In re the Boston & Albany Railroad

The only fact material upon this appeal is that the lands, sought to be taken for the purposes of the railroad corporation, were donated to the village of Greenbush by the former proprietors as and for a public park, and dedicated to the use of the public as such. The evidence bearing upon the necessities of the corporation for more lands in the vicinity of these for its purposes, and the comparative fitness of those proposed to be taken and other lands near them, can hardly be considered by us. To a large extent the company must be left, under the delegation of power to it by the State, to determine the extent of its wants, and fix upon the particular location of the lands to be taken, subject to this qualification, that the purposes for which the lands are proposed to be taken must be those for which the company was incorporated, and strictly within its chartered rights. A reasonable necessity must be shown, or, in other words, there must not be an evident and apparent absence of all occasion or necessity for the property for the legitimate purposes of the corporation. (In re N. Y. C. R. R. Co. v. Kip, 46 N. Y., 553 .)

The question here grows out of the character of the lands proposed to be taken, and the title by and purposes for which they are held by the village of Greenbush. They are not the property of individual citizens, neither are they held and owned by the village of Greenbush as its absolute property, but upon a special trust and for public use. The village could not dispose of them or divert them from the purpose to which they were dedicated. (Anderson v. Rochester, etc., R. Co., .9 How. Pr. R., 553.)

That the legislature has control.of and power overall pro

Questions have arisen, in some instances, whether the construction of a railroad upon the surface of a public highway or street was an appropriation of the land to another and different use from that for which it had been taken and used, the claim being that the two uses were of the same general character, the diversity being in the manner and not iu the character of the use, and that the construction of the railroad was not, therefore, a new or different appropriation of the property. That question is not in this case. It is not denied that a taking of this property by the applicant, and a user of it for the purposes of the corporation, is utterly inconsistent with its use as a public park, and that the village of Green-bush, as the trustees, and the people as the cestuis que trust, will be absolutely deprived of all benefit in and use of the property, and the possession of the railroad corporation will be exclusive as of property taken under the act from private individuals. (Laws of 1850 ch. 140, § 17.)

The sole question, then, is whether the legislature has conferred upon the- applicant the power to enter upon and take possession of property already held and dedicated by authority of law to one public use, for another and entirely different use, also declared to be public. The authority must be sought in the statutes by which all the powers which railroad corporations may exercise over property, without the consent of the owners, are conferred, and if not found, then it does not exist. It must be expressly conferred, that is, in direct terms or by necessary implication; and the implication does not arise, if the powers expressly conferred can, by reasonable intendment, be exercised without the appropriation of property already actually held and

The power is general to acquire title to “ any real estate required for the purposes of the incorporation.” (Act of 1850 [supra], § 13.) But this does not, prima facie or presumptively, include property already in public use under the sanction of the law. There is no implied supremacy of this particular public use over every other known to the law, so as to permit a railroad corporation, without the further and direct sanction and permission of the legislature, to override and subvert every appropriation of property to other public uses. Section 14 of the act prescribes the procedure for the appropriation, and directs that the petition shall, among other things, state that the company has not been able to acquire title thereto, and the reason of such inability; and the inability recognized in section 13, is that of being unable to agree for the purchase. It is said, and I think with entire accuracy, in Anderson v. Rochester, etc., R. R. Co. (supra), although not necessary to the decision, that the right of way over a public park or square, set apart and held for public use, cannot be acquired by a railroad corporation under these provisions. But the same distinguished judge intimates that title or a right of way may be acquired over property thus held by a municipal corporation upon such a trust, under section 26 of the same act, authorizing and regulating proceedings for taking lands when the title is vested in any trustee, not authorized to sell, or in any infant, idiot, lunatic, etc. The plaintiff was defeated in that action for want of title to sue, and hence the intimation was obiter, although entitled to great respect by reason of the character of the judge from whom it emanated. But I am not able to concur in his views. The trusts meant by the provision were private and individual trusts, and not public trusts or property held by public corporations for public use. But one class of trusts was intended, and that was the class of private trusts within the same category and the same general rules as are applicable to individual and private property held by

These provisions confer all the authority that exists in railroad corporations to enter upon and take possession of property held for public use. Another section (§ 25) authorizes the taking lands owned by the State or any county or town, but this has relation to property of which the State or a county or a town is the proprietor, and not that held in trust for the use of the public. Every power granted in terms can be exercised, and all the purposes for which the corporation was created can be answered, without the exercise of this power to take property held by a public corporation for the use of the public as a park or common, and hence the power does not result by necessary implication, and, not, being granted in express terms, does not exist. People v. Law ( 34 Barb., 494 ) and Same v. Kerr ( 27 N. Y., 188 ) were under statutes expressly authorizing the use of the public streets for a railroad track (chaps. 411 and 513 of the Laws of 1860), and the only question was as to the relation of the city of ISTew York to the streets, and the nature and extent of private or individual interests in the streets of that city. Armington v. Barnet ( 15 Vt., 745 ) and West Pwer Bridge Co. v. Dix (16 id., 446; S. C., 6 How. U. S. R., 507) arose under a statute of Vermont expressly permitting, when in the judgment of the Supreme Court or County Court the public good required

This leads to a reversal of the order and a denial of the .application.

All concur.

.Order reyersed, and ordered accordingly.