Herrick, J.:
. The order appealed from was made upon the ground that, where it is necessary, in order to open a street, that there should be a petition of the property owners fronting-upon such street, and that petition requests the opening of the street to a given point, and the city authorities proceed to open it for a shorter distance than is prayed for by the petitioners, the proceeding is not in accordance with the petition, and is, therefore, illegal. I agree that such proposition is correct; the question for us to determine is whether it is applicable to the facts in this ease.
Section 72 of chapter 568 of the Laws of 1895, being the charter of the city of Johnstown, provides as follows: “Mo expenditures for any local improvement in said city, the expense of which is to. be defrayed wholly or .partly by local assessment, shall be incurred, unless ;the .common council, shall .first,*by resolution#..declare.its intention to make such local improvement. The common council may, by resolution, declare its intention to construct or repair sewers, gutters and sidewalks, or to grade, fill, excavate,' gravel or sprinkle streets without preliminary .petition therefor or consent thereto. The .common council shall not. declare its. intention to make any other local improvement, the expense of .which is to be borne wholly or partially by local assessment, unless the owners of at least one-lialf of the total number óf front feet linear measurement, or at least one-half in number of the owners , of property on the street upon which the proposed improvement is to be made, petition therefor or consenkthereto "in; writing# :and.,a.--cektifica-te o-f: ,the.-city/engineer be [10]*10indorsed thereon or attached thereto,-to .the-effect that he has examined such petition ór consent, and that such required number of property owners have signed the. saíne, which certificate shall be prima facie evidence of the facts therein contained.” '
Section 81 of the same chapter provides as follows: “ Whenever the common council shall intend to lay out, alter, widen, extend, contract or discontinue any street, lane, alley, highway or public grounds in said city, and the lands of any person or corporation, or any right or easement therein will be necessary for that purpose; and whenever the common, council shall intend to acquire lands, rights or easements therein for any other, purpose mentioned in this act, they shall cause the same to be surveyed and monuments placed showing the line thereof, and a map to be made of the same.”
It further provides that .the common council, after making and filing the map containing the description of the property-to be taken, shall declare by resolution their intention to take and appropriate said property for the proposed improvement; and thereafter they may purchase such land deemed necessary of the owners thereof, and upon their failure to agree upon the price, they may acquire the-same by condemnation under the provisions of the Condemnation Law of the State .(Chap. 23,. Code Civ. Proc.).
It will thus be seen-that the statute provides, first, for the declaration of the common council1 of its intention to make such local improvement, and that whenever it is necessary to acquire lands for the purpose.of making such -improvement, they shall make arid- file maps of the lands necessary to be taken, and monument the same, and shall then declare by- resolution' their intention to take .and appropriate the said property for the proposed improvement.
As we have seen from the statement of facts, after the presentation of the petition to -extend South-Market street to the south-boundaries of the city, the common council on the ,25th day of. May,-1896, passed a-resolution in, which they declare their intention “to extend South Market Street * *’ * from its present- southerly terminus in West Montgomery Street, south to the south corporate limits of said city.”
That declaration of intention was as broad as the request of the petitioners.
This declaration of intention .constituted the formal opening or [11]*11extension of the street. All subsequent proceedings provided for are simply for the purpose of carrying that intention into effect, and to practically and physically open or extend such street.
The next step to be taken under the charter was to map and monument the proposed line of the street; that appears to have been done. The next proceeding in order would be a declaration of their intention to take the lands necessary for the purpose of opening the street. Now it seeuis to me that it must be apparent that this requirement of the statute authorizes them to take only such land as. is necessary, and that if the city already owns any land upon the line of such proposed street, or if any has been given to it, there would be no necessity to condemn such land, or if between Montgomery street and the south bounds of the city, any portion of South Market street, as they proposed to extend, it, was already opened and occupied as a street, whose lines were in conformity with the proposed extension, and with the rest of the street, that then it would be only necessary to take and condemn the intermediate lands.
Upon the application to the court for a judgment condemning the lands of Wade, the city of Johnstown set out in .its petition the following statement: “ The public use’for which the said property is. required is the extension .of South Market street, in the city of Johnstown, south from West Montgomery street over-the said lands, and over lands of the said James Younglove, of Isaac Gustin and of James Heagle to First Avenue in said city. South Market street,, in the said city of Johnstown, is a street running from the northerly limits of said city to the lands aforesaid of the said Mortimer Wade, and commencing again at First Avenue and proceeding thence southerly to the southerly limits of said city. The said Isaac Gustin, James Younglove and James Heagle have consented to convey lands belonging to them to the city of Johnstown for the purpose of said extension, so. that by the acquisition of the lands hereinabovedescribed of the said Mortimer Wade, the said city will be enabled to extend the said street from its northerly limits to its southerly limits as aforesaid.”
■ And this statement is in no wise contradicted upon this application, and it would appear, therefore, from such statement that the only lands necessary for the city to acquire for the purpose of carrying [12]*12■out its declared intention of opening South Market street from West Montgomery street to the south lines of the city, were the lands of the defendant Wade.
As we have seen, the only power to. condemn conferred upon the ■common council is to- condemn, such lands as are necessary to open and Jay out the proposed street; therefore, they could condemn no. more than Wade’s land.
The resolution of May 25, 1895, was the resolution to extend the street. The resolutions of July 20, and December 7, 1896, were not resolutions for extending or opening the street, but were resolm tions stating the lands necessary to be taken to open and extend the' street, and providing for their taking. It was only necessary for them to take land to First avenue; when that was done the street would then be opened to the south bounds of the city, as the petition and-the resolutions of May twenty-fifth required, so that these resolutions were not in conflict, but in harmony with each other, the latter ones being adopted for the purpose of carrying into effect the resolutions of May twenty-fifth. /
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Herrick, J.:
. The order appealed from was made upon the ground that, where it is necessary, in order to open a street, that there should be a petition of the property owners fronting-upon such street, and that petition requests the opening of the street to a given point, and the city authorities proceed to open it for a shorter distance than is prayed for by the petitioners, the proceeding is not in accordance with the petition, and is, therefore, illegal. I agree that such proposition is correct; the question for us to determine is whether it is applicable to the facts in this ease.
Section 72 of chapter 568 of the Laws of 1895, being the charter of the city of Johnstown, provides as follows: “Mo expenditures for any local improvement in said city, the expense of which is to. be defrayed wholly or .partly by local assessment, shall be incurred, unless ;the .common council, shall .first,*by resolution#..declare.its intention to make such local improvement. The common council may, by resolution, declare its intention to construct or repair sewers, gutters and sidewalks, or to grade, fill, excavate,' gravel or sprinkle streets without preliminary .petition therefor or consent thereto. The .common council shall not. declare its. intention to make any other local improvement, the expense of .which is to be borne wholly or partially by local assessment, unless the owners of at least one-lialf of the total number óf front feet linear measurement, or at least one-half in number of the owners , of property on the street upon which the proposed improvement is to be made, petition therefor or consenkthereto "in; writing# :and.,a.--cektifica-te o-f: ,the.-city/engineer be [10]*10indorsed thereon or attached thereto,-to .the-effect that he has examined such petition ór consent, and that such required number of property owners have signed the. saíne, which certificate shall be prima facie evidence of the facts therein contained.” '
Section 81 of the same chapter provides as follows: “ Whenever the common council shall intend to lay out, alter, widen, extend, contract or discontinue any street, lane, alley, highway or public grounds in said city, and the lands of any person or corporation, or any right or easement therein will be necessary for that purpose; and whenever the common, council shall intend to acquire lands, rights or easements therein for any other, purpose mentioned in this act, they shall cause the same to be surveyed and monuments placed showing the line thereof, and a map to be made of the same.”
It further provides that .the common council, after making and filing the map containing the description of the property-to be taken, shall declare by resolution their intention to take and appropriate said property for the proposed improvement; and thereafter they may purchase such land deemed necessary of the owners thereof, and upon their failure to agree upon the price, they may acquire the-same by condemnation under the provisions of the Condemnation Law of the State .(Chap. 23,. Code Civ. Proc.).
It will thus be seen-that the statute provides, first, for the declaration of the common council1 of its intention to make such local improvement, and that whenever it is necessary to acquire lands for the purpose.of making such -improvement, they shall make arid- file maps of the lands necessary to be taken, and monument the same, and shall then declare by- resolution' their intention to take .and appropriate the said property for the proposed improvement.
As we have seen from the statement of facts, after the presentation of the petition to -extend South-Market street to the south-boundaries of the city, the common council on the ,25th day of. May,-1896, passed a-resolution in, which they declare their intention “to extend South Market Street * *’ * from its present- southerly terminus in West Montgomery Street, south to the south corporate limits of said city.”
That declaration of intention was as broad as the request of the petitioners.
This declaration of intention .constituted the formal opening or [11]*11extension of the street. All subsequent proceedings provided for are simply for the purpose of carrying that intention into effect, and to practically and physically open or extend such street.
The next step to be taken under the charter was to map and monument the proposed line of the street; that appears to have been done. The next proceeding in order would be a declaration of their intention to take the lands necessary for the purpose of opening the street. Now it seeuis to me that it must be apparent that this requirement of the statute authorizes them to take only such land as. is necessary, and that if the city already owns any land upon the line of such proposed street, or if any has been given to it, there would be no necessity to condemn such land, or if between Montgomery street and the south bounds of the city, any portion of South Market street, as they proposed to extend, it, was already opened and occupied as a street, whose lines were in conformity with the proposed extension, and with the rest of the street, that then it would be only necessary to take and condemn the intermediate lands.
Upon the application to the court for a judgment condemning the lands of Wade, the city of Johnstown set out in .its petition the following statement: “ The public use’for which the said property is. required is the extension .of South Market street, in the city of Johnstown, south from West Montgomery street over-the said lands, and over lands of the said James Younglove, of Isaac Gustin and of James Heagle to First Avenue in said city. South Market street,, in the said city of Johnstown, is a street running from the northerly limits of said city to the lands aforesaid of the said Mortimer Wade, and commencing again at First Avenue and proceeding thence southerly to the southerly limits of said city. The said Isaac Gustin, James Younglove and James Heagle have consented to convey lands belonging to them to the city of Johnstown for the purpose of said extension, so. that by the acquisition of the lands hereinabovedescribed of the said Mortimer Wade, the said city will be enabled to extend the said street from its northerly limits to its southerly limits as aforesaid.”
■ And this statement is in no wise contradicted upon this application, and it would appear, therefore, from such statement that the only lands necessary for the city to acquire for the purpose of carrying [12]*12■out its declared intention of opening South Market street from West Montgomery street to the south lines of the city, were the lands of the defendant Wade.
As we have seen, the only power to. condemn conferred upon the ■common council is to- condemn, such lands as are necessary to open and Jay out the proposed street; therefore, they could condemn no. more than Wade’s land.
The resolution of May 25, 1895, was the resolution to extend the street. The resolutions of July 20, and December 7, 1896, were not resolutions for extending or opening the street, but were resolm tions stating the lands necessary to be taken to open and extend the' street, and providing for their taking. It was only necessary for them to take land to First avenue; when that was done the street would then be opened to the south bounds of the city, as the petition and-the resolutions of May twenty-fifth required, so that these resolutions were not in conflict, but in harmony with each other, the latter ones being adopted for the purpose of carrying into effect the resolutions of May twenty-fifth. /
Section 81 provides that when it is necessary, to condemn lands for street openings or extensions, the condemnation proceedings shall be taken under the provisions of chapter 23 of the Code of Civil Procedure.
Section 3360 of the Code sets forth what is necessary to be alleged in a petition for condemning land.
The petition presented in this case sets forth all the facts necessary to give the court jurisdiction. ■ There is no right to condemn more ;tiian-is'f necessary 'for 'the "püblic'púrpofee in question.' The petition sets forth the lands it was necessary to acquire for the purpose of extending the street to the south bounds of the city. The law requires that the. petitioner should set forth its inability to agree with the owners of the land upon its purchase.
The petition herein sets forth that all the. owners of the land . necessary to be acquired had consented .to> convey to the city except Wade.; it. was not necessary, therefore, to condemn the lands of any one except Wade.
. ■ The factj if it be a fact, that such other owners have since receded from their agreement to convey to the city, makes no difference as to-the-regularity of the. pr.oceédings.Jagainst Wade. . .
[13]*13Neither do the proceedings against Wade alone present any legal objection to any subsequent separate proceedings against the lands of the owners whose property it is necessary to have to complete the opening.
While it is more convenient and less expensive to include all the lands and owners in one proceeding, it is not necessary. Separate applications • may.be made.,to the .court as to each.
. The question has usually arisen, not as to whether separate proceedings can be taken, but as to whether all the lands to be condemned must not be so condemned in one proceeding. (Brooklyn Elevated R. R. Co. v. Nagel, 75 Hun, 590; affd., 150 N. Y. 562.)
There is another objection to vacating the order and judgment of condemnation.
The proceedings, as we have seen, are governed by the provisions of the Code of Civil Procedure.
Section 3374 of the Code provides that an application for leave to abandon the proceedings and to vacate any order granted must be made before the expiration of thirty days, after the entry of the final order. The order herein, as we have seen, was entered January 27, 1897,. and the judgment thereon was docketed August 10, 1897, and the petition for leave to abandon thequ’oceedings and for an order setting aside such final order was not made until October 7, 1897, much more than thirty days after the entry of the final order.
The fact that the city failed in its subsequent proceedings to secure orders of condemnation against the lands of those persons who at first agreed, as appears from the petition, .to convey to the city, can make no difference here; we must act upon the record before us in the proceeding against.the land of Wade, and such proceedings seem to have been regular.
For all these reasons the order appealed from should be reversed, with ten dollars costs and disbursements, and the application of the city denied, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and . application of the city denied, with ten dollars costs.