
    Sidney B. Roby, Pl’ff, v. The New York Central & Hudson River Railroad Co., Def't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    Eminent domain—Abandonment.
    A strip of plaintiff’s land was taken by defendant’s predecessor.for use as a railroad, and was so used by it and defendant. Thereafter defendant leased the same for a term of years to one Y. to be used as a coal yard, and raised the tracks upon a trestle for such use, and Y. built coal bins and sheds, completely shutting out the plaintiff and the public from such strip. The lease contained a reservation of the use of the track and trestle and strip for the purposes of a railroad. . Held, that notwithstanding such reservation the lease surrendered to Y. the use and occupation of the premises for the purposes of his private business and to the exclusion of the public; that the effect thereof was an abandonment of the land by defendant for the purposes of a railroad, and that plaintiff was entitled to possession freed from defendant’s easement.
    Motion for a new trial by the defendant on a case tried at the Monroe circuit in February, 1892, in which a verdict was directed for the plaintiff and the exceptions ordered to be heard at the general term in the first instance.
    The action was brought to recover possession of land in the city of Rochester.
    
      William Nath. Coggswell and William F. Coggswell, for pl’ff; Albert H. Harris, for def't.
   Lewis, J.

The plaintiff is the .owner of a piece of land in the •city of Rochester, on the southerly side of Hill street, 200 feet in width, and extending an equal width southerly for the distance of about 130 feet to the Erie canal. Before the plaintiff got title to the lot and prior to the 13th day of July, 1835, the Tonawanda Railroad Company, a corporation duly incorporated under the laws of the state of New York, by proceedings duly taken, acquired the right to appropriate a strip across the southerly end of this lot, twenty-five feet in width, for the use and purposes of a railroad and it took possession thereof and for many years used the same for railroad purposes.

The defendant has acquired all the rights of the Tonawanda •company subject to all its obligations and liabilities.

The eastern terminus of the Tonawanda company was in the city of Rochester. Its line of road passed across the twenty-five foot •strip aforesaid and terminated some 200 feet east of the easterly line of the plaintiff’s land, at the westerly side of Ford street, where the company constructed and maintained its passenger depot. After the road passed from the control of the Tonawanda •company the use of this depot was abandoned, and about $1,000 feet of the easterly end of the tracks of the old road, including the portion thereof extending across the plaintiff’s lot, was used as a .spur of the main tracks of the defendant’s road and was connected therewith at a point about 1,000 feet westerly of the eastern terminus of the old road. This spur was thereafter used by the defendant for the purposes of its freight traffic.

On the 27th day of April, 1889, the defendant executed and delivered to Arthur Gr. Yates, of Rochester, a written lease for the term of fifteen years of its right of way across the plaintiff’s land, including its rights and interests in that portion of its road lying easterly of the plaintiff’s property, which was formerly occupied for a depot. The grade of the railroad tracks upon the property thus leased was thereupon changed by elevating the same so-as to make room thereunder for coal bins and the strip of land across the plaintiff’s lot was covered by the lessee, Mr. Yates, with coal sheds and appliances for the transaction of his business as a coal dealer. He separated the strip of land across the plaintiff’s premises from the remainder of the plaintiff’s lot by constructing his buildings in such manner that there were no means of access by the occupant of plaintiff’s lot to the right of way aforesaid and thereby effectually excluded the plaintiff and the public from that portion of the defendant’s road leased as aforesaid. Mr. Yates devoted the leased property exclusively to his own use for the purpose of a trestle and coal yard, etc., for the receiving and handling of his coal.

It is provided in the lease that the premises are let and are to-be used by the tenant for the following purposes only: A coal-yard and trestle for the purpose of receiving and handling coal over the railroad of the party of the first part. The lessor reserves the right to terminate the lease and the term granted, at. any time, upon giving six months notice in writing to the tenant of such intention; and the lease and term thereupon are to cease-, upon condition that the landlord pay to the lessee what the tenant may have expended in alterations and repairs, not exeeedingthe sum of ten thousand dollars. The lessor agrees to furnish the ties and iron rails necessary- for the use of the tenant’s trestles, lay the tracks, and keep them in repair; all other constructions and repairs are to be made and done by the tenant. The tenant covenants and agrees not to assign the lease or under-let the premises, and covenants and agrees that they shall be used only for the-purposes of receiving and handling his coal over the railroad of the defendant.

The following clause is in the lease: “ It is mutually understood and agreed that the party of the first part reserves from this-lease the use and control of the said track and trestle for all the purposes of a railroad, together with the strip of land twenty-five feet in width adjoining the Erie canal, acquired for the purposes-of said railroad.”

The lease further provides for the extension and continuation, of the term thereof by consent of the landlord. The tenant covenants to pay an annual rental of one thousand dollars.

Prior to the giving of thelease to Mr. Yates, the occupants of the plaintiff’s lot had enjoyed railroad facilities with the defendant’s road, including the part thereof leased to Yates. After the lease, a continuance of such facilities was refused by the defendant unless the consent of Mr. Yates was first obtained.

At the close of the evidence, each party requested the direction of a verdict in their behalf respectively.

The plaintiff’s motion was granted, and the defendant’s ex■ceptions were ordered to be heard at the general term in the first instance.

Notwithstanding the reservation clause above quoted, the lease to all intents and purposes surrendered the use and occupation of the premises to Mr. Yates for the purposes of his private business and to the exclusion of the public. While the lease provides that the defendant shall own the ties and rails and keep them in repair, they are devoted to the exclusive use of the tenant’s business. Access to the track upon the premises leased is controlled by the tenant. He has enclosed the track with buildings. There are doors to the buildings which when closed prevent access thereto.

Lands can be condemned for railroad purposes only when they are needed for the use of the public either directly or indirectly; when thus acquired the public under proper restrictions and regulations have the right to their use. It is not necessary that the entire public should need to use the road, but the public must have a right to use it, and when the right of way is devoted exclusively to the use of a private individual and the public excluded therefrom it ceases to be used for public purposes. It is not a valid objection to the condemnation of a strip of land by a railroad corporation that the proposed premises may serve private, use, if in addition to serving such use it is also necessary for the successful and convenient operation of the main line of the railroad. A railroad company could not condemn land with the avowed purpose of leasing it after it is acquired as this was leased. If after acquiring lands for legitimate railroad purposes it could be leased and thereby devoted to the exclusive private use of individuals, railroad corporations might become dangerous instrumentalities in the business affairs of the country.

The evidence presented the question of fact to the trial court, whether there had been an abandonment by the defendant for the purposes of a public railroad of that portion of its road leased to Yates, and the conclusion was inevitable that it had abandoned it and that the plaintiff was entitled to the possession thereof as the ■owner in fee freed from the easement of the defendant therein. Mahon v. N. Y. C. & H. R. R. R. Co., 24 N. Y., 660 ; Heard v. The City of Brooklyn, 60 id., 242.

The defendant’s motion for a new trial should be denied, and judgment ordered for the plaintiff upon the verdict.

Dwight, P. J., and Macomber, J., concur.  