
    John Craig, Respondent, v. The Rochester City and Brighton Railroad Company, Appellant.
    The establishing and running a horse railroad in the public streets of the city of Rochester held to be an imposition of an additional burden upon the land of an adjoining proprietor covered by such street.
    And that such proprietor could maintain a suit to enjoin, perpetually, the railroad company from laying down such track in the street, and from running their cars over the same. Judges Woodruee, Mason and Dwight, dissenting.
    This is an appeal from a judgment of tiré General Term of the Supreme Court of the seventh district, perpetually enjoining the defendant from laying its track (a horse railroad track) in East avenue, a public street of the city of Rochester, opposite the premises of the plaintiff, or doing any thing in relation thereto. The facts of the case are as follows:
    The defendant was organized under and by virtue of the general railroad act, on the 20th day of Hay, 1862. On the 24th day of June, 1862, the defendant procured the consent of the common council of the city of Rochester to its constructing, maintaining and operating its road and laying its track through sundry streets of that city, upon certain terms, conditions and stipulations. By the terms of such consent, such railroad track was to be constructed of the improved Philadelphia broad rail, six inches face, half inch raised edge, the edge to be laid flush with the surface of the street, four feet ten inches apart between the raised edges, so as to accommodate the most common width of carriage wheels. The track was to be so laid as to permit the free passage of vehicles over the same, and the rails laid even with the surface of the street, and to conform to the grades thereof as they were then established, or should thereafter be establishéd or altered. Provision was made for the keeping open of the streets, etc., during the laying of the track. The ears to be used on the railroad were to be drawn by horses or mules only, at a speed not exceeding seven miles per hour, and to be run as the common council should prescribe. Numerous other provisions as to the operation of the road were attached to the consent of the common council. Under this consent, which was accepted by the company, the defendant was proceeding to construct its road, when the plaintiff, on the 21st of October, 1862, commenced his action against the defendant, in which he alleged that he was the owner of a lot on East avenue, extending to the center of said street, upon which was situated his dwelling house; that .the defendant was a corporation, organized under the railroad act, and was about to commence the construction of its road in said East avenue, running along the center of said street past his said premises ; that the defendant has taken no proceedings to acquire the title of the plaintiff to any part of his premises, or to assess his damages, and that the defendant claimed to construct its road in East avenue without obtaining his consent, or taking proceedings to acquire title; that the construction of said road, and said road after its completion, would, in his judgment, greatly impair his enjoyment of his said premises, and depreciate the value thereof.
    The defendant in its answer admitted the title of the plaintiff to the premises in question, and that it was about to construct its railroad through East avenue, but denied that it would impair or depreciate the value of the plaintiff’s premises. The answer then set forth the consent of the common council of the city of Rochester, before referred to, and that its road was to be constructed and operated in accordance with the provisions thereof.
    The action came on for trial before Justice J. C. Smith, when the plaintiff read the pleadings and rested his case. The defendant put in evidence its articles of association, the map and profile of its route, the consent of the common council, before referred to, its acceptance and adoption thereof, with the approval of the attorney of the city, as requ'red thereby. Upon this testimonythe case was submitted to the court. The court, on the 2d of April, 1863, made its decision. The findings of the court contain substantially the facts above stated, that the defendant formally accepted the consent of the said common council, subject to the conditions, provisions and restrictions therein contained, and bound itself to keep and observe the same, under which it claims to construct its road, and not otherwise.
    The court decided that the construction by the defendant of -the railroad authorized and permitted by the, resolution aforesaid (the consent of the common council) in the aforesaid street opposite the premises of the plaintiff would be the imposition of an additional burden upon, and the taking of, the property of the plaintiff, within the meaning of the constitutional provision, which forbids such taking without compensation, and that the defendant derived no authority to do the acts aforesaid by the acts of the legislature under which it is incorporated, or said resolutions of the common council of said city, without the consent of the owners of the fee, or the appraisal and payment of his damages in the mode provided by law, and granted a perpetual injunction.
    This judgment was afterward affirmed on appeal by the General Term of the seventh judicial district, from which decision this appeal is taken.
    
      W. F. Cogswell, for the appellant.
    
      T. F. Strong, for the respondent.
   Miller, J.

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 urged 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 en- . titles them to pecuniary remuneration.

