Village of Canandaigua v. Benedict

Dismissal of a condemnation pi'oeeeding, without prejudice to another proceeding &e—; an appeal by the defendant will be dismissed. Where, after a trial before a referee of the issues raised by an answer to a petition in condemnation proceedings, a report has been made and judgment' has been entered dismissing the petition, with costs, but “ without prejudice to the pdaintiff’s right to begin other proceedings,” an appeal therefrom by the defend- • ant will be dismissed.

Appeal -by the defendant, Robert 1VL Benedict, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Ontario on the 3d day of September, 1896, upon the report of a referee, as determines : “ (1) That the map tiled by the plaintiff board of water commissioners is a substantial compliance with the statute. (3*) That the construction, operation and maintenance of the- aforesaid pole line is authorized by the statute, and the plaintiff will have the right to construct, operate and maintain the ' same upon taking proper proceedings to acquire the defendant’s land therefor, or such interest therein, as may be necessary.” The notice of appeal was dated September 25, 1896. In the year 1895 the hoard-of water commissioners of the village of Canandaigua adopted a plan for supplying the village and its inhabitants with water under the provisions of chapter 181 of the Laws of 1815. The plan contemplated the erection of a power house at the foot of Main street in said village, near the foot of the lake, the construction of a reservoir oh the west side of the lake, about 3,500 feet from the lake, and a pump house on the lake shore, the reservoir and pump house being about three and a half miles from the power house, and the transmission of power from the power house to the pump house by electricity, thereby forcing water from the lake to the reservoir, to be distributed from that point, to and through the village by gravity pressure, through mains and- pipes. The pole line extends upon the lands of several different owners covered by the highway, and they severally conveyed the required easement to the village, except the defendant, who declined to receive a money compensation, and demanded the right to the use of water to be conveyed as long as the mains and pole lines should remain. On the 16th of July, 1895, the plaintiff’s petition was prepared, asking that it be adjudged that the public use requires the condemnation of the real property described, and that it be permitted to hold the same for the public use specified upon making compensation therefor. The petition was presented to a Special Term. The defendant prepared an answer which was verified on the 27th of July, 1895. Upon reading the petition and the answer of Benedict (defendant), a reference was made to Abraham Benedict, Esq., “ to hear, try and determine the issues raised by the answer of the defendant Jtobert M. Benedict herein.” That order was entered on the 23d of August, 1895, in Ontario county. On the 26th of August, 1896, the referee made a report stating several conclusions of law, the fourth of which was as follows : “ That the defendant Benedict is entitled to judgment dismissing the proceedings, with costs, but without prejudice to the plaintiff’s right to begin other proceedings, or to apply to the court for such relief as it may be advised.” Upon that report the defendant entered judgment September 3,1896, from parts of which he has appealed. The judgment, among other things, contains the following language : “ Ordered and adjudged, that the plaintiff’s proceedings herein be dismissed, without prejudice to the plaintiff’s right to begin other proceedings, or apply to the court for such relief as it may be advised, and that the defendant Bobert M. Benedict recover of the plaintiff, Village of Canandaigua, the sum of two hundred and seventy-six dollars and twenty cents, his costs and disbursements herein.”