
    Matter of the Application of the Lake Shore & Michigan Southern Railroad Company for the Appointment of Commissioners to Ascertain the Compensation to be Made for Certain Lands, Etc., Claimed to be Owned by Ida Dickinson and Others.
    (Supreme Court, Erie Special Term,
    March, 1907.)
    Eminent domain — Condemnation proceedings — Petition — Amendment of petition — Terms.
    Where -the petition of a railroad company in condemnation proceedings, in describing the strip of land to be taken adjoining its right of way, excepted so much of the premises described as is included -within the lines of the highway ”, because petitioner’s attorney was misled by the official search into the belief that the defendants had no title to the highway, and the mistake is discovered before an award is made, the petition, under section 721 of the Code of Civil Procedure, made applicable to condemnation proceedings by section 3368 of said Code, may be amended so as to include in the description of the property to be taken the highway itself.
    But, where the railroad company, while an action is pending by the owners of the highway to restrain it from entering thereon, obtains an order permitting it to go into immediate possession upon depositing $5,000, which is done, the amendment will h» granted on condition that the petitioner pay all taxable costs to date in said action and also all witnesses’ fees paid and taxable on the part of the owners in the condemnation proceedings to the date of the order, together with an allowance to their attorney'upon the motion to amend and as compensation for his appearance to date before the commissioners.
    Motion oh part of the railroad company to amend its petition and other proceedings by amending the description of the parcel of land to be taken.
    Thomas D. Powell, for motion.
    E. C. Crandall, opposed.
   Wheeler, J.

The land proposed to he taken consists of a strip of land some one thousand eight hundred and twenty-five feet in length by twenty feet wide at one end and some forty-three feet at the other, adjoining the petitioner’s right of way. A highway runs across the strip, and it now appears that the parties defendant to this proceeding own the fee of the highway, although the petition, in describing the parcel to be taken, excepted so much of the premises described “ as is included within the lines of the highway ” The affidavits disclose that the highway was excepted because the petitioner’s attorney was misled by the official search into the belief that the defendants had no title to the highway, but that the mistake has since been discovered, and an amendment is now asked so as to include in the description of the property to be condemned the highway itself.

It goes without argument that the entire damage to be paid the owners should be ascertained in one proceeding and the petitioner not driven to institute a separate and distinct proceeding for the mere fee in the highway, and this application should not be denied if the court has the power to grant it. The power of the court to allow this amendment, however," is challenged by the counsel for the owners.

Section 3368 of the Code of Civil Procedure makes section 721 applicable to condemnation proceedings, and this section is very broad in its provisions and authorizes amendments where the adverse party has not been prejudiced. We cannot see how the owners can be prejudiced by the amendment.

In the case of Prospect Park & Coney Island R. R. Co., 67 N. Y. 378, an amendment was allowed by which a strip of land of less width than originally described was substituted, and the court said that, under the circumstances of that case, a further attempt at an agreement, on price did not appear necessary.

The affidavits presented in this case show that the negotiations with the owners related to all their interest in the strip, that in the highway as well as that on either side. So the owners cannot be said to be prejudiced.

If an amendment for a less quantity of land be permissible. I cannot see why the fee of the land in the highway cannot also be brought in by amendment. The owner cannot possibly be prejudiced by such an amendment whei;e the commissioners have not yet made their award, and if necessary the testimony before them may be begun de novo.

This amendment, however, must he upon terms.

It appears that an injunction action is pending, brought by the owners against the petitioner, to restrain it from entering on the land within the highway. It also appears that in this proceeding the petitioner obtained an order permitting it to go into immediate possession on depositing $5,000, which has been done. As the effect of this amendment and an award under it will operate to practically terminate the action for an injunction, as a condition of permitting the amendment, the petitioner must pay all taxable costs to date in the injunction action; it must also pay all witnesses’ fees paid and taxable on part of the owners in their proceeding to date, and also fifty dollars to the owners’ counsel or attorney for opposing this motion and as compensation for his appearance before the commissioners in this proceeding to date.

Let an order be entered accordingly.

Ordered accordingly.  