Craig v. Rochester City & Brighton Railroad

The Defendant in this action claims the right to construct a horse-railroad through the streets of the city of Rochester, by virtue of the consent of the Common Council of said city, without making any compensation for damages to the owners of lots along the street in which the road passes. The claim thus ui’ged is based upon the ground, that the building of such a railroad is not an infringement upon the rights, or any injury to the interests, of the owners of the land adjoining, and that it is only a mode of exercising the public right of passage, with which they have parted; and not such an additional or further appropriation as entitles them to pecuniary remuneration.

I am inclined to. think that the question involved in this case

In the old Supreme Court, in the case of The Trustees of the Presbyterian Society in Waterloo v. The Aub. & Roch. R. R. Co. ( 3 Hill, 567 ), the doctrine was laid down, that the laying out of a highway gives the public a mere right of passage, with the powers and privileges incident to such right; that the owner of the soil is not thereby divested of his title to the land, and that a railroad company was bound to make compensation for constructing its road across the highway. (See also, Fletcher v. The Auburn & Syracuse R. R. Co., 25 Wend. 462 .) The same principle was again more distinctly asserted in Williams v. N. Y. C. R. R. Co. ( 16 N. Y. 97 ), and it was held that an appropriation of a highway by a railroad company is the imposition of an additional burden upon, and the taking of the property of the owner of the fee, within the meaning of the constitutional provision, which forbids such taking without compensation, and that the company can derive no title by an 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.

In the case last cited, an action was brought to recover damages for running cars upon the railroad, and to restrain the Defendant from enlarging upon and running over a public street in the city of Syracuse in front of the Plaintiff’s premises, and it presented the distinct question, whether the dedication of land to the use of the public as a highway precludes the owner of the fee, subject to the easement, from maintaining an action against a railroad company, which without any consent, or the appraisal of damages, enters upon and occupies such highway with the track of the road; and it was decided that the action was maintainable.

The same principle here asserted has also been upheld by other adjudications of this Court. In Davis v. The Mayor of New York

These cases must be considered as settling the question beyond peradventure, and conclusively, that the occupation and use of a street by a railroad company, operated by steam, and in the ordinary manner in which such roads are constructed and carried on, is an appropriation of the highway for a new and distinct purpose, entirely foreign from its original object, and which entitles the owner to compensation. The position cannot be controverted. An attempted distinction is, however, sought to be made between railroads operated by steam, and those which are simply used by horses as a motive power, in the streets of populous cities; and it is contended that the rule laid down is entirely inapplicable to the latter class of railroads, which of late years have come into use, and which are increasing in numbers as the wants and necessities of large and populous communities demand more expeditious and more extended means for the transportation of passengers between the widely separated and distant portions of such communities.

The position thus taken is not entirely without authority to uphold it, and our attention has been called to several cases decided in the Supreme Court of this State, as well as to some decisions of the Courts in other States, which sustain the doctrine contended for by the Defendant’s counsel. In another connection I shall have occasion to refer to the cases relied upon' by the Defendant’s counsel, and without examining them in the present stage of the discussion, will proceed to consider how far the cases decided by this Court affect the question now present.

The effect of the decisions which I have cited is fully considered in the able opinions of the General Term delivered upon the decision of the case now considered, and the principle enunciated by

Without discussing them at length, I shall deem it sufficient to refer briefly to the case of Wager v. The Troy Union R. R. Co. (supra), which had been but recently decided, and was not reported when this case was decided at General Term. In that case the former decisions are indorsed and reaffirmed, and the learned Judge who wrote the opinion refers to the distinction claimed to exist between railroads operated by steam and horse power in the following explicit terms: “ With a single track, and particularly if the cars used upon it were propelled by horse power, the interruption of the public easement in the street might be very trifling, and of no practical consequence to the public at large. But this consideration cannot affect the question of right of property, or of the increase of burden upon the soil. It would present simply a question of degree in respect to the enlargement of the easement, and would not affect the principle, that the use of a street for the purpose of a railroad, imposed upon it, is a new burden.”

If these views can be considered as embodying the opinion of the Court in the case last cited, then they are entirely decisive of the question presented, and must be considered as controlling, and render any further inquiry entirely needless. But, as the distinct point which we are now considering was not presented, it may be well to look at the question, upon principle, in the light of the decisions applicable to railroads propelled by steam, to which I have adverted.