I am inclined to think, that the question involved in this case has been substantialy adjudicated by this court in several cases, and that the principle has been definitely settled, that such a use of the land imposes an additional burden upon the owner of the fee of the lands adjoining. Such is, no doubt, the rule as to railroads operated by steam power. In the old Supreme Court, in the case of The Trustees of the Presbyterian Society in Watertown v. The Aub. & Roch. R. R. Co. (3 Hill. 567), the doctrine was laid down, that the laying out of a highway gives to 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 oí 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 and Syracuse R. R. Co., 25 Wend. 462.) The same principié 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 if 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 (14 N. Y. 506), which preceded the case of Williams v. N. Y. C. R. R. Co., the reasoning of the learned judge who delivered the opinion sustains the same views which were enunciated in the latter case. The same doctrine is also upheld by several reported cases, since decided by this court. (See Mahon v. The N. Y. C. R. R. Co., 24 N. Y. 658; Carpenter v. The N. Y. C. R. R. Co., id. 655; Wager v. The Troy Union R. R. Co., 25 id. 526.) 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. This 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 presented. The effect of the decisions which I have cited are fully considered in the able opinions of the General Term delivered upon the decision of the case now considered, and the principle enunciated by them was there held to be applicable to street railroads, equally with those where steam is employed as the motive power. 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 re-affirmed, 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 cam 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 ease 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 1 have adverted.

The ground upon which these cases 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 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 its cars are propelled, at times; but there is precisely the same exclusive appropriation of the track for the purposes intended in each case, to the absolute exclusion of all who may interfere with its mode of operation. The power to use the road for the conveyance of passengers is entirely with the company, and no person can interfere with that method of conveyance, or with the right of the company to enjoy its monopoly. As was held in Hogan v. The Eighth Avenue R. R. Co. (15 N. Y. 380), the company has the exclusive right of the track while the 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. Co., 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 public, 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 carried out and is a part of the public easement, and is therefore a 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 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 exclusive occupation of a portion of the highway, for the track of the road, and the running of its cars by the company, and a permanent occupation of the soil. It requires, that all other parties shall stand aside, and make way for its progress. This is clearly incdnsistent with the legal object and design of a highway, which is entirely open and free to all, for purposes of locomotive travel and transportation. The enjoyment of the easement in a highway never confers an exclusive right upon any one who may have occasion tó use it, while the laying down of rails, and the employment of cars, is to the detriment and exclusion of all others at the time when the cars are running, and a restraint upon a free, undisturbed and general public use. It is an assertion of a right to the possession of the highway by the corporation, and an appropriation of it to private occupation, which, by lapse of time, might ripen into a right, and vest. a title in the company.

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 owners of land. In narrow streets, where the rails of the road border close upon the sidewalk, it not only interposes obstacles to the traveler, 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, and 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; d. 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 cases referred to are also examined and criticised in the opinion of the General Term in this case, upon the appeal from the order denying the motion to vacate the injunction (39 Barb. 494), and I do not' deem it necessary to discuss the points of difference more at length. If, under any circumstances, either of them can be considered as deciding the question now before us, then, I think, they are in conflict with the decisions of this court, as well as sound principles, and must be disregarded. 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 (13 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 tc, travel over the turnpike or plank-road in his own convey anee, 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 traveling, if not to those whose lands are located on the line of the road.

The considerations suggested cover all the points urged, which are material in the disposition of this case, and inevitably lead to the affirmance of the judgment of the Supreme Court.

Mason, J. (dissenting).

The defendants, being a legally organized railroad corporation, under the general railroad act of 1850, were clothed with legislative sanction and authority to construct the railroad in question, after having procured the assent of the common council of the city of Rochester to do so, unless it shall be held that the private rights of the owners of lots adjacent to such streets are invaded by such use of the street.

The plaintiff claims that the construction of such a street railway is the imposition of a new use, and an additional burden upon the land embraced in the street, and so amounts to the taking of the property of the owner of the fee without compensation, and consequently an invasion of his constitutional rights. This is the important question presented by this appeal. The common council of the city are invested with full control and complete authority over the streets of the city, and so far as any legal right existed to make such a use of the streets, they have granted it to the defendants with the most careful and prudential regulations calculated to preserve the full rights of the public, in the use of the streets. (Laws 1861, p. 317, § 55, chap. 320, § 161.) There is no dispute in regard to any fact in the case, and the judge at Special Term decided this question of law against the defendant, and granted a perpetual injunction restraining the defendants from laying their railroad in this street.

