
    Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York Relative to Acquiring Title to East One Hundred and Sixty-first Street, from Elton Avenue to Mott Avenue.
    (Supreme Court, New York Special Term,
    February, 1907.)
    Eminent domain — Property subject to appropriation — Taking by municipality of railroad lands.
    Eeal estate, acquired and used by a railroad company and necessary for the proper transaction of the business of the company, is dedicated to a public -use and cannot be taken for street purposes except by special legislative authority; and both section 95S of the Consolidation Act (L. 1882, eh. 410) and the provisions of the Greater New York charter (L. 1897, ch. 378, as amended in 1901), authorizing the city to acquire land for street purposes, being general statutes, are not sufficient to warrant condemnation thereof for a street.
    
      Proceeding to acquire title to land required for widening One Hundred and Sixty-first street, from Elton avenue-to Mott avenue.
    William B. Ellison, Corporation Counsel (John P. Dunn and Thomas C. Blake, of counsel), for city of New York.
    Ira A. Place (Robert L. Luce, of counsel), for respondent.
   Newburger, J.

This is a proceeding instituted by the mayor, aldermen and commonalty of the city of Hew York, to acquire title to land required for widening One Hundred and Sixty-first street from Elton avenue to Mott avenue. The land in question is a strip 40 feet in width and about 640 feet in length, comprising the northerly end of the Hew York Central and Hudson River Railroad Company’s Mott Haven yard, used as a freight depot, storage yard and place for cleaning and putting in order for traffic passenger ears. The city proposes to acquire the fee of the land and use it for street purposes.

The respondent, the Hew York Central and Hudson River Railroad Company, is a corporation organized under the general laws of the State and, by consolidation with and leasing of several railroads, became the owner of a railroad from Forty-second street northerly crossing One Hundred and Sixty-first street.

The Hew York Central and Hudson River Railroad Company, the Hew York and Harlem Railroad Company and the Hew York, Hew Haven and Hartford Railroad Company, under various agreements, use the same terminal station.

In 1887 the Hew York and Harlem railroad had been constructed and was then operated at the grade of existing streets through the then Twenty-third and Twenty-fourth wards of the city of Hew York (now the borough of the Bronx).

In that year chapter 821 of the Laws of 1887 was passed, conferring upon the park department the- power to change . the location, width, grades, etc., of any street, and to discontinue and close any street, avenue, road, etc., or any part thereof, and change any plan or plans for sewerage and drainage; and the department of public parks was also authorized to agree with the Mew York and Harlem Railroad Company for the depression of its tracks and the changing of the grade of its railroad in the said wards. See Laws of 1887, chap. 721, § 1, subds. 1, 2.

Pursuant to the provisions of this act, contracts were made for the depression of the tracks of the railroad in such manner as to avoid the crossing of streets at grade. The company at that time acquired all the land bounded northerly by One Hundred and Sixty-first street, as it then existed, sixty feet in width, easterly by Morris avenue, southerly by the Mew York and Harlem railroad, and westerly by Sheridan avenue. At the time of the acquisition of these lands, no streets or avenues were actually opened through any part of them. Certain streets, however, were shown on the map.

On the 11th day of February, 1889, the railroad company applied to the depa.rtm.ent of public parks to discontinue all these streets and avenues, which application was granted by the board after the railroad company had agreed to depress the portion known as the Port Morris branch. Thereupon the company devoted the entire tract of land to station and yard purposes.

By the passage of chapter 545 of the Laws of 1890, jurisdiction of the streets in the Twenty-third and Twenty-fourth wards of this city was transferred from the department of parks to the commissioner of street improvements. In pursuance of the power thus vested in him, the new commissioner proceeded to carry' out the provisions of this act by preparing maps, surveys, plans and profiles of all streets. Hearings were had, and the respondent, the Mew York Central and Hudson River Railroad Company, appeared and objected to the proposed layout of One Hundred and Fifty-third, One Hundred and Fifty-sixth and One Hundred and Fifty-eighth streets through this yard, and to the widening of One Hundred and Sixty-first street on' the southerly side by taking forty feet off these yards. Despite the objections, however, the maps were approved.

On July 5, 1895, the board of street openings authorized the commencement of these proceedings. The only issue to be determined is: Can property which has been acquired by a railroad company that is used and necessary for the purposes of running and operating the railroad be taken by the city under condemnation proceedings ?

By chapter 282 of the Laws of 1854, section 4, amending the Railroad Law of 1850, it is provided that “All real estate acquired by any railroad corporation under and pursuant to the provisions of this act, for the objects and purposes herein expressed, shall be deemed to be acquired for public use.”

Section 7 of the Railroad Law of 1890, as amended by. chapter 676 of the Laws of 1892, provides: “All real property, required by any railroad corporation for the purpose of its incorporation, shall be deemed to be required for a public use.”

In Matter of New York & Harlem R. Co., v. Kip, 46 N. Y. 546, it was held “that passenger depots, convenient and proper places for the storing and keeping of cars and locomotives; proper, secure and convenient places for the receipt and delivery of freight, and for the safe and secure keeping of property between th'e time of its receipt and dispatch, or after its arrival and discharge, and before delivery, are among the acknowledged necessities for the running and operating a railroad, and the right to take land for those purposes, is included in the grant of power given by the general railroad act.” It is immaterial whether the lands were acquired by purchase or condemnation. See Matter of City of Buffalo, 68 N. Y. 167; Yates v. Van De Bogart, 56 id. 526; St. Paul Union Depot v. City of St. Paul, 30 Minn. 359.

Land, having been set apart for a specific public use, cannot be devoted to another public use except the power be expressly conferred by legislative grant. See Matter of Street Opening, St. John’s Cemetery Case, 133 N. Y. 329; Matter of New York, Lackawanna & Western R. Co., 99 id. 12; Milwaukee & St. Paul Railway Company. v. City of Faribault, 23 Minn. 167; St. Paul Union Depot Company v. St. Paul, 30 id. 359,

There appears to he no dispute that the land sought to be acquired in these proceedings has been used by the respondent for some years for yard purposes, and the railroad company’s business is very large and constantly increasing; that vehicles and teams conveying goods and merchandise are passing over said strip of land; that the tracks necessary for the handling of cars occupy a portion of the strip sought to be taken and will have to be lengthened in order to provide for the increasing business of the company.

It has been repeatedly held that a railroad corporation in taking land is not limited to its present use, but may acquire for its prospective use, provided the necessity for such use, in the immediate future, is established beyond reasonable doubt. Matter of Application of Staten Island Rapid Transit R. Co., 103 N. Y. 251.

The petitioner’s contention that, under section 958 of the Consolidation Act and the provisions of the Greater Rew York charter, the city is authorized to acquire the land in question cannot avail, for the reason that the acts referred tó are general, and the authorities seem to be uniform that lands once dedicated to a public use can only be taken for another public use' by special authority. See Matter of New York, Lackawanna & Western R. Co., 99 N. Y. 23; St. Paul Depot Company v. City of St. Paul, 30 Minn. 359.

A careful consideration of the evidence submitted leads me to the conclusion that parcel, “ B ” has been dedicated to a public use and is necessary for the railroad for the proper transaction of its business, and I carniot find any provision of law that will warrant this court in taking the lands in question by condemnation proceedings.

These proceedings must, therefore, be dismissed.

Proceedings dismissed.  