In the Matter of the Application of the NIAGARA, LOCKPORT AND ONTARIO POWER COMPANY, Respondent, Relative to Acquiring Title to Certain Real Estate, of Which ROSALIA KLAKA, Also Known as ROSALIE FLARKE, Appellant, and ANTHONY FLARKE Are the Owners or Persons Interested Therein.

(Fourth Department, March 7, 1906.)

Condemnation by electric power company-Immediate possession of lands pending proceedings - When owner cannot defeat.

APPEAL by Rosalie Flarke from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara on the 1st day of November, 1905, permitting the plaintiff to enter immediately upon the real property described in the petition herein.

The plaintiff is an electric transportation corporation duly organized pursuant to the laws of the State of New York, and is engaged in constructing a line for the transmission of electricity from the city of Buffalo eastwardly to the central part of the State. Maps of the route have been filed, surveys made, nearly all the land necessary for the right of way, and which comprises a strip 200 feet in width, has been acquired in the counties of Erie, Niagara, Orleans and Monroe, and much of the actual work of construction has been performed.

The appellant, Rosalie Flarke, owns land in the town of Lockport, in the county of Niagara, one and three-fourths acres of which the plaintiff is seeking to acquire. Proceedings were commenced by plaintiff for the condemnation of the land mentioned in August last. An answer was interposed by the appellant denying nearly all the allegations of the petition, also containing affirmative defenses; and the issues were, in the latter part of September, referred to a referee, and the proceeding is still undetermined.

Early in October the present proceeding was commenced and an order granted at Special Term permitting the plaintiff to enter immediately upon the premises of the defendant described in the petition upon depositing with the court the sum of $500, to be applied toward the payment of any award which may be made to her, including the costs an expenses of the proceeding. The money has been deposited in pursuance of the order. Other facts appear in the opinion.

SPRING, J. The petition alleges that the value of the property to be condemned is three hundred and fifty-five dollars and eighty

cents, and the affidavit of Mr. Scoby states that the land is assessed at thirty dollars an acre, and is worth not to exceed seventyfive dollars an acre. The answer of the defendant specifically denies the estimate placed upon the property by the plaintiff, but does not contain any statement of its value. The appellant's contention is that the court consequently had no jurisdiction to designate or to ascertain a sum upon the payment of which temporary possession would be accorded it of the defendant's property.

The original proceeding is the usual one to acquire property for a public use where the plaintiff is unable to agree with the owner for its purchase, and seeks to have the compensation ascertained by commissioners as prescribed in section 3360 of the Code of Civil Procedure. The answer raised issues to be tried. There are two provisions of the Code of Civil Procedure pertaining to the possession of property by a condemning plaintiff, and which were incorporated in the Code of Civil Procedure by chapter 95 of the Laws of 1890. Section 3379 (as amd. by Laws of 1900, chap. 774 applies where the plaintiff is already in possession of the property sought to be condemned. Section 3380, which governs in the present instance, is applicable where the plaintiff is not in possession, but an answer has been interposed, "and it appears to the satisfaction of the court that the public interests will be prejudiced by delay;" thereupon the plaintiff may be given the immediate possession of the property to be taken, and permitted. to devote it temporarily to the public use specified in the petition, upon depositing with the court the sum stated in the answer as the value of the property." Subsequent provisions of the same section relate to the application of the money upon the termination of the proceeding, the payment of costs, etc., providing also for a judgment for deficiency if the sum deposited is inadequate to meet the award.

The position of the defendant is that inasmuch as the object of this section is to enable a corporation or person, for the use of the public, to deprive the owner temporarily, but against his will, of his own property, it must receive a strict construction; and as the answer omitted to contain any statement of the value of the property, the order is erroneous. We think this interpretation of the section is too narrow. The interposition of an answer often results in delaying for some time the termination of the proceeding to condemn. The owner of land who is endeavoring to obtain an exorbitant sum from the plaintiff for his premises may interpose

an answer and block the prosecution of the work in the face of the paramount necessity for its accomplishment. To guard against this unfair obstruction of the work, the Legislature came to the rescue by the enactment of the two sections mentioned. They are similar in the object to be attained and in the manner of accomplishment, except where the plaintiff is in possession, security in lieu of the payment of money may be directed by the court upon granting the order for the continuance of possession.

By section 3380, as well as by the preceding section, the Legislature had two cardinal purposes in view. First. Where the prosecution of the work contemplated by its charter was demanded by the public interests and prejudicial delay was likely to ensue from the interposition of an answer, a remedy was afforded the plaintiff to acquire immediate possession pending the proceeding. Second. The rights of the owner were sufficiently protected by the payment of the sum which he claimed under oath was the fair value of the property of which he was to be deprived. The mode of procedure prescribed is, consequently, beneficial to both parties. The right of the company to condemn being established, and the prejudice to public interests by delay appearing, the court will make the order, which, on the one hand, will enable the work to be carried on, and, on the other, will insure compensation to the owner for the property taken.

