Peck v. Schenectady Railway Co.

The purpose of this action was to enjoin the defendant from building an electric railroad upon Washing

That the plaintiffs were the owners in fee of the portion of Washington avenue described in the complaint, and that the defendant, without the consent and obviously against the protest of the plaintiffs, threatened and intended to construct and operate an electric railroad upon tracks laid upon the surface of that street and to supply power therefor by the erection of poles and wires to conduct the electricity necessary for the operation of its road from its powerhouse to and along such street was in effect found by the trial judge and unanimously affirmed by the Appellate Division. Therefore, in determining this appeal, those facts must be regarded as conclusively established.

The primary and the most important question involved upon this appeal is whether the use of a city street for the purposes of a street surface railroad operated by electric power, imposes an added burden upon the property rights of the owners of the fee subject to the jmblic easement for street purposes. If this were an open question in this state, much could be said to sustain the contention of the appellant that the acquisition of the use, from the owner, of the land for a public street, includes the right to apply it to all the beneficial public uses for which it may be adapted, not only at the time of its acquisition, but such as may arise in future. It is strenuously claimed that an electric surface street railroad in a city, as constructed and operated at the present time, in its use by, and by reason of its necessity to,'the people of the municipality, constitutes an essential feature not only of public use but of street use, and that such means of transportation have largely superseded the former use of streets, and are now the methods by which a great portion of the people are transported, and, hence, as the street was originally established for the accommodation of the traveling public the change in methods of transportation does not constitute anew servitude but only a new and necessary method of accomplishing the

In this state, however, the clear weight of authority is adverse to that contention. Craig v. Rochester City & Brighton R. R. Co. ( 39 N. Y. 404 ) is an important and leading case upon the subject. The plaintiff in that action was the owner of a lot on East avenue in the city of Rochester extending to the center of the street. The defendant asserted the right to construct a horse railroad therein without obtaining the plaintiff’s consent or instituting proceedings to acquire the right to construct it across his premises. The trial court granted a perpetual injunction restraining the railroad company from building its road over the portion. of the street of which the plaintiff owned the fee. The defendant appealed from the decision of the trial court to the General Term, where the judgment was affirmed, and then appealed to the Court of Appeals, where the decisions below were also sustained. There, as here, it was claimed that the defendant possessed the right to construct its railroad through the streets of a city, by virtue of the consent of the common council, without making compensation for damages to the owners of lots along the street over which the railroad passed. It was there urged that the building of such a road was not an infringement upon the rights, or any injury to the interests, of the owner in fee of the land in the street, as it was only a mode of exercising the public right of passage with which he had parted, and not such an additional or further appropriation as entitled him to pecuniary remuneration. This court decided adversely to that claim, and held that establishing and running a horse railroad in a public street of a city was an imposition of an additional burden upon the land of an adjoining proprietor covered by such street, and that the latter could maintain a suit to perpetually enjoin the railroad company from laying down its track and from running its

In the Oraig case the appellant insisted that there was a distinction between a railroad operated in the streets of a populous city by steam and one operated by horse power, and that the rule laid down in the former cases was inapplicable to the latter class of roads. This court, after examining the question, while conceding that there was a difference between • a steam road and a horse railway, in the manner in which the road was constructed and the speed with wliieli the cars were propelled, said: “ But there is precisely the same exclusive appropriation of the track for the purposes intended in each case, to the absolute exclusion of all who may interfere with its mode of operation,” and. distinctly held that the building and operation of a horse railroad in the public streets of a city imposed an additional burden upon the land of an adjoining proprietor covered by a street, and that such a proprietor could maintain a suit to perpetually enjoin a horse railroad company from laying- down its track in the street and from running its cars over it. While the appellant contends that the Oraig case does not decide that the construction of a street surface railroad operated by horse power entitles the. owner of the fee of the street to compensation or to the relief awarded in the case at bar, we think otherwise. Since the decision in the Oraig case, it has been regarded as an author