The court below seem to have regarded themselves bound to depart "from the decision of the same court in General Term, upon the same.question, in the first and second judicial districts, upon the construction which they put upon the decisions of this court, in the cases of Davis v. The Mayor etc. (14 N. Y. 516); Williams v. The N. Y. Central R. R. Co. (16 id. 97); Carpenter v. Oswego and Syracuse R. R. Co. (24 id. 655); Mahon v. The N. Y. Central R. R. Co. (id. 638), and Wager v. The Troy Union R. R. Co. (25 id. 526). These cases decide that the construction of a common railway to be run with steam-engines in a public street, without the consent of the owners of the fee of the street, is the imposition of a new use, and an additional burden upon the land embraced in the street, and is the taking of the property of the owner without compensation, and consequently is prohibited by the Constitution. There is certainly a broad distinction between these cases and that of a street railroad, with cars to be drawn by horses, at a speed of not more than nx miles per hour. In the leading case of Williams v. The New York Cental R. R. Co., the street was literally destroyed for any'of the original common use for which the land was originally taken. With forty engines, and the trains which they draw, passing over the street daily, any use for carriages or common vehicles must be so very extremely dangerous, that the use of the street, for any such purpose, would necessarily be very limited, if not abandoned; and, besides, the railroad corporation, in such a case, takes the exclusive use of the street, and, in all thesp cases, actual and exclusive possession of the locus of the street is taken by the railroad corporations. In the case at bar, no such thing occurs The construction of this railroad in the streets of the city of Rochester, and the operating of it, when completed, does not «involve the taking of any title to the. land It is true, the iron rails are to be laid down in the street, but they are required to conform to the grade of the street, and as the same may be changed from time to time by the city authorities, and the rails to be six inches wide, and laid even with the surface of the street. The track of the road does not become the property of the railroad. All that the railroad corporation gets, is a license fo construct and operate the railroad, but to be enjoyed, subject to the rules and regulations of the common council; and these regulations, in the case at bar, art' well calculated to secure all the original public use of the street as an easement for public travel, and the common use for carriages and other vehicles, and no one is prohibited from passing over and along the track with teams and vehicles,'but, on the contrary, these common rights are but little interfered with; all that is granted to the defendants is the right to use, not to take and hold, without at all excluding other persons from their former use of the same. The use which is thus granted is nothing more than the privilege of passing over the streets in question with a species of conveyance somewhat different from that which the public generally use. The inconvenience to the public, in the common use of the street, must be small, and no individual can complain, that a public street is appropriated- to a public use somewhat different, unless it is to be regarded a new use, and imposes an additional burden upon the land. This, in my judgment, is not a new use. When land is acquired to the public use of a street or highway, the public may lawfully claim the same for all the varying wants which the public may require, only so that such use is in subordination to its principal use as a street. The principal uses of a street are for the passage and repassage of the public, and this public right of passage is not limited to any particular mode of travel which may be in use at the time the land is taken, but to all such new methods as the progress of civilization and improvement may bring into use, only so that it remains a public street still, and devoted to the public use.

The construction and use of such a street railway, as is provided for in the case under consideration, is but a mode of exercising the public right of passage, and I perceive no objection to the public exercising this right by means of public agents, or through the medium of corporations, where they become public common carriers and do not further encroach upon the general, public use, than do those street railways constructed and run in conformity to the regulations .prescribed in the case at bar. There is no new appropriation of the property of the plaintiff requiring compensation in damages. Nor is there a burden imposed upon his land, caused by a use not contemplated in its original appropriation.

This question has received great consideration in the Superior Court, and has invariably been decided in conformity with the views above expressed, until we came to the cases at bar. (32 Barb. 420; 35 id. 364; 37 id. 357; 32 id. 410; 10 id. 26; 35 id. 373.) These cases are well considered, and are referred to as affording satisfactory reasons for the judgments given. This question came before the Supreme Court of the State of Ohio, in the case of The Cincinnati Street Railway v. Cumminsville (14 Ohio 524), and the case was decided the same way, and to the same effect, as the decision of the Supreme Court of Connecticut in the case of Elliot v. Fair Haven R. R. Co. (32 Conn. 579), where the question is well considered by Judge Ellsworth, who delivered the opinion of the court in that case. Other cases might be referred to, sustaining the same views. The course of judicial decisions in other States is certainly in accordance with the views aboye expressed, upon the ground, substantially, that the public easement is not destroyed, but only used according to a new and improved mode. Th^ precise question has never been decided in this court.

In the case of Davis v. The Mayor, etc., of N. Y. (14 N. Y. 530, 531), Judge Comstook expressed the opinion that such a use of the streets of a city was lawful, and that this highway and railroad track could co-exist and constitute one public easement. The very able opinion of Judge Emott, delivered in this court, in the case of The People et al. v. Kerr (27 N. Y. 188), fully sustains the views above expressed, and the opinion of Judge Wright in that case certainly favors this view, as does the decision of the court, although this question cannot be said to be there decided. I will only say, without further discussion, that this conclusion, which I have attained, after a careful examination of the adjudged cases, and the best reflection which I have been able to bestow upon this matter, is, that this new use of the streets, for the carrying of passengers by horse railway, is consistent with the public use for which the lands of the streets were originally appropriated, and is not so far antagonistic to their common use as streets, as to deprive the adjacent owners of the fee of any property, or interest in the lands for vhich he can claim compensation. The great object of a highway is to furnish accommodations for the passage and transportation of travellers and freight; and these street railways and these street cars are only one of the legitimate means to accommodate the public travel, and is a lawful use of the street.

It follows that the judgment of the Supreme Court should be reversed, and the plaintiff’s complaint dismissed.

Woodruff and Dwight, JJ., concurred in this opinion.

Judgment affirmed, with costs.  