In re Long — 34 N.Y. St. Rep. 778

Majority

p. 778

In the Matter of the Application of Edward B. Long et al., Trustees, etc.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

Eminent domain—Sewees—Laws 1887, chap. 609.

Where the petitioner shows a reasonable necessity for the condemnation of land for sewerage purposes under chap. 609, Laws 1887, the application should be granted.

Appeal by Charles Butler from order confirming report of commissioners appointed to appraise lands to be taken for sewerage purposes under Laws 1887, chap. 609.

Willard Parker Butler, for app’lt; Id. T. Dykman, for resp’ts.

This is a proceeding on behalf of the board .of trustees of the village of White Plains, Westchester county, to acquire lands necessary to be used by said village in the construction, completion and maintenance of its sewers and sewerage system, pursuant to chap. 609 of the Laws of 1887, and acts amendatory thereto and included therein.

The proceeding was begun by filing the petition in the office of the clerk of the county of Westchester,. on February 28, 1890. The petition and notice of motion for the granting of the same was served on the claimant on March 1,1890; the claimant, Charles Butler, owner of parcel No. 11, enumerated in the petition, appeared by attorney, and objected to the appointment of commissioners and interposed a verified answer.

The issues so raised were tried at a special term for the trial of equity causes, before the Hon. J. F. Barnard, P. J., at the county court house at Poughkeepsie, on March 18, 1890.

Proofs were taken and findings of fact and conclusions of law were made by the court, and an order thereupon entered overruling and denying the issues raised by the said claimant herein by his said answer, and granting the prayer of the petition as to the real estate owned by said Charles Butler and described as said parcel No. 11, and appointing commissioners of appraisal to appraise and ascertain the compensation to be paid to said claimant for his said parcel No. 11. .

Thereafter the commissioners duly met and appraised and •ascertained said compensation.

From the order of confirmation the claimant appeals.

At the hearing at special term no irregularity was shown either in the form of the petition or the proceedings connected therewith, or any failure of the trustees to perform their duties under the act of the legislature appointing them.

p. 779

These trustees were authorized to adopt and establish, subject to the approval of the state board of health, a permanent system of sewerage and drainage for the village of White Plains. The board was also authorized to determine the location of all sewers which may become necessary, and to fix and carry out all the details necessary to accomplish the work contemplated by the statute.

The board did fix upon a plan, and it was approved by the state board of health.

The board, also, under the statute, had the power at any time to extend the sewer or to do anything appurtenant thereto, and to change the plan with the approval of said board of health. It appeared at the hearing, without contradiction, that it was necessary to acquire the land in dispute in order to carry out the plan adopted by the board and approved by the board of health.

What system of sewerage should be adopted was under the statute left to the determination of the trustees, subject as before stated to the approval of the board of health, and it cannot be attacked or changed by a property owner upon the ground that some other system would be better.

The general rule in "such case is that where the .petitioner shows a reasonable necessity for the condemnation, the application should be granted. Matter of N. Y., L. & W. R. R. Co., 35 Hun, 220 ; Matter of N. Y., L. & W R. R. Co., 99 N. Y., 12 ; Matter of N. Y. C. & H. R. R. R. Co., 77 id., 248.

We think the petition was sufficient in form, that the land sought to be taken was necessary for the sewer outlet, and that no irregularity occurred in the proceedings sufficient to invalidate the order made therein.

Order affirmed, with costs.

Bartlett, J., concurs in result.