
    New England Telegraph Company, Respondent, v. William A. Neiger and Maggie C. Neiger, Appellants.
    Third Department,
    May 5, 1915.
    Eminent domain — condemnation of right to maintain telegraph poles in highway —duty of commissioners on resubmission of report — measure of damages.
    Where upon an application to confirm the report of commissioners appointed to make an award for the condemnation of rights to maintain telegraph poles in the highway in front of private property, the court rejects the report because the proper measure of damages was not adopted, and directs that the commissioners “ reconsider the matters heretofore submitted to them and make and file a new report,” the commissioners should take up the question of compensation de novo and should consider additional evidence as to damage offered by the defendant.
    For such taking of property the measure of damages is not the difference in value between the lands of the defendant prior to and subsequent to the construction of the telegraph line.
    Appeal by the defendants, William A. Neiger and another, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Sullivan on the 16th day of August, 1913, confirming the report of commissioners appointed to ascertain the compensation to be made defendants for property taken for the purpose of the construction and maintenance of a telegraph line.
    
      Ellsworth Baker, for the appellants.
    
      John D. Lyons, for the respondent.
   Lyon, J.:

The sole question to be determined in this proceeding, which was instituted under the General Condemnation Law (Code Civ. Proc. chap. 23, tit. 1), is the compensation which should be awarded the defendants on account of the perpetual right to erect and maintain thirty-four telegraph poles within the public highway along the southerly boundary of defendants’ farm, together with the right to construct and maintain an anchor to which shall be attached a guy wire leading to one of said poles.

The defendants interposed no denial to the allegations of the petition that the public use required the condemnation of said rights and that the plaintiff was entitled to hold and use the same for the public use upon making compensation therefor. By order granted September 15, 1906, the court appointed three commissioners to ascertain and appraise the compensation to be made to the defendants therefor. By report of date April 4, 1911, the commissioners awarded the defendants $350. Upon application of the defendants to confirm said report the court by order of July 29, 1911, rejected the same and directed that said commissioners ‘reconsider the matters heretofore submitted to them and * * * make and file a new report with all convenient speed.” Thereupon said commissioners reconvened in August, 1912, at which time the plaintiff objected to the commissioners opening the proceedings and taking any further testimony in the case upon the ground that the order did not authorize them so to do, but directed that the matters be reconsidered upon the testimony and proofs theretofore submitted. The defendants also objected to the commissioners filing another report, except as the same was based upon new and additional testimony and that the court had no power to order a different report to be filed upon the testimony already taken. The defendants offered to introduce new testimony bearing upon the merits of the question as to the compensation which should be made. The commissioners, however, held that the report was rejected and sent back to them for the reason that the defendants were entitled under the evidence presented to the commissioners to nominal damages only, and that the commissioners had no power to open the case and take further proofs. The com,missioners thereupon refused to open the proceedings for the submission of further testimony, and decided that the defendants were entitled under the evidence submitted to the commissioners to nominal damages only, which the commissioners fixed at one dollar per pole.- Upon a report to such effect being rendered, the plaintiff moved for an order confirming said second report.

The court, in granting the motion by order of April 5, 1913, stated in its order that it did so desiring that the whole question be taken up by the Appellate Division.' From said order this appeal was thereupon taken by the defendants.

We think the commissioners misapprehended the intent and effect of the order of July, 1911, rejecting the report of April 4, 1911, and directing the commissioners to reconsider the matters theretofore submitted to them, and to make and file a new report.

The plaintiff assumed upon the hearings before the commissioners that the proper compensation to be allowed to defendants was the difference in value between the farm of defendants prior to, and subsequent to, the construction of the telegraph line. This was not the proper measure of damages. (Blashfield v. Telephone Co., 147 N. Y. 520; Comesky v. Postal Telegraph-Cable Co., 41 App. Div. 245.)

The plaintiff in its brief before us says: “Excluding the testimony of witnesses for the defendants as to the value of the farm with the telegraph line on the highway in front of it,' and what the value of the farm would be without such telegraph line on the highway in front of it, there is no evidence left in behalf of the defendants showing any damage whatsoever, and hence this too leads to the conclusion that only nominal damages should be awarded.”

The evident purpose of the order of July 29, 1911, was that the matter of the compensation to be awarded to the defendants should be taken up by the commissioners de novo to the end that the determination, whatever it should be, might be upon the merits supported by proper evidence.

The order appealed from should, therefore, be reversed, and the second report set aside also, and the matter of such compensation taken up de- novo under, the order of September 15, 1906, by said commissioners, who are stated by both parties to be satisfactory, with costs of this appeal to the appellants to abide the event.

All concurred; Howard, J., not sitting.

Order appealed from reversed and second report set aside, and matter of such compensation directed taken up de novo under order of September 15, 1906, by said commissioners, with costs to appellants to abide event.  