Opinion
June Term, 1898.
Hartley G. Pelletier [ F.R. Coudert, Jr., with him on the brief], for the appellants.
Walter C. Anthony, for the respondent.
The water works company instituted this proceeding by petition, and the owners of the land resisted the application upon several grounds. The right to take lands against the will of the owner is conferred upon the company by virtue of the provisions of the Transportation Corporations Law (Chap. 566, Laws of 1890). It has long been settled that, in the exercise of this power, every statutory condition precedent to the taking must be strictly complied with. ( Craig v. Town of Andes, 93 N.Y. 405; Matter of Bos., Hoosac Tun. West. Ry. Co., 79 id. 69.) By section 83 of the above-mentioned law it is provided:
"Before entering upon, taking or using any land for the purposes of its incorporation, such corporation shall cause a survey and map to be made of the lands intended to be taken or entered upon, by and on which the land of each owner or occupant shall be designated, which map shall be signed by the president and secretary, and filed in office of the county clerk of the county in which such lands are situated."
It is also settled that the requirement provided by this section must be complied with. ( Matter of N.Y. Boston R.R. Co., 62 Barb. 85; Matter of Niagara Falls Whirlpool Railway Co., 46 Hun, 94.) The petition by which the proceeding was instituted in compliance with the requirements of the law, avers in general terms "that it is the intention of your petitioner in good faith to complete and maintain the work or improvement for which the property is to be condemned, and that all the preliminary steps have been taken to entitle petitioner to institute this proceeding." There is no specific allegation contained in the petition that the survey and map required by section 83 have been made and filed in the office of the county clerk of the county in which such lands are situated. The pleader assumed that such averment was sufficient as a condition precedent, as he adopted the language of subdivision 7 of section 3360 of the Code, and in this assumption he was correct. ( Rochester Railway Co. v. Robinson, 133 N.Y. 242.) The petition in this respect must, therefore, be sustained. The landowners, however, by answer put in issue this fact as averred in the petition, and it, therefore, became incumbent upon the petitioner to sustain such allegation by proof of the fact. We have searched this record in vain to find any proof whatever given upon such subject. At the close of the petitioner's proof the landowner moved to dismiss the petition upon the ground "that it has not been shown that the proper maps and surveys required by the statute as prescribed for the condemnation of lands have been filed with the proper officers according to the terms of the statute in that regard." This motion was denied and an exception was taken. The court determined the issues in favor of the petitioner, and decided as matter of law that the petitioner was entitled to take by condemnation the lands and easements described in his petition. To the findings of the court and the conclusion of law the plaintiff excepted. Subsequently commissioners were appointed, who proceeded to view the premises and take proof, and thereafter made a report therein, fixing the amount of compensation to which the landowner was entitled, and upon motion the report was confirmed and final judgment was entered.
It is quite apparent, therefore, that the condition precedent for which the statute has provided was not, in respect of the filing of the map and survey, complied with. Under the authorities already cited it is clear that such failure of proof entitled the landowner to a dismissal of the proceedings. He raised his objection in due time, and took proper exceptions, both upon the hearing and to the determination of the court.
It follows, therefore, that the order and judgment appealed from should be reversed, with costs of this appeal to the appellant, and as the petitioner was awarded costs against the appellant in the final judgment which was entered, based upon the ground that all the issues had been determined in favor of the petitioner; and as it now appears that he should have succeeded upon such issue, he should be awarded the costs of the hearing in the same measure as they are awarded to the petitioner in the final judgment.
All concurred.
Judgment and final order reversed, with costs of this appeal and the original proceeding to the appellants, and new trial granted.