
    The Genesee River Railroad Company, Plaintiff, v. Ella M. Boyington and Another, Defendants.
    (Supreme Court, Allegany Special Term,
    September, 1908.)
    Eminent domain — Measure of compensation — Injury to property not taken — Consequential damages.
    Where a railroad company condemns and appropriates to its own use lands extending along the right of way of another railroad company upon whose right of way the former company is to lay its tracks, the lands taken being required to support the earthwork necessary to the construction of the tracks upon the right of way of the latter company, the one whose lands are taken is entitled to their full value and to such consequential damages, taking into consideration the advantages anil disadvantages of the construction and operation of the railroad, as will result from such use.
    
      Motion to confirm the report of commissioners in a proceeding for the condemnation of real property for railroad purposes.
    F. A. Robbins, for plaintiff.
    M. B. Jewell, for defendant Boyington.
   Woodward, J.

By agreement this proceeding is to be treated as a motion to confirm the report of commissioners in awarding damages to the defendant in a proceeding to condemn a portion of her premises for the purposes of the plaintiff’s railroad. The facts are very simple. The plaintiff has condemned and appropriated to its own use about one-third of an acre of the defendant’s farm extending along the right of way of the Erie Railroad Company near Olean. It appears from the record that this land is necessary to support the earthwork which it has been found necessary to construct to support two tracks of the plaintiff’s railroad, the rails of which are to be laid upon the right of way of the Erie Railroad Company and the question presented is the measure of damages to be allowed to the defendant. The plaintiff concedes that the defendant is entitled to the full value of the property actually taken, but contends that, as the tracks to be constructed are to be upon the lands of the Erie Railroad Company, the latter is not to be compensated for any consequential damages; that the rule is to be applied which prevails in those cases where no lands of the party are actually taken, the damages resulting solely from the proximity of the public work. It is undoubtedly true that damages inflicted upon abutting owners in the performance of a public work, reasonably and properly conducted, are regarded as damnum absque injuria (Bates v. Holbrook, 171 N. Y. 460, 469-470), but this is not the case of an abutting owner. The plaintiff in this action is not the owner — so far as this record shows — of the right of way on which it is proposed to lay these two lines of track. It is necessary, it appears, to take the property of the defendant for the purpose of supporting the earthwork necessary to the construction of the railroad tracks upon the right of way of the Erie Railroad Company. It has no right to take the defendant’s property for the purpose of constructing an earthwork upon the same, except as this is incident to and a necessary part of the construction of a railroad; it is its position as a railroad corporation, taking the property for railroad purposes, that enables it to take the property at all; and the fact that it is not proposed to construct any part of the iron work upon the property taken has no bearing upon the question whatever. Assuming that the plaintiff, under an arrangement with the Erie Railroad Company, has a right to construct as many tracks as it may desire upon the right of way of the latter, without compensation to the defendant, so long as none of her property is taken, the situation is changed when it becomes necessary to take any portion of the defendant’s real estate for the purposes of the construction and operation of the railroad. It takes such property under the power of eminent domain; it takes it upon the condition that it shall afford to the owner “ just compensation,” and this term has been defined to mean, in such cases, that the owner is to receive, first, the full value of the land taken, and, second, where a part only of the land is taken, a fair and adequate compensation for all injury to the residue sustained or to be sustained by the construction and operation of the railroad.” Newman v. Metropolitan E. R. Co., 118 N. Y. 618, 623, and authorities there cited. “ The first element in the award,” continue the court, represents the compensation for the land which the railroad takes, and to which it requires title. The second' element represents damages which are the result or consequences of the construction of the road upon property not taken, and which the owner still retains. Such damages are wholly consequential, and to ascertain them necessarily involves an inquiry into the effect of the road upon the property, and a consideration of all the advantages and disadvantages resulting and to result therefrom. * * * Whatever land is taken must be paid for by the railroad company at its full market value, and from such value no deduction can be made, although the remainder of the landowner’s property may be largely enhanced in value as a result of the operation of the railroad. But in considering the question of damages to the remainder of the land not taken the commissioners must consider the effect of the road upon the whole of that remainder, its advantages and disadvantages, benefits and injuries, and if the result is beneficial there is no damage and nothing can be awarded.” This case is cited and relied upon in South Buffalo R. Co. v. Kirkover, 176 N. Y. 301, 305, and unquestionably is the law of this State upon this point, as it should be, for it is just to all parties concerned. The property of the defendant is taken for the purpose of constructing and operating two additional tracks upon the right of way of the Erie Bailroad Company (the latter probably being the ultimate real party in interest, the plaintiff company being organized for the purpose of doing this work, with a view to ultimate consolidation), and these two tracks pass through the defendant’s farm, separating her house and barns from the pasturage of .the remainder, the premises being used as a dairy; and the commissioners, who have viewed the premises and who have heard the evidence, have awarded the defendant $700, this including the fee to one-third of an acre of land and the consequential damages. There is no suggestion that this award is excessive; that the defendant has not, in fact, sustained this damage, but it is urged that she is not entitled to the consequential damages as a matter of law. I am of the opinion that she is entitled to the full value of the land taken and that she is entitled to such consequential damages, taking into consideration the advantages and disadvantages of the construction and operation of the railroad, as will result from such use. A railroad cannot be separated in its parts, distinguishing between earthworks necessary to sustain a railroad track and the tracks themselves, any more than we can separate a railroad from its depots, freight stations, franchises, etc.; and, where property is taken out of a plot or farm, leaving a remainder, the person whose property is taken is entitled to the benefit of the rule which we have cited above, even though the tracks are laid upon a right of way belonging to one not a party to the proceeding.

The report of the commissioners should be confirmed, with costs.

Beport confirmed, with costs.  