
    In the Matter of the Application of The Niagara Falls & Whirlpool Railway Company to acquire Lands, etc.
    
    
      (Court of Appeals,
    
      Filed May 9, 1890.)
    
    Eminent domain—Railroads—Jurisdiction—Consent to appointment oe commissioners, no waiver op objection to.
    The owner of certain premises, in June, 1886, resisted the right of peti tioner to institute proceedings for taking her land by eminent domain, but after the special term had decided against her, she agreed with petitioner in the selection of commissioners to appraise the land, and they reported. After her time to appeal from the order appointing the commissioners had expired, the court of appeals, in a similar case, decided in favor of her contention, and on her application the court, at special term, vacated the order appointing the commissioners, and all the proceedings under it. Held, that the fact that the corporation had no power to file the petition, constituted a radical jurisdictional defect in the proceedings which justified the order to vacate and that her agreeing as to the commissioners to he selected, was no waiver of her rights.
    Appeal from order of the supreme court, general term, fifth department, affirming order of special term.
    
      Norris Morey, for app’lt; A. K. Potter, for resp’t.
    
      
       Affirming 20 N. Y. State Rep., 983.
    
   O’Brien, J.

This proceeding was instituted by the Miagara Falls & Whirlpool Railway Company to acquire title under the statute to certain real estate of which Jane S. Townsend was the owner or personally interested therein. 1

The petition for this purpose was presented to the special term of the supreme court on the 20th of May, 1886, service thereof having been made upon the owner of the land.

The application was resisted mainly upon the ground that the petitioning corporation was not incorporated for a public purpose, but to carry on a private business or enterprise, and was therefore incapable of exercising the right of eminent domain. The issues formed by the allegations of the petition and the answer of the owner were tried by the court in June, 1886, and it was held that the taking of the lands described in the petition for the construction and operation of the' proposed railway was a taking for a jrublic use, and that the petitioner was entitled to an order of the court for the appointment of commissioners as prayed for in the petition. Thereupon an order was entered reciting the proceedings had, stating that the issues had been tried and decided in favor of the petitioner, also that the parties consented in writing to the selection of three commissioners, naming them,-to ascertain and appraise the compensation to be made to the owner, or to the persons interested in the lands described in the petition.

The right of the petitioner to institute and maintain the proceedings was resisted, as thus appears, by the owner, but after the special term decided against her she agreed with the petitioner in the selection of commissioners to appraise the land. After various hearings the commissioners made their report in February, 1888, fixing the value of the land at. $7,500. Both parties appeared before the commissioners by counsel and litigated the question of value, and no appeal was taken from the order of the special term appointing the commissioners.

In December, 1886, like proceedings were instituted by the railway company to acquire title to certain lands owned by De Yeaux College, and the proceedings were resisted upon the same grounds as in the present case, and with the same result at special term. The general term, however, reversed the order upon the ground that the notice required by the statute had not been given to all the parties over whose lands the proposed road was to pass, and therefore the special term was without jurisdiction. Upon an appeal to this court by the corporation from the order of the gen - ■ eral term in the proceedings to take the lands of De Yeaux College, it was held that the railway company was a mere private enterprise and that the lands sought to be acquired under the proceedings were not for any public use. Matter of the Niagara Falls & Whirlpool R’way Co., 108 N. Y., 375 ; 13 N. Y. State Rep., 690.

As the time within which the owner of the lands in the present case could appeal from order appointing commissioners had probably expired, there was no way in which she could procure the benefit of the decision of the court in favor of her contention, made in another case, except by a motion to vacate and set aside the order appointing the commissioners, and all their proceedings. This motion was made upon the original papers, and an affidavit, showing the proceedings had under the order,and a copy of the opinion of this court in the proceedings, to take the land of De Yeaux College. The supreme court at special term granted the application to vacate the order and all the proceedings under it, and this decision has been affirmed at the general term.

This appeal presents no question now except the right of the owner of the property to attack the order appointing commissioners, and the proceedings thereunder, by a motion to set the same aside instead of appealing therefrom. It is contended in behalf of the petitioner that, inasmuch as no appeal was taken from the order, it cannot be attacked by motion or in any collateral proceeding. At the time the court at special term was asked to vacate the proceedings it had been adjudged that the petitioner had no power to acquire land by condemnation proceedings, or to exercise the right of eminent domain.

It followed from this that the corporation had no power to file the petition or to institute the proceedings, and the court had no power to entertain the same. This constituted a radical jurisdictional defect in the proceedings, which could properly be presented ■to the court by motion to vacate and set aside the entire proceedings on the ground that they were unauthorized by law. It is true the special term had already decided that the use for which the corporation acquired the land was public, within the meaning of the constitution, and therefore that it had power to entertain the proceedings and appoint the commissioners. But this, we think, was no answer to the application to vacate after the legal question had been settled otherwise. There does not seem to be any good objection, upon principle, to this practice, and it is sanctioned by authority. Matter of the City of Buffalo, 78 N. Y., 362; Matter of Department of Public Parks, 85 id., 459; Kamp v. Kamp, 59 id., 212.

The fact that the land owner, after being defeated in her contention at the special term, agreed with the petitioner as to the particular commissioners to be selected, was not, we think, a waiver of any right that she had to appeal from the order appointing them, or to move to set it aside, as having been made without authority.

The order appealed from should be affirmed, with costs.

All concur.  