In Bloomfield & R. Natural Gas Light Co. v. Calkins ( 62 N. Y. 386 , 388) the question of the right of an owner of the fee of land in streets was again quite fully discussed, and it was there said : “ The introduction of railroads in this state presented the question whether a railroad corporation could use a public highway for the purpose of constructing and running its road, and it was held that it imposed an additional burden upon the soil of the highway besides what was included in the public easement; that the legislature had not the power to make such imposition within the meaning of the constitutional provision, which forbids the taking of property of the owner of the fee without compensation; and that the company can derive no title by any act of the legislature, or of any municipal authority, without the consent of the owner of the fee, or without the appraisal and payment of damages in the mode prescribed by law. (Fletcher v. Auburn and S. R. R. Co., 25 Wend. 463 ; Trustees of Presbyterian Society in Waterloo v. Auburn and Roch. R. R. Co., 3 Hill, 567 ; Davis v. Mayor, etc., of N. Y., 14 N. Y. 506 ; Williams v. N. Y. C. R. R. Co., 16 id. 97; Wager v. Troy Union R. R. Co., 25 id. 526.) .These cases settle the law, beyond peradventure, as to the right of railroad corporations to appropriate public highways to their benefit without compensation. At a later day an attempted distinction was sought to be made in favor of horse railroads in cities, and the question as to the right of these corporations to use the streets of cities for their roads and cars was presented in Oraig v. Rochester City and Brighton Railroad Go. ( 39 N. Y. 404 ) and it was there decided, after full consideration by the Court of Appeals, that, the running and establishing of such a road, in the public streets of a city, was an imposition of an additional burden on the land of the adjoining proprietor, for which compensation must be made.” In Fobes v. R., W. & O. R. R. Co. ( 121 N. Y. 505 , 515) this general question was discussed by Judge Peckham, who said that, under the decisions of the courts of this state, “ To construct even a

The doctrine of the Craig case has now become a rule of property which this court cannot in justice overthrow. Although that case was decided by a divided court, yet it is obvious that the principle there stated has since been generally if not universally recognized as the law of this state and been followed with great uniformity by its courts, as will be seen by reference to the cases to which we have already referred. Therefore, notwithstanding the fact that many jurisdictions have held a contrary doctrine, still, a principle which has been so thoroughly engrafted upon the law of our own jurisprudence should not be lightly disregarded. We are of the opinion that the contention of the appellant in this respect cannot and ought not to be upheld. The doctrine that a horse railroad invades the property rights of the owner of the fee in a public street' and imposes upon him a burden for which he is entitled to compensation, being firmly established, it obviously follows that the building and operation of an electric road must be controlled by the same principle. Assuming, as we must, in view of'these authorities, that the defendant’s entry upon the plaintiffs’ property in the street would constitute a trespass upon their property rights, it follows that the judgment appealed from must be affirmed.

The defendant, however, insists that if the proposed construction and operation of its railway would be an additional burden upon the plaintiffs’ land, yet the only relief to which they are entitled is compensation for the damages which they may thereby sustain, and, therefore, as they have invoked the equitable powers of the court, it should compel them to

The judgment which was entered upon the decision of the trial court and affirmed by the Appellate Division provided that “ The defendant, its agents and servants be, and they are, perpetually enjoined from operating a railroad upon any of the said part of Washington avenue, and from doing any act tending thereto and thereabout, and from suffering any such act to be done in its or their name or behalf.” It was evidently claimed at the Appellate Division that the provisions of this injunction were too broad and would, in effect, restrain the defendant from an entry upon the plaintiffs’ land, even after a right to do so was acquired by condemnation. That court was satisfied that the judgment would have no such effect, and that if so it might be amended by application to that court. While we are disposed to think that the judgment would not have the effect claimed, still, it may well be modified by providing that it shall not interfere with or restrain the defendant from instituting proceedings for condemnation of the plaintiffs’ rights, and that when the rights of the plaintiffs shall be thus acquired and the compensation awarded paid, it shall not be effective to restrain the defendant from entering upon such premises for the purposes for which they were condemned.

