
    G. A. Van Kleeck et al., Resp’ts, v. Dutchess County Railroad Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1894.)
    
    Railroads—Farm-crossings.
    In deciding whether a crossing should be required, the cost to the company, as compared with the benefit to the land owner, is to be taken into consideration.
    Appeal from a judgment in favor of plaintiffs.
    
      Milton A. Fowler, for app’lt; Hufcut & Travis, for resp’ts.
   Pratt, J.

This is an appeal from a judgment rendered at a trial before a judge without a jury. The action was brought by the plaintiffs, who own a farm through which the defendant took a strip of land, by condemnation, for its railroad, to compel the defendant to build a crossing under its railroad for stock at one point, and a bridge over its railroad for teams and stock at another, in addition to certain crossings already built by the opany. From the proofs before the court, it is difficult to perceive any necessity for a bridge over the railroad at all, and it is also very questionable whether any more cattle culverts are required for the reasonable use of the farm owned by the plaintiffs. There is no such amount of travel over a farm crossing as to justify the great expense of building a bridge over a railroad. It is well settled t.hat the cost to the railroad, as compared with the benefit to the land-owner, is to be taken into consideration, in deciding whether a crossing shall be required. Jones v. Seligman, 81 N. Y. 190-196; Wademan v. A. & S. Railroad Co., 51 N. Y. 568. The interest of neither party is to control, but the power to compel the building of proper crossings and culverts is to be exercised in a proper manner, having due regard to the convenience of the owner of the land, and without subjecting the railroad to extravagant, burdensome, and unreasonable expense. The question is one that depends upon the facts and circumstances of each particular case, the location of the lands, and the needs and necessities of the owner. While he is to be reasonably accommodated, the railroad must be justly and equitably dealt with. What the expense would be to make the improvements demanded by the plaintiff was a material fact, which the court below refused to find. This we think, was error. It was also error in refusing to find the heighq details, and cost of overhead bridge, with approaches, and also cost and kind of- under-crossing for cattle.

There are n'umerous exceptions remaining, but we only notice one other, to wit, in permitting a non-expert to answer the following question, “ Is -it practical to build a bridge there, over that railroad, at a reasonable expense? ” No one but an engineer, or a man experienced in bridge building or kindred work, could intelligently answer such a question. Besides, the answer decided the issue in the case.

It seems to us, in view of the above reasons, and the fact that the defendant has already built three grade crossings within about a third of a mile, and that to comply with the demand of the plaintiff will entail great expense and hardship upon the defendant, there ought to be a new trial.

Judgment reversed, and new trial ordered; costs to abide the event. -

All concur.  