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Maxson v. Gale

142 A.D. 335 Court Fourth Department, Decision date 1911-01-18 English

Delivered by Williams, J.:

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Jesse S. Maxson, as Town Superintendent of the Town of Adams, New York, Appellant, v. Henry Gale and Charles Hodder, Respondents.
Fourth Department,
January 18, 1911.

Headnote

Eminent domain — condemnation of stone for improving highways — petition — amendment — description of quarry and easements.
The Legislature in enacting section 51 of the Highway Law used the words “ town superintendents of highways” and the words “town superintendents” ' interchangeably to designate the same official.
A proceeding to condemn a right .to take and use gravel or stone from a gravel pit or quarry for the purpose of improving highways asauthorized by section 51 of the Highway Law should not be dismissed merely because the petition, following the words of the statute,.in some places speaks of the petitioner as town superintendent, without adding the words “ of highways," -for if the latter words were essential they could be readily supplied by amendment under sections 723 and 724 of the Code of Civil Procedure, which are applicable to proceedings under the General Condemnation Law.
Gravel and stone are part of real estate until removed, and, hence, a condemnation . of the right to remove them is a condemnation of real property.
Tlie petition to condemn such gravel and stone for the improvement of a highway should not describe the entire plot of land from which the material is
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to be taken, but on the contrary should locate the quarry itself by metes and bounds, as well as the right of way over which the material is to be removed, and also those lands contiguous to a quarry in which an easement' will be necessary in order to carry on operations.
But a petition should not be dismissed for the failure properly to- locate the quarry and the easements required. The court should permit an amendment in this respect- where there has been an attempt in good faith to comply with the statute.
Appeal by the plaintiff, Jesse S. Maxson, as town superintendent, etc., from a judgment of -the Supreme Court in favor -of the defendants, entered in the office of the clerk of the county of Jefferson oil the 1st day of July, 1910, upon the report-of a referee dismissing the petition herein.
Fred B. Waite and Henry Purcell, for the appellant.
Delos M. Cosgrove, for the respondents-.

The judgment should be reversed -and the petitioner given leave to make an amended petition in compliance with the views expressed in this opinion, the defendants to máke answer thereto if desired, and the proceeding thereupon should continue in accordance with the' provisions of the Condemnation Law (Code Civ. Proc. chap. 23, tit. 1), no costs of this appeal being allowed to either patty.

The proceeding was brought under the provisions of section 51 of the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30), which became a law February 17, 1909. Article 4, commencing with section 40, is entitled “Town.Superintendents ; General Powers and Duties.” Section 40 is entitled “ Election of town superintendent of highways,” and in that section the official designation has the words in it, “of highways.” In all the sections following to the end of the article, section 81, the official is called merely the town superintendent,, the words “ of highways ” being omitted. (See, also, Laws of 1909, chap. 488.) It must be assumed, therefore, that the-Legislature intended the two official designations to be- used interchangeably, either being correct, and the shorter form more easily written or spoken. Ho confusion or uncertainty can arise in any event, because there is no

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other official of the town with similar powers arid duties. I call attention to this matter at the outset inasmuch as the referee seemed to be perplexed over it, and it exercised considerable influence in leading to the decision he made dismissing the petition. It was no ground for such dismissal in any event, because if the words “ of highways ” were essential, they could readily be supplied by amendment under the Code of Civil Procedure (§§ 723, 724), which are by section 3368 made applicable to proceedings under the General Condemnation Law. The proceedings here are under that law, as provided by section 3359 of the Code of Civil Procedure. There are important questions involved in the proceeding, however, which seem not to be well understood, and which should be considered and determined. The statuté (Highway Law, § 51) is a new one, and it is not so clear what the form of the petition should be, so far as describing the property desired to be condemned is concerned. The statute provides merely for a condemnation of “ the right to take and use such gravel or stone and to remove the same from such bed, pit or quarry, for the purpose of grading, repairing or otherwise improving such highways, together with the right of way to and from such bed, pit or quarry, for the purpose of such removal.” The title to no land inside or outside of the quarry is to be condemned — simply the right to take and use and remove the gravel or stone, and to use a right of way for such removal. The gravel and stone are a part of the real estate until removed, and, therefore, the condemnation is of real property, but only of such part of the land or quarry as is taken out and carried away. The petition followed the statute in stating that the petitioner desired “ to obtain the condemnation of the right to take and use such stone and to remove the same from ' said quarry,” and then located the quarry by specifically describing said lands by metes and bounds on which it was claimed the quarry was located (instead of locating the quarry itself by metes and bounds), and in so doing described considerable land entirely outside of the quarry as that on which the quarry was located, and apparently sought to condemn all the land so described. The petition shorild, of course, describe the quarry itself, that is, the land actually co vered by the quarry from which the stone is to be taken,
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and it should' describe the right of way, both by metes and bounds, but should it describe any lands outside: the quarry and seek to condemn them, or any interest therein, as necessary to be used in operating the quarry ? It is said that blasting may be necessary for the removal of the stone and some of the material may be thrown upon the adjoining lands, and some lands outside the quarry proper may be needed for the location of' the machinery and temporary storage of the stone' until it is drawn away. It would undoubtedly be necessary to use some land contiguous to the quarry for these purposes, and the right to so use it would be an easement which the petitioner should condemn. We think the easement should be described in the petition.by inserting a description of the lands, by metes and bounds, an easement in which is desired tobe condemned, in order that the defendants may know just the extent to which their land is to be used, when the damages are assessed and awarded. Ho such amount of land, however, as that described in the petition would be- required, or should be described.

These views do not lead to a dismissal of the petition. The town superintendent, with the approval of the . town board, is entitled under the statute to maintain the proceeding. He has attempted in good faith- to comply with the statute in making his petition. The statute is of such recent passage that no decisions have been made under it, or at least have been reported. There is power to admit amendment of the petition to put it in proper form. (Code Civ. Proc. §§ 723, 724, supra.)

All concurred.

■ Judgment reversed and petitioner given leave to make an amended petition in compliance with, the views expressed in the opinion, without costs of this appeal to either party. Settle order before' Williams, J., on two days’ notice.

Statutes and regulations cited