Suffolk County Telephone Co. v. Gammon

113 A.D. 764, 99 N.Y.S. 295, 1906 N.Y. App. Div. LEXIS 1536

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 1906
• Status: Published

Opinion

Miller, J.:

The defendant appeals from an order denying a motion to dismiss a petition in condemnation proceedings on the ground of an alleged defective description of the premises sought to be condemned, which description, in part, is as follows:

“ A right of way or easement for the plaintiff’s line of telephone wares and fixtures, along,, across and upon the following parcels of land: •

“Parcel Humber One. All that tract or parcel of land situate, lying and being in the Town of Brookhaven, County of Suffolk, and State of Hew .York, on the south side of the Country road, bounded on the wrest by the land of School - District Ho. 27 of the Town of Brookhaven, and on the-east by the land of C. W. Hedges, said poles to be erected at«or near the curb line on the south side of said Country road,” and it is claimed that this is not in compliance with subdivision 2 of section 3360 of'the Code of Civil Procedure, which provides that the petition must contain “A specific description of the property to be condemned, and its location, by metes and bounds, with reasonable certainty.” It maybe assumed that the location of the property to be condemned is sufficiently definite, but it seems to me clear that the statement that the property to be condemned is “ A right of way or easement for the plaintiff’s line-of telephone wires and fixtures ” is not sufficiently specific. “ In such proceedings extreme accuracy is essential to preserve the rights' of all the parties.” (Matter of N. Y. C. & H. R. R. R. Co., 70 N. Y. 191). “ There must be no uncertainty in the description of the property to be taken, nor in the degree of interest to be acquired.”. (Matter of Water Commissioners of Amsterdam, 96 N. Y. 351.) The reason for requiring strict compliance with the

statute is obvious. The description contained in the petition will control not only the admeasurement of damages, but the future; use of the property, and where an easement is to be taken there should be-no uncertainty as to the extent .of the easement, but it is impossible to "tell from this description'what burden will be imposed or what obstructions placed on defendant’s land. Telephone.lines are not all'built alike. A much more definite description was held iiiadequaté in Metropolitan El. R. Co. v, Dominick (55 Hun, 198)-, because, of language which left the future requirements of "the petitioner indefinite. In this case -there is .no description whatever of theline proposed to be erected, either at present or in the future.Under this, description the petitioner might have, the right tó set •poles at intervals of- only five feet and. "to string wires át any. dis-tance from the ground. The fact that it might be impracticable to , do so is no answer to the proposition that the .statute gives the defendant the right to be informed by the petition just what obstructions the petitioner proposes to place upon the defendant’s land, not, only for the' purpbse of determining the award of damages how, but for the purpbse of confining the petitioner in the "future to the" "specifications of the petition. At least tlie defendant is entitled'to know the size, number and location of’ the poles, and at what height -and in what manner the wires are to be strung, whereas the description challenged, instead of being specific, utterly fails to define the ‘ extent of the easement required. ■

It follows, therefore, that the petition was fatally defective, and the motion to dismiss should have been granted. .

The-'Order appealed from should be reversed, with ten dollars costs, and disbursements, and the motion granted, with costs:

Hirschberg, P. J., Woodward, Jenks and Hooker, JJ., concurred.

Order reversed, with ten dollars, costs and disbursements, and motion'to dismiss proceedings-granted, with costs.