In re New York, West Shore & Buffalo Railway Co.

Headnote

These were proceedings to acquire title to certain uplands on the west bank of the Hudson river under the General RaiL road Act. The owner of the land sought to be condemned, objected to the report of the commissioners fixing the damages, alleging that the railroad company proposed to build a solid embankment across a bay, and in front of the premises of the owner, cutting off a wharf belonging to her from the river, and depriving her of the use thereof, and that no damages were awarded to her therefor.

The following is the mem. of opinion:

“ It is claimed that the building of the embankment and the laying of the railroad track across the bay, thus cutting off the dock of the appellant, is a violation of section 28, chapter 140, Laws of 1850; that this dock has been used by appellant and her ancestors for more than forty years for freighting purposes,

etc.; that the railroad company have built a solid embankment, on which trains are running, across the bay, which has cut off all communication between appellant’s wharf and the water inside and the river outside of the embankment.

“ This point does not arise upon the papers presented on this appeal. The petition asks to take only a piece of upland described in the schedule by courses and distances, and as containing four and fourteen one-hundredths acres, more or less. The respondent did not apply for any right to cross the bay or in any way interfere therewith. It only sought to take a piece of upland which was described in the petition.

“ In regard to the taking of this land there can be no valid legal objection to the proceedings. As to any interference otherwise the remedy is not by an appeal from the order in this matter. If the petitioner has erected a nuisance in front of the appellant’s wharf, which unlawfully interferes with her rights and privileges, she can proceed by an action at law against it for damages, or by an equitable action to remove the same. She has no redress upon this hppeal.

“No other question is raised which requires examination.

“ The order should be affirmed, with costs./’