The ground upon which these eases are decided is, that the use of the land for a railroad imposes an additional burden upon the owner of the fee. I am at a loss to see any apparent distinction in the application of the rule between cases where steam power is employed and those cases where the road is operated by horse power. It is true there is some difference in the manner in which the road is constructed, and in the speed with which the cars are propelled, at times; but there is precisely the same exclusive appropriation of the track for the purposes intended in each case,

As was held in Hegan v. The Eighth Avenue R. R. Co. ( 15 N. Y. 380 ), the company has the exclusive right of the track while cars are passing, and all others must keep out of their way, and if a party is injured while they are proceeding at a reasonable and lawful speed an action cannot be maintained against the company for the injury. This privilege of laying and using the track in such a manner confers upon the company a right to the use and enjoyment of the track which precludes other vehicles while the operations of the company in the use of the track demand their exclusion. Such a right is, I think, inconsistent with the nature of the easement acquired by the public. In Williams v. The N. Y. C. R. R. C., Selden, J., after stating the distinction between the two uses to which the highway is applied by converting it into a railroad track, proceeds to argue, that by means thereof two easements are created, one vested in the jrablic, which has been paid for, and the other in the company, and remarks: “ These easements are property, and that of the railroad company is valuable. How was it acquired ? It has cost the company nothing. The theory must be that it is carved out and is a part of the public easement, and is therefore the gift of the public. This would do if it was given solely at the expense of the public. But it is manifest that it is at the joint expense of the public and the owner of the fee. Ought not the latter, then, to have been consulted? ” There is much force, I think, in these suggestions, and it is difficult to see how they can be answered satisfactorily and according to any well-settled legal principle. If the reasoning of the learned Judge is correct, then the same rule is applicable to each class of railroads, the difference in the use being only in the degree. ( 25 N. Y. 533 .)

The use of a railroad, no matter how it is operated, whether by horse or steam power, necessarily includes, to a certain extent, an

Instead of being the exercise of a right of passage and repassage over a highway or a street, it cannot, I think, be denied, that it is sometimes an obstruction to travel, and an infringement upon the rights of the public and owmers of land. In narrow streets, where the rails of the road border close upon the sidewalk, it not only interposes obstacles to the traveller, but inflicts injury upon the lot owner, by blocking up the way, and preventing a free access to the premises. The large and unwieldy vehicles which are used, which can only proceed upon a track laid for that purpose, with no capacity to turn out, so as to avoid or accommodate ordinary carriages, are often a source of annoyance and obstruction to the free passage of horses and carriages, for periods of greater or less duration, arid are inconsistent with the use of an open and free passage of the highway.

I have examined the decisions of the Supreme Court of this State, which have been cited in support of the Defendant’s theory. ( 33 Barb. 420 ; 35 id. 304; id. 373; 37 id. 35.) In none of them was the distinct question now considered presented and adjudicated, although some of the opinions maintain the distinction now asserted as existing between the two classes of railways. The eases referred to are also examined and criticised in the opin

In The People v. Kerr, one of the cases cited, which was subsequently carried to the Court of Appeals, and is reported in 27 N. Y. 188 , the decision was put upon the ground that the fee of the street, as against the Plaintiffs, was held by the corporation of New York City, and that the plaintiffs, other than the people,. had no property in the land forming the bed of the street in front of their respective premises, to be protected by the constitutional limitation upon the right of eminent domain.

The decisions of the Courts of other States, to which our attention has been directed, even if applicable, can have no weight in overthrowing the adjudications of our own Courts, and do not, therefore, require examination.

The principle decided in Benedict v. Goit ( 3 Barb. 459 ; and approved in 14 N. Y. 516 ), that a highway does not cease to be such, for general purposes, by being converted into a turnpike or plank-road, which has been invoked, does not aid the Defendant. In the latter case, the general right of the public to use the road remains unimpaired. The change effected is, that the general public, in consideration of the payment of certain tolls, is relieved from the burden of keeping it in repair. Every citizen has the same right to travel over the turnpike .or plank-road in his own conveyance, and the material used in making the latter is a mere improvement of the road, for the benefit of the whole public, without a special appropriation of any part or portion to the use of a particular class of carriages owned by the company, to the exclusion of others who may desire to use that portion at the same time, and, as must be conceded, at times to the obstruction and hindrance of persons who may be travelling, if not to those whose lands are located on the line of the road.

Judgment affirmed, with costs.

JOEL TIFFANY, State Reporter.