In re Lake Shore & M. S. R.

The land proposed to be taken consists of a strip of land some 1825 feet in length by 20 feet wide at one end, and some 43 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 affiants disclose that the highway was excepted because the petitioner’s attorney was misled by the official search into the belief 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 naid 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 highwa)7, 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 owner. Section 3368 of the Code of Civil Procedure makes section 721 applicablé 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 the 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 an amendment embracing 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 where the commissioners have not yet made their award, and, if necessary, the testimony before them may be begun de novo. This amendment, however, must be 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 witness’ fees paid and taxáble on the part of the owners in their proceeding to date, and also $50 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.