129 N.Y.S. 828 | N.Y. App. Div. | 1911
The New York Central and Hudson Biver Baihoad Company started this proceeding for the purpose of acquiring lands in Westchester county for the purpose of enlarging its terminals. The lands in question are located south of the plaintiff’s station at,Harmon, and are alleged to be necessary for the proper construction of the plaintiff’s new terminal lines. There are two parcels of land; the first, known as parcel No. 1, is concededly owned by the appellants and its value is placed at $200,000. This parcel of land is situated upon the bank of the Hudson river, and for about one-half of its length ■ overlaps parcel No. 2, which consists of land entirely under the waters of the Hudson river. That is, parcel No. 1 lies between the river and the plaintiff’s present right of way, and parcel No. 2, which lies under the water of the river, starts at a point near the center of parcel No. 1, along the bank of the river, and extends south a considerable distance, so that the owners of parcel No. 1 abut upon a portion of parcel No. 2, and are entitled to the rights of riparian owners in that portion of parcel No. 2 which extends .northerly between parcel No. 1 and the river. These rights were clearly pointed out in Saunders v. N. Y. C. & H. R. R. R. Co. (144 N. Y. 75, 87-89), and are referred to here for the purpose of indicating that the appellants are proper parties to both proceedings, if the plaintiff is to secure the lands necessary"for its projected improvement.
The plaintiff, in its petition, alleged that the appellants were
The appellants have moved the court to separate this proceeding, and to dismiss the petition in so far as it relates to parcel No. 2, on the ground that a condemnation proceeding is not the proper place to try out a disputed title as between the appellants and the People of the State of New York, urging that as the petitioner has alleged that the title is in the People of the State of New York, the appellants are not proper parties to the proceeding, The State was represented upon the motion and urged that it was,not a proper party to the proceeding in so far as parcel No. 1 was concerned, and the court has held against, both of these contentions. Appeal now comes to this court On the part of those claiming under the Van Cortlandt grant, the State accepting the order as it is.
We have already pointed out that the appellants have an interest in parcel No. 2, entirely apart from .the question of the ownership of the fee, and while this interest is not large, perhaps, it is such an interest as cannot be taken without' the ■ presence of the appellants in this proceeding. This is a proceeding to take real property, as that term is understood in the Condemnation Law (Code Civ. Proc. § 3357 et seq.), and that includes “ any right, interest or easement therein or appurtenances thereto,” and it is clear under the decisions that lands
“As to the practice, it has been the common-,custom since the General Railroad Act of 1850 (Chap. 140) for the petitioner in condemnation proceedings to include in its petition many pieces of land, the properties of different owners. The practice has many advantages; • the presentation of all objections at the same time, the appointment-of a single set of commissioners to act in the whole class of cases. The practice has been so common that it "should not be. condemned unless there is some substantial objection to it. Any party can file his answer, and as to such party it is from that time in substance a separate action.,- If it be irregular to join the lands of different owners in a single petition it is within the power, of the court to sever the cases, and the entry of" an order or judgment in a particular. Case is,-, in fact, a severance.” (Cullen, J., in Brooklyn Elevated R. R. Co. v. Nagel, 75 Hun, 590; affd., without opinion, 150 N. Y. 562.) Here we have the parties who claim an interest in these -two parcels. Both .parties are necessary to the practical result sought- to be accomplished1, and why there should be a severance, or a .dismissal of the proceeding, we are unable to discover.
At the same time it is clear to us that the plaintiff should-not assume to determine who.the owner of parcel No. 2 is, but. should be Content to bring both parties into the proceeding as owners, leaving the question as to which one is entitled.to the- ' compensation to be determined in ,the manner provided in section 3378 óf the Code of Civil Procedure, to amend the- allega
The order appealed from should be affirmed, but without "costs to either party.
Jerks, P. J., Thomas> Carr and Rich, JJ., concurred. Order affirmed, without costs.