
    In the Matter of the Application of the Split Rock Cable Road Co. to acquire real estate of Charles Hughes et al.
      
    
    
      (Court of Appeals,
    
    
      Filed October 6, 1891.)
    
    1. Eminent domain.
    A possible limited use by a few, and not then as a right, out by way of permission or favor, is not sufficient to authorize the taking of private-property against the will of the owner.
    2. Same—Cannot be exercised by road operated mainly eor private
    purposes. .
    Petitioner was organized under the tramway act of 1888, and operates-its road from a point near the works of a corporation in which petitioner’» incorporators were interested, to lands of said corporation at another place. It has thus far been used solely for transporting stone for said corporation, although it is stated that the intention is to carry freight for any person offering the same to the extent of its surplus capacity after supplying such corporation. Reid, that in view of the statute under which-it was incorporated, the objects of its incorporation and the evidence in regard to the manner in which it has been and is to be "operated, and the purposes of its corporate existence, the use to which it is to devote the lands sought to be taken is not public, but private, and therefore it had. no right to take the same.
    Appeal from order of the supreme court, general term, fourth department, reversing order of special term appointing commissioners to ascertain and appraise the compensation to be paid to-the landowners for lands to be taken by the company.
    
      William G. Tracy, for app’lt; Thomas Hogan, for resp’t.
    
      
       Affirming 34 N. Y. State Rep., 169.
    
   O’Brien, J.

The Split Bock Cable Road Company, a corporation organized under chap. 462 of the Laws of 1888, entitled “An act to authorize the formation of elevated -tramway corporations, and to regulate the same,’’ applied by petition to the supreme-court for authority to. take for its corporate use certain lands, of which the respondents are the owners. The right to take these lands was contested by the owners on several grounds, among them that the use for which they were required by the corporation was not public. The special term granted the application .and directed the appointment of commissioners to appraise the value of the property, and this order has been reversed by the general term. There are some questions of minor importance, .such as the- omission of the petitioner to file a map, and the present necessity for acquiring the lands for any purpose, that, in our view, need not be considered. The prominent question is whether the application is for the taking of private property 'for a public use in fact or for a purpose merely private. The provisions of the statute under which the petitioner is incorporated,_ so far as they are material to the question, are as follows:

“Section 1. Any number of persons not Jess than thirteen may form a company for the purpose of constructing, maintaining and operating an elevated tramway, constructed of poles, piers, wires, rods, ropes, bars or chains, for the transportation of freight in suspended buckets, cars or other receptacles, for hire; and for that purpose may make and sign articles of association in which shall be stated the name of the company, the number-of years the same is to continue, the places from and to which the said tramway is to be constructed, maintained and operated, and the length •of said tramway, as near as may be.”

The particular powers which such corporations may possess and exercise are enumerated and specified in the following provisions: “ Section 6. Every corporation formed under this act shall have power and authority: 1. To cause such examination and surveys for its proposed tramway to be made as may be necessary to the selection of the most advantageous route, and for such purpose by its officers and servants to enter upon the lands or waters of any person, but subject to responsibility for all damages which .shall be done thereto! 2. To lay out its tramway and to construct the same as hereby provided.

“ Section 7. In case any company formed under this act is unable to agree for the'purchase, use or lease of any real estate required for the purposes of its incorporation, it shall have the right to acquire title in fee to the same in' the manner and by the proceedings provided by law for acquiring title to lands for railroad use, by railroad corporations, under the provisions of chap. 140 of the Laws of 1850, and the several acts amending the same, supplemental thereto, so far as the same are applicable.

“ Section 9. Every corporation formed under this act shall have power and authority to erect and maintain all necessary and convenient buildings, stations, fixtures and machinery for the accommodation and transaction of its business.”

The articles of association of the petitioner, which are acknowledged June 13, 1888, and filed June 19, 1888, state that the subscribers “ have associated together as an elevated tramway corporation, to continue in existence for the period of fifty years, for the purpose of constructing, maintaining and operating an elevated tramway between Split Eoclc and Onondaga lake, a distance of about four miles, both of which places are in Onondaga county.”

The capital stock of the petitioner was all paid in, and in June, 1889, it completed its tramway from Split Rock northerly to near the Erie canal, a distance of about three and a half miles, and since then it has been in operation. The tramway consists of two elevated cables, held upon supports and parallel to each other, about ten feet apart, on which run buckets by means of a trolley or pulley, one line taking the buckets that have been filled, and the other line taking back the buckets which are empty. The location of the southern terminus of this tramway is upon the land of the petitioner, just north of the lands now desired to be taken, and is in a gorge about ninety feet lower than the Hughes, land.