The judgment should be modified by adding thereto a provision that if the defendant shall acquire a right to the use of the land in question for street railway purposes the judgment shall not be regarded as effective to restrain it from entering upon such premises for the purpose of building; maintaining and operating its railroad thereon, and as so modified the judgment must be affirmed, with one bill of costs to the plaintiffs.

(dissenting). I do not disagree with my associates as to the scope of the decision in Craig v. Roch. & C. B. R. R. Co. ( 39 N. Y. 404 ), nor do they disagree with my contention that that decision was a mistake. If the question

That it is the law in nearly all other jurisdictions that the building and operation of a street surface railroad upon an existing street of a city for the accommodation of local travel does not impose an added servitude upon the lands abutting upon the street, for which the owners of the fee are entitled to compensation," is supported by the following authorities: Barney v. Keokuk ( 94 U. S. 324 ); Taylor v. P. K & Y. Street Railway ( 91 Me. 193 ); Attorney-General v. Metropolitan R. R. Co. ( 125 Mass. 515 ); Howe v. West End Street Ry. Co. ( 167 Mass. 46 ); Elliott v. Fair Haven and Westville R. R. Co. ( 32 Conn. 579 ); Canastota Knife Co. v. Newington Tramway Co. ( 69 Conn. 146 ); Taggart v. Newport Street Ry. Co. ( 16 R. I. 668 ); Hinchman v. Paterson Horse R. R. Co. ( 17 N. J. Eq. 75 ); Halsey, v. Rapid Transit Street Ry. Co. ( 47 N. J. Eq. 380 ); Paterson Ry. Co. v. Grundy ( 51 N. J. Eq. 213 ); West Jersey R. R. Co. v. Camden, ete., Railway Co. ( 52 N. J. Eq. 31 ); Kennelly v. Jersey City ( 57 N. J. L. 293 ); Roebling v. Trenton Pass. Ry. Co. ( 58 N. J. L. 666 ); Lockhart v. C. S. Railway Co. ( 139 Penn. St. 419 ); Rafferty v. Central Traction Co. ( 147 Penn. St. 579 ); Philadelphia, Wilmington and Baltimore R. Co. v. Wilmington City Ry. Co. (38 Atlantic Rep. 1067); Poole v. Falls Road El. Ry. Co. ( 88 Md. 533 ); Green v. City & Suburban Ry. Co. ( 78 Md. 294 ); Koch v. North Av. Ry. Co. ( 75 Md. 222 ); Hodges v. B. U. Pass. Ry. Co. ( 58 Md. 603 ); Reid Bros. v. Norfolk City R. Co. ( 94 Va. 117 ); Richmond Traction Co. v. Murphy ( 98 Va. 104 ); Merrick v. L. R. R. Co. ( 118 N. C. 1081 ); Louisville Bagging Mfg. Co. v. Central Pass. Ry. Co. ( 95 Ky. 50 ); Smith

How the text writers view the decisions of the courts of this country will appear from the following quotation from Lewis on Eminent Domain (2d ed. vol. 1, § 115, f.):

“ It has been determined in numerous decisions and without dissent, except in the state of Hew York, that the use of a street by a horse railroad constructed and operated in an ordinary manner, falls within the purposes for which streets are established and maintained, and, consequently, that for any damages resulting from such use the abutting owner of property can recover nó compensation whether the fee of the street is in him or in the public.”

Other text writers are to the same effect. (2 Dillon on Municipal Corporations [4th ed.], § 722; Joyce on Electric Law, § 341; Cooley on Constitutional Limitations, [6th ed.], 683; Keasbey on Electric Wires [2d ed.], § 145; Booth on Street Railways, § 83.)

While it may be conceded that the isolation of our courts

I advise a reversal of the order.

Gray, O’Brien, Yann and Cullen, JJ., concur with Martin, J.; Werner, J., concurs with Parker, Oh. J.

Judgment accordingly.