
    The People of the State of New York ex rel. The New York Central and Hudson River Railroad Company, Appellant, Respondent, v. George E. Priest and Others, Constituting the State Board of Tax Commissioners, Respondents, and The City of New York, Intervenor, Respondent, Appellant. (Assessment of 1900.)
    Third Department,
    March 6, 1912.
    Tax—special franchise—certiorari—burden of proof—valuation of special franchise — net earnings rule — equalizing assessments.
    Certiorari to review the assessment of a special franchise tax upon relator’s railroad running through Park avenue in the city of Hew York. Statutes, conveyances and evidence examined, and held, that relator’s lessor did not have a right of way through Park avenue prior to the use or opening of such avenue as a public street so as to exempt it from assessment;
    That the Legislature permitted the relator to occupy the avenue with the consent of the city, and that its rights therein are taxable as a special franchise.
    The burden rests upon the relator to show satisfactorily that a wrong system of computing the value of the intangible part of a special franchise has been adopted, or that a proper system has been erroneously applied.
    There is no hard and fast rule by which the value of every special franchise may be determined. The assessors are to ascertain the real value and may avail themselves of all tests within them reach and all information which in their judgment bears upon the value. The net earnings rule, in ordinary cases, may be considered the best method.
    In the absence of a finding to the contrary, it must be assumed that the relator’s property has been assessed at its actual value and the court should equalize the assessment with that of other property when such other property is not assessed at its full value.
    Cross-appeals by the relator, The New York Central and Hudson River Railroad Company, and the intervener, The City of New York, from a final order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 7th day of March, 1911, modifying and affirming the assessment of the franchise tax of the relator for the year 1900 upon its railroad in Park avenue extending from the southerly line of Forty-fifth street to near One Hundred and Thirty-third street in the city of New York.
    
      Ira A. Place [Alexander S. Lyman of counsel], for the relator.
    
      Thomas Carmody, Attorney-General, for the State Board of Tax Commissioners.
    
      Archibald R. Watson, Corporation Counsel [Curtis A. Peters of counsel], for the city of New York.
   Kellogg, J.:

The relator contends that its lessor had a right of way twenty-four feet wide through Park avenue prior to the use or opening of such avenue as a public street, and that, therefore, no franchise tax can be assessed thereon under People ex rel. N. Y. C. & H. R. R. R. Co. v. Woodbury (203 N. Y. 167).

Chapter 263 of the Laws of 1831 incorporating the New York and Harlem Railroad Company, relator’s, lessor, gave it the right to construct and operate a single or double-track railroad from the north bounds of Twenty-third street to the Harlem river between the east bounds of Third avenue and the west bounds of Eighth avenue. It was to make and file in the register’s office a survey and map within six months; commence construction within two years and within four years construct its road, which map was not to he filed until approved by the common council of the city declaring that it approved of the map and the route indicated therein, and it was authorized to enter upon and take possession of lands for that purpose, which lands it might acquire by gift or purchase or by condemnation in case of an inability to agree with an owner. Section 10 provided that in case the route was located in or along any public street or avenue now laid out on the map or plan of the city sufficient space must he left in the street or avenue on each side of the railroad for a public highway for carriages and for a sidewalk for foot passengers. Section 11 provided that when necessary it should he lawful, with the consent of the mayor, aldermen and commonalty of the city, to intersect or cross any stream of water or watercourses, or any road, street or highway, provided that it restore the stream, watercourse, road, street or highway thus intersected to its former state or in a sufficient manner not to have impaired its usefulness, and shall moreover erect and maintain sufficient fences'along the line of the road. Section 16 provided that nothing in the act should he deemed to authorize the corporation to construct or use its railroad across or along any of the streets or avenues of the city, as designated on the map' of the city, “whether such streets or avenues shall have been opened or not, without the consent of the mayor, aldermen and commonalty of said city, who are hereby authorised to grant permission to the said corporation to construct their said railroad or way across or along said streets or avenues, or prohibit them from constructing the same, and, after the same shall be constructed, to regulate the time and manner of using the same and the speed with which carriages shall be permitted to move on the same or any part thereof. ”

The maps were duly filed, approved of by the common council, and the consents mentioned in section 16 were applied for and obtained and the road constructed as a double-track road within the time limit.

Fourth, now Park, avenue was laid out on the maps of the city as a public, street in 1811 pursuant to chapter 115 of the Laws of 1807. That act provided that after the map was filed showing the location of the street no compensation was to be allowed for any building that might be built or placed in whole or in part on the property laid out as a street after the filing of said map. The several statutes relating to the city were compiled in chapter 86 of the Eevised Laws of 1813, and by section 177 et seq. a mode of procedure was provided for opening the streets laid out on the map and vesting the title thereto in the city. Section 178 substantially repeated the declaration that no compensation should be allowed for buddings constructed within the line of the street as shown upon the map. The street was never opened and worked as a public street until i860, at which time the railroad company was in operation. The evidence indicates that parts of the street were used more or less for public travel before the railroad came, but manifestly the greater part had not been so used.

Park avenue,, from Forty-second street to Eighty-fourth street, passed through the common lands owned by the city of New York. In 1791 the unsold common lands were directed to be sold and a map of them was made with the East road, sixty feet wide, running through them from north to south, which road is now substantially embraced in Park avenue. The maps show the lots as fronting on this road, and many of them were sold, the boundary carrying them to the road. The male ing and filing of the map and selling of the lots according to it bounded on the road, dedicated the" road as a public highway so that as to the unsold lands the city owned them in its private capacity but subject to the use of East road by the public as a highway. As to the sold lots it owned the fee of the street fronting them, subject to use as a public street. (Graham v. Stern, 168 N. Y. 517.)