The reason for taking the value specified in the answer as the sum to be paid is to insure the defendant the full worth of his premises beyond a peradventure. If he intentionally or otherwise fails to state any value at all, the court is not thereby prevented from granting the relief where "the public interests will be prejudiced by delay." In construing the section we must keep in mind that the basic ground for the relief is the needs of the public. If the deposit made is entirely adequate the defendant is fully safeguarded, and that is precisely what the statute intended. It is of little importance how the sum to be paid is arrived at if the object designed is attained and the defendant is assured the full sum which may eventually be awarded him.

The counsel for the appellant admitted upon the oral argument of this appeal that the justice at Special Term endeavored to ascertain from him what he regarded as adequate compensation to his client. But the counsel declined to make any estimate, preferring to rest his opposition upon the proposition that the failure to state any value in the answer barred the court from granting re

lief to the plaintiff. So upon the argument of the appeal counsel declined, upon invitation of the presiding justice, to inform the court whether he complained that the sum deposited was insufficient, reiterating the reason for his refusal. He also admitted that there had been no attempt on the part of the plaintiff to delay or obstruct the pending condemnation proceeding. We must assume, consequently, the concrete controlling fact that the sum deposited is ample to pay the defendant any award which will be made to her and protect her in every respect. The aim of the statute has, therefore, been accomplished.

Section 3365 of the Code of Civil Procedure does not require the defendant in condemnation proceedings to state the value of the property in his answer. It is not conceivable that the Legislature in the light of this fact would leave a loophole so that a contentious owner at any time might render nugatory the relief provided for in section 3380 by simply omitting to allege the value of the property sought to be taken.

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Section 3382 of the Code of Civil Procedure is in point in so far as it denotes the purpose of the Legislature to invest the courts with general authority to make effectual "the object and intent" of the Condemnation Law. If the answer does not state the value of the property the "manner of conducting the proceedings therein is not expressly provided for by law." (§ 3382.) The only specific authority to compel the owner to give up temporary possession of his property is founded upon the allegation of value in the answer. But the intent of the Legislature was to permit the plaintiff to obtain possession upon the payment of a sufficient sum to compensate the owner fully; and if the conduct of the defendant, whether in good faith, inadvertently or maliciously, renders a strict compliance with section 3380 impossible, the general authority conferred upon the court by section 3382 is sufficiently comprehensive to enable the obvious purpose to be accomplished. As was said in People ex rel. Wood v. Lacombe (99 N. Y. 43, 49): "In the interpretation of statutes, the great principle which is to control is the intention of the Legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute as well as other circumstances."

While the Condemnation Law by chapter 95 of the Laws of 1890, was made a part of the Code of Civil Procedure, yet section 3380 of that Code in its present form is a new provision. The right, however, to obtain temporary possession of the owner's land

by a railroad company upon the payment into court of a sufficient sum, where pending the proceeding for condemnation it developed that the title of the defendant was defective, had been operative for some time. (Laws of 1850, chap. 140, § 21, as amd. by Laws of 1869, chap. 237; Laws of 1877, chap. 224, and Laws of 1881, chap. 649. See also Laws of 1875, chap. 606, § 24.) The pith of that statute composes section 3380 of the Code of Civil Procedure. The Legislature, in re-enacting the substance of the law, did not intend to vest an obstructing owner with full power to render its operation ineffective. He cannot prevent the adoption of that part of the statute which inures to the benefit of the public by refusing to avail himself of that portion which is beneficial to him.

Nor is section 3380 of the Code of Civil Procedure violative of section 6 of article 1 of the State Constitution. The property of the defendant is not taken from her without compensation. The essence of the section permitting possession to be acquired is that the owner must be assured the payment of the full value of the land of which he is deprived. It has long been held that payment. to the owner personally is not an essential prerequisite to the taking of the land by right of eminent domain providing only compensation is made certain. (Bloodgood v. Mohawk & H. R. R. Co., 18 Wend. 9.)

The plaintiff was created pursuant to chapter 722 of the Laws of 1894. Its sphere of operation was originally confined to the counties of Erie, Niagara and Orleans, but since its incorporation its certificate has been amended, whereby it is claimed the range of its territory and the scope of its business have been enlarged. Its purposes, as disclosed in section 8 of the act mentioned, are the supplying of pure and wholesome water and electricity to the towns, villages and cities along its route, and the generation, accumulation, transmission and distribution of electricity for a large number of objects enumerated in said section. It is given authority to take water from Niagara river (§ 10); to use the streets and highways and lay pipes therein (§ 11); to acquire land by purchase or condemnation proceedings (§§ 12, 13). Its power is coincident with that of other corporations organized for the profit of the incorporators, but designed also for the benefit of the public.

The plaintiff has already entered into a contract for the construction of a canal, which is in process of building, and which when completed will be of sufficient capacity to generate 200,000 horse power. It has entered into an agreement with a Canadian