bar to this proceeding. The Court there simply found that the owner’s interest had been depreciated in a given sum, and that an injunction should run against the-companies unless they chose to pay such sum. The companies are not bound to accept this condition. They may, if they choose, proceed under the statute. Such is the effect of the language used by Danforth, J., in Henderson v. Railroad Co., 78 N. Y. 438. Whether, in view of the express finding of fact as to the quantum of depreciation, that-matter is in res adjudieata may be questionable. The contention against that theory is that the finding was not the subject of a judgment, and consequently was not binding upon the parties. The judgment was for damages for the wrong done, and an injunction against it continues. True, the court said that the injunction should not go-into operation, provided the defendant chose to pay, in addition to the fixed damages, 89,000 for the general depreciation. But there is no judgment for this latter sum, and the finding of fact on that head was solely for the purpose of providing a definite basis-for the condition. At all events, this finding is not conclusive upon the right to proceed under the statute. Whether it is conclusive upon the commissioners may well be left for determination when the question properly arises before them. It follows that-, the application should be granted. ” 
      
      See note at end of opinion.
     