
    In the Matter of the Application of The Metropolitan Elevated R. Co., Resp’t, v. Francis J. Dominick, App’lt. In the Matter of the Application of The Metropolitan Elevated R. Co., Resp’t, v. William P. Douglass, App’lt. In the Matter of the Application of The New York Elevated R. Co., Resp’t, v. Susan A. Baldwin, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 2, 1889.)
    
    1. Eminent domain—Proceedings mat be maintained after construction OF ROAD.
    An elevated railway company may maintain proceedings to condemn an easement, notwithstanding that the road has been constructed.
    2. Same—Petition should state intention to complete road.
    A statement in the petition that' the company intend in good faith to construct and finish a railroad from and to the places named in its article , or its equivalent, is essential. Where the road has already been constructed a statement of intention to do so is not necessary, but the question whether a statement that the company has constructed “a railway which it was so authorized to construct" is equivalent to a statement that it has constructed the entire road authorized is one of fact to be determined on all the proofs, and should not be solved on a preliminary objection.
    3 Same—Description op property.
    A statement in the petition that there is required so much of the property, easements, etc., as has been taken by reason of the construction of the railway with two columns in the street and a superstructure carrying tracks upon transverse girders spanning the street, and as has been and may be required," is too indefinite.
    4. Same—Inability to acquire title.
    Pacts must be stated to show inability to acquire title. A statement on information and belief that petitioner has not been able to acquire title and is unable to agree for the purchase of the real estate, and that the reason is that the owner will not sell the same for a reasonable compensation, states no facts and is insufficient.
    Appeal for orders of the special term overruling certain preliminary objections taken by property owners to the railway companies’ petitions in condemnation proceedings and denying the motions made by these property owners to dismiss such proceedings.
    
      E. C. Perkins, for app’lt, Dominick; E. B. Whitney, for app’lt, Baldwin; Jay & Candler, for app’lt, Douglass; Julien T. Davies, for the companies, resp’ts.
   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 tobe acquired. The second, that the reason of the petitioners’ inability to acquire title has not been sufficiently stated.

The other objections were properly overruled. They were either untenable or doubtful. Among the untenable objections was that which went to the root of the proceeding and denied the petitioners’ right in toto. My views upon that head have already been expressed at special term in an unreported, opinion, see Daily Register, April 14, 1888, and I adhere to those views. Under the act of 1850, chap. 140, §§ 14, 21, as amended by chap. 649 of the Laws of 1881, there can be no doubt of the petitioners’ 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. N. Y. C. R. R. Co., 78 N. Y., 423; and it harmonizes with the views expressed in Prospect Park & C. I. R. Co., 67 N. Y., 371. See also Ford v. C. & N. W. R. R. Co., 14 Wis., 609.

Among the doubtful objections is that which rests upon the provisions 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.”

We think this statement or its equivalent 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. N. Y. Central R. R. 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 has “ constructed, maintained and operated a railway which it was so authorized to construct, 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 question 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 N. Y. Central & H. R. R. R. Co., 70 N. Y., 191, and there must be no uncertainty in the description of the property to be taken nor in the interest to he acquired. Matter of Water Commissioners of Amsterdam, 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 or constituting the street in front or alongside of the lots and premises in this-subdivision 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 he 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 “may be required ” by the preceding words “ as has been taken ” and thus make the paragraph read “ so much of the property which may he 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 one, and believe, that the property owners will not sell for a reasonable compensation. By section 13 of the act 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 to state 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 detects 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 ten dollars 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.-

Van Brunt, P. J., and Bartlett, J., concur.  