
    Joseph L. Spofford and Paul N. Spofford, as Surviving Executors and Trustees of Paul Spofford, dec’d, Pl’ff, v. The Southern Boulevard Railroad Company, Def’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 23, 1889.)
    
    Railroad — Southern Boulevard Railroad — Highways — Southern-Boulevard—Laws 1867, chap, 290, amended by Laws 1887, chap. 723— Public did not get fee of the land taken for boulevard — Owners of land right to additional compensation for railroad.
    The Southern boulevard v as opened and laid out as a highway under the law of 1867, which reserved to the oi iginal owners of the land the right to claim and recover compensation from any person or corporation, who should subsequently, under legislative authority, proceed to construct a railroad on such highway. In 1887 the act was so amended as to allow the building of a railroad on said highway by a company organized under the horse railroad law of 1884. The defendant company was so organized, and obtained the consent of property owners and local authorities, as. required by that act. The plaintiffs, lands of whose testator were condemned and appropriated for said highway, seek to restrain defendant from constructing their railroad thereon: Held, that the public did not get the fee of any of the lands taken for the boulevard, and the owners thereof are entitled to additional compensation for the more burdensome servitude now sought to be imposed upon such lands; the right to such compensation would have existed without the express statutory reservation referred to, and if one effect of the amendment of 1887 was to defeat the right, such amendment would, to that extent, be unconstitutional and void.
    The plaintiffs are the surviving executors and trustees of' one Paul Spofford, deceased, who, prior to the year 1867,. was owner in fee simple of certain real estate, formerly in. West Farms, and now within the limits of the city of New York.
    On the 9th of April, 1867, an act was passed by the legislature entitled “An act to authorize the towns of Morrisania, and West Farms to widen, make, extend and improve a Righway in said towns, to be called ‘The Southern Boulevard.’ ”
    The twenty-fourth section of said act was in part as follows:
    “ Said road, when constructed, shall be kept and maintained for the public use as an avenue and boulevard, and, except for .the purposes of crossing the same, no railway or tramway shall be laid or constructed thereon, or upon any part thereof, by any persons or corporations whatsoever, without a special act of the legislature of the state for that purpose first had and obtained; and in ca,se the legislature of the state shall, at any future time, grant to any person or corporation the right to construct any rail or tramway upon said road, or any part thereof, nothing in this act con"tained shall be construed to affect or cut off the rights of the several owners of land, which shall be taken for layingout the road hereby authorized, to claim and recover from such person or corporation the full value of all the land taken from such owner or owners for the road hereby authorized to be constructed, to the same extent as if no such xoad had ever been laid out on said lands, and without any deduction for any supposed benefit to said lands to arise from the construction of such rail or tramway.”
    In pursuance of such statute the Southern boulevard was opened and laid out as a highway, and has been constantly used for such purpose since that time. A portion of said lands, formerly belonging to said Paul Spofford, was condemned and appropriated, and is now included in said Southern boulevard. Thereafter, and in the year 1887, the legislature passed an act, in which it was assumed and intended to amend the aforesaid act of 1867; and it was therein enacted that said section 24 of said act of April 9, 1867, be amended so as to read as follows:
    “ Said road, when constructed, shall be kept and maintained for the public use as an avenue and boulevard, and no railway or tramway shall be laid or constructed thereon, except by a railroad company which has been or may hereafter be duly organized under and by virtue of and in conformity with the provisions of chapter 252 of the Laws of 1884, and which has heretofore complied or shall comply with all the provisions of said chapter in respect of the consent of owners of property and the local authorities.”
    The defendant is a domestic corporation, organized under and pursuant to said chapter 252 of the Laws of 1884 (being the general act for the organization of horse railway companies) for the purpose of constructing and operating a line of street cars in the said Southern boulevard. It has complied with all the requirements of said general act of 1884, in respect to obtaining the consents of the owners of more than one-half in value of the property bounding said proposed line, and of the proper local authorities. Upon the facts above set forth, the plaintiff has brought this action.
    
      for a perpetual injunction, and the defendant demurs to the-complaint, on the ground that it does not set forth facts-sufficient to constitute a cause of action.
    
      E. P. Johnson, for pi’ft; Frederic R. Coudert, for def’ts.
   Larremore, Ch. J.

—Obviously the public authorities did not, by the passage of the act of 1867, and the proceedings, thereunder, acquire the fee to the land of plaintiff’s testator. This fact is even clearer in the case at bar than it was in Wash. Cemetery v. P. P. and C. I. R. R. Co. (68 N. Y., 591), where it is held that in construing a statute-authorizing the taking of private property for public use, in the absence of express words, a fee will not be deemed to betaken, where the language and purposes of the act can be satisfied by the taking of an easement. Here not only is-there an absence of express words showing an intention to take a fee, but it appears affirmatively that no such intention existed.

The provision in section 24 of the act of 1867, reserving to the original owners of the land the right to claim and recover compensation from any person or corporation who should subsequently, under legislative authority, proceed to construct a railroad, is inconsistent with the idea that-absolute ownership was acquired under such act. It had been established by a number of cases prior to Craig v. Rochester City and B. R. R. Co. (39 N. Y., 404) that the use of land for a railroad imposes upon the owner of the-fee a greater and additional burden to that inposed by the use thereof as an ordinary highway.

In the case last named it was further held that there is the same substantial difference in the burden of the easement, though the cars be propelled by horses instead of steam. The following language is from the opinion of the-court, at pages 409, 410 and 411: “I am at a 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 use of a railroad, no matter how it is operated, whether by horse or steam power, necessarily includes, to a certain extent, an exclusive operation 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 pro,gress. This is clearly inconsistent with the legal object and design of a highway, which is entirely open and free to all for purposes of locomotive travel and transