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, their' proceeding is not in accordance with the petition, and is therefore illegal. I agree that suen proposition is correct. The question for us to determine is whether it is applicable to the facts in this case. Section 72 of chapter 868 of the Laws of 1895 (being the charter of the city of Johnstown) provides as follows:
“No expenditures for any local improvement in said city, the expense of which is to he 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 bj local assessment, unless the owners of at least one-half of the total number of 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 consent thereto in writing, and a certificate of the city engineer he indorsed thereon or attached thereto, to the effect that he has examined such petition or consent, and that such required number of property owners have signed the same, which certificate shall be prima facie evidence of the facts therein contained.”
[766]*766Section 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, that they may acquire the same by condemnation, under the provisions of the condemnation law of the state (chapter 23 of the Code of Civil Procedure).
It will thus be seen that the statute provides first for the declaration of the common council 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 and 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 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 extension 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 seems 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 [767]*767street, 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 herein-above described, of the said Mortimer Wade, the said city will be enabled to extend the said street from its northerly limits to its. southerly liiqits 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-out its declared intention of opening youth 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 lay 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 resolutions 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 doné the street would then be opened to the south bounds of the-city, as the'petition and the resolutions of May 25th 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 25th.
Free access — add to your briefcase to read the full text and ask questions with AI
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, their' proceeding is not in accordance with the petition, and is therefore illegal. I agree that suen proposition is correct. The question for us to determine is whether it is applicable to the facts in this case. Section 72 of chapter 868 of the Laws of 1895 (being the charter of the city of Johnstown) provides as follows:
“No expenditures for any local improvement in said city, the expense of which is to he 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 bj local assessment, unless the owners of at least one-half of the total number of 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 consent thereto in writing, and a certificate of the city engineer he indorsed thereon or attached thereto, to the effect that he has examined such petition or consent, and that such required number of property owners have signed the same, which certificate shall be prima facie evidence of the facts therein contained.”
[766]*766Section 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, that they may acquire the same by condemnation, under the provisions of the condemnation law of the state (chapter 23 of the Code of Civil Procedure).
It will thus be seen that the statute provides first for the declaration of the common council 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 and 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 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 extension 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 seems 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 [767]*767street, 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 herein-above described, of the said Mortimer Wade, the said city will be enabled to extend the said street from its northerly limits to its. southerly liiqits 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-out its declared intention of opening youth 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 lay 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 resolutions 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 doné the street would then be opened to the south bounds of the-city, as the'petition and the resolutions of May 25th 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 25th. 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 than is necessary for the public purpose 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 his 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 fact, 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 proceedings against Wade. Neither 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 [768]*768to 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. Railroad Co. v. Nagel, 75 Hun, 590, 27 N. Y. Supp. 669, affirmed in 150 N. Y. 562, 44 N. E. 1121.
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 ah application for leave to abandon the proceedings, and to vacate any order granted, must be made before the expiration of 30 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 the proceedings, and for an order setting aside such final order, was not made until October 7, 1897, much more than 30 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 appear 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 proceeding seems to have been regular.
For all these reasons the order appealed from should he reversed, with $10 costs and disbursements, and the application of the city denied, with $10 costs. All concur.