
    In the Matter of the Application of the United Traction Company for the Appointment of Commissioners, etc.
    Third Department,
    May 8, 1907.
    Railroad.—public convenience and necessity for extension of street' railway—ownership of right of way immaterial — when street not part of park system. .
    In determining as to the public convenience and necessity for the extension of a. railroad the commissioners may take into consideration all of the circumstances, the probable growth and convenience of the population, and the fact that there is a territory lying beyond which at an early day must be accommodated. It is immaterial whether or hot the petitioner actually owns a right of way over a small portion of' the proposed extension.
    - Although city authorities improved a street as an approach to a park, the street docs not thereby become a part of the park system and exempt -from condemnation for street railway purposes.
    
      Lewis E. Ga/rr and P. G. Pugam, for the petitioner.'
    
      Ltcmdall L. Le Boeuf \ for the contestants.
   Kellogg, J.:

This is an application to confirm the determination of the commissioners appointed herein as to the public convenience and necessity of the extension of the petitioner’s road 1,500 feet along Western avenue -in the city of Albany. " Ko question is raised as to the regularity of the -proceedings.

The principal question is raised upon the merits as to the public convenience and necessity. The commissioners seem to have given the matter careful consideration. They have undoubtedly inspected and are familiar with the locality and the exact physical conditions existing. Their determination is fairly sustained and supported by the evidence. "

The proposed road is an extension for. 1,500 feet of an existing road. Upon the trial evidence was offered tending to show that from the point where the proposed extension- ends the petitioner owns a right of way along Western avenue for a long distance, and that it is proposed, in due time, to extend the road along its right of way to and beyond the city limits. It is now claimed that this . was error; that the evidence did not show that the petitioner owned the right of way for the proposed future extension, and that that was a subject which was prejudicial and ought not to have been .before the commission. The Western Turnpike Company had this right of way and conveyed part of it to the city and part of it by mesne conveyance has come into the hands of the petitioner. I think it is immaterial whether the petitioner owns this right of way or not. It is a proper circumstance to.be considered by the commission that the territory beyond the 1,500 feet is such that it would permit an extension, and that an extension will be necessary. They have the right to take into- consideration all the circumstances, the probable growth, the convenience of the people and the fact that there is a territory beyond the 1,500 feet which at an early day ' must be accommodated,’ and that it can only be accommodated after this 1,500 feet is built upon. -In my judgment, therefore, it was immaterial whether there is or is not a right of way along the proposed future extension. The fact that there is territory there upon which a road should or may be built is material, and one of the circumstances proper to be considered. If the petitioner owns the right of way perhaps the road might be built earlier than it otherwise would; if it did not own it, it would have to acquire it. I seo no error in that direction.

The plank road company formerly operated its road over a part of this 1,500 feet, and by chapter 445 of the Laws of 1876 it was authorized to convey that part of its road to the commissioners of . Washington park, and. they were required to improve that portion of the road “ as an approach ” to the park, the statute providing: “ But nothing herein contained shall tie construed as authorizing the said commissioners to close the said portion of tire said road or to exclude the public from, the use thereof as a highway.”

It was conveyed, and the park commissioners .improved the road, planting trees alongside of it, paving it with stone blocks, and made it a high-class street approaching the park.' The point in question is nearly a mile distant from the park. . It is claimed that this part of the street thereby became a part of the park system and not subject to condemnation for street railway purposes. It is assumed that if it is a park it is not the subject of condemnation for this purpose. But clearly it-is not a parle ; it is subject to the highway law of the city’ and is simply a street improved a little more than other streets, because it approaches and is a good.drjveway to the park. . ,

A consideration of the whole case shows no error to the. prejudice of the property owners. The determination of the commissioners is, therefore, confirmed.

Report of commissioners unanimously confirmed, without costs.  