There is nothing in the statute under which this cozporation was formed nor in the objects of the coz-poration as expressed in the articles of association sufficient to warrant the conclusion that, the business which it is- organized to carry tin is public izi the sense that enables it to take private property under the power of' eminent domain. The special term, however, found as matter of fact that the lands required by the corporation and described in the petition were for a public use, and it remains to inquire whether the general term was right in holding, as it did, that this finding was without evidence to support it. The facts and circumstances from which the nature of the use to which the corporation proposes to apply the property, sought to be condemned, are practically undisputed. The company has filed no map indicating an intention in any way to include the land in question within the boundaries of its property, a fact which, standing alone, would foz’m a very serious obstacle to the success of the application. Matter of the Rochester' El. R. Co., 123 N. Y., 351; 33 N. Y. State Rep., 695. The map of its route originally filed, taken in connection with the evidence, shows that the southern terminus of the tramway is upon the land of the petitioner and near the establishment of theSolvay Process Company, a corporation engaged in a large and growing business consisting, as is to be inferred from the evidence,, in the production of soda ash. This company owns one hundred acres of land upon which az-e stone quarries and this land entirely surrounds the terminus of the tramway as well as the lands in question. The northern terminus of the tramway, as now built, is also on the lands of the Solvay Process Company at the lime kiln of their works, about 500 feet from the Erie canal. The incorporators of the petitioner were practically all stockholders and persons interested in the Solvay Company and it is quite apparent, that the petitioner was organized and is operated as an instrumentality to facilitate the business operations of the Solvay Company. The only business that it has thus far carried on was for that company. As now constz-ucted the limit of its carrying capacity cannot exceed 750 tons per "day. It has thus far been operated pz-actically night and day and has succeeded in carrying for the Solvay Company 350 to 400 tons of stone a day.

There is no public highway leading to the northern terminus of the road by means of which the public can obtain access for its use. That the roád has thus far been entirely for the benefit of the Solvay Company, and that its business is to be entirely subordinate in the future to the plans and interests of the same company is entirely clear. From the evidence of the president of the petitioner and other witnesses in support of the application, the most that is claimed is that the surplus of the capacity of the road, after supplying the wants of the Solvay Company, is to be devoted to public use in carrying, in buckets, freight offered to it by any person, providing such freight is suitable to the buckets and the road. Whether there is to be any surplus capacity, as the Solvay Company continues to expand its business, and, if so, how much, are questions which are left entirely uncertain. From the testimony it appears that the lands are required in order to increase the terminal facilities of the tramway company by building other tramways on the surface to facilitate the carrying of stone to the cable station, by erecting buildings for the storage of freight and for repair shops, and to furnish means of access. The company has other lands that could be used for these purposes, but it is not so convenient. The evidence does not suggest any business that the petitioner is to carry on in the future any more than in the past, beyond the carrying of stone for the Solvay Company, except, possibly, the carrying of coal. In regard to that it is best to describe the project in the language of the president himself, who said: “We intend to-make a contract with some private individual to furnish him with coal, so that he can transport it or sell it to people in that vicinity: to establish a coal yard the same as anywhere; not that the Solvay Process Company or the Cable Company will establish a coal yard; some individual will have to run it, with whom wre will make a contract to carry coal, and we propose to limit the contract to one individual for the present.” Looking at the statute under which the petitioner was incorporated, the objects of its incorporation as described in the certificate and the evidence in regard to the manner in which it has been and is to be operated, and the purposes of its corporate existence, we think it is entirely clear that the use to which the petitioner is to devote the lands of the respondents is not public, but private. The principles governing applications by corporations of this character, to take private property for its corporate purposes, have been very fully discussed and stated in a recent case in this court. Matter of Niagara Falls & Whirlpool R. Co., 108 N. Y., 375; 13 N. Y. State Rep., 690. Under the doctrine of this and other cases, a possible limited use by a few, and not then as a right, but by way of permission or favor, is not sufficient to authorize the taking of private property against the will of the owner. Matter of Deans-ville Cemetery Association, 66 N. Y., 569 ; Matter of Fureka Basin Warehouse & M. Co., 96 id., 42 ; Rochester, Hornellsville & Lack. R. Co. v. Babcock, 110 id., 119 ; 16 N. Y. State Rep., 863 ; Matter N. Y., L. & W. R. Co., 99 N. Y., 12.

The order appealed from is right and should be affirmed, with costs.

All concur, except Finch, J., absent.  