The relator shows conveyances from many of the lot owners of the twenty-four foot strip in Park avenue in various places from Forty-fifth to One Hundred and Thirty-third street. The grantors of the. city, however, in many of the cases had laid out their lots as fronting upon the avenue, had sold lots bounded thereon and had deeded the street itself to the city for street purposes. In some instances there had been no deed to the city. The relator, therefore, has the right to occupy the twenty-four feet in Park avenue over the common land by the express permit of the city, the owner of the fee, except as to the parcels which the city had previously sold; the other lands by the consent of the city as provided by the act of incorporation of the relator and by a conveyance of the property in cases where the city had not acquired title to the street itself. Both the relator and the city are statutory persons, deriving life and power from the Legislature, the relator its right to maintain its road in the street by the act of 1831 and the permission of the city given pursuant to that act. The act prescribed as a condition of the right to occupy Park avenue the consent of the city, and that the railway must so occupy the street that it should remain available for street purposes and its use should be regulated by the city. The law under which Fourth avenue was laid out expressly provided that no compensation should be allowed a property owner for buildings erected within the lines of the street after the street was mapped. The relator is not in a position to claim that the rights of the city in the street as a street accrued to it after the relator was established there. The act of incorporation does not permit the company to say that as between it and the city, with reference to its right to occupy the streets, the rights of the city were not the same with reference to it as if the street had been actually laid out and worked upon the ground. It cannot characterize the avenue as a paper street. It was required to get the same permission to occupy it, and practically under the same terms as if it were actually opened and used, and when it put its tracks, in the avenue it did it subject to the rights of the city to use and occupy it as a street. And this statutory person cannot be heard to say that the rights and obligations which were put upon it by the statute are not binding upon it. When it acquired its rights and laid its track with the consent of the city, it knew and practically assented that the building of its tracks could not prejudice the city when it desired to use the street for street purposes. We need not consider how far an individual could question the validity of the statute saying that no compensation should be allowed to the property owners for structures thereafter erected. When the relator applied for and obtained authority to occupy this street, it is beyond its right to question the validity of the act under which the street was created or the conditions attached to the laying out of the street. It, in substance, consented to take its rights subject to the rights of the city and public in the street as contemplated by the statute.

I think, therefore, that for all practical purposes between the parties the relator cannot be heard to say that in working the street the city obtained rights from the company, and that the company was occupying the ground before a street was laid there. The Legislature permitted the railroad to occupy this street if the city -consented to it, and granted it the right. It is, therefore, occupying the street by virtue of the consent of the city, and its rights therein are taxable as a special franchise. Aside from the consent of the local authorities it was a trespasser in the avenue. As the relator’s right in the street came from the consent and permission of the city, the lapse of time does not create an adverse user which prejudices or destroys the city’s rights. The company held all the while under the city. The act of incorporation reserved the right at any time to amend, alter, modify or repeal it, and various amendatory statutes have since been passed which it is unnecessary to refer to, which indicate clearly that the company is and has been occupying this avenue as a special franchise in a public street.

The commissioners, it is said, do not show the exact basis upon which they -computed the value of the intangible part of the franchise. The burden, however, rests upon the relator to satisfactorily show that a Wrong system has been adopted or that a proper system has been erroneously applied. There is no hard and fast rule by which the value of every special franchise may be determined. In some cases the net earnings rule is the proper measure; in other cases it would be entirely improper. The assessors are to ascertain the real value and may avail themselves of all tests within their reach and all information which in their judgment bears, upon the value. (People ex rel. Jamaica Water Supply Co. v. Tax Comrs., 196 N. Y. 39.) The met earnings rule, in ordinary cases, may be considered the best method. (People ex rel. Hudson & Manhattan R. R. Co. v. Tax Comrs., 203 N. Y. 119; 131.) There are great difficulties. in applying that rule to this case. In a large system like the relator’s it is impossible to tell what the earnings of this particular part of its road are. It connects its terminals in the heart of New York city with its road extending for thousands of miles through the country in nearly every direction. It is located in a thickly settled part of the city. Manifestly the per mile earnings would not he a proper measure of value, as it is apparent that the right to use this avenue in this great city must he more valuable than the right to use an equal mileage over an ordinary highway in some obscure part of the country. The situation of the road, the condition of the street, the business passing over it, the advantage to the company, the detriment to the public, its particular locality, and many circumstances, may properly be taken into consideration in determining the value. There is nothing in the record that indicates that the valuation is excessive.

The assessors fix the valuation at $10,192,000 and do not otherwise state its value. It must, therefore, be assumed, for the purposes of this case, that the amount stated was the actual value of the property. (People ex rel. Manhattan R. Co. v. Woodbury, 203 N. Y. 231.) The court was right in reducing the assessment to equalize it with assessments of other property. (People ex rel. Hudson & Manhattan R. R. Co. v. Tax Comrs., 203 N. Y. 119.) We have examined the records and maps carefully, and while we have not stated in detail the various statutes, conveyances and the sources from which the parties derive their interests in each instance, due consideration has been given thereto and to the various points raised upon the argument, and we find no substantial error to the prejudice of either party. The order appealed from is, therefore, affirmed, without costs.

Final order unanimously- affirmed, without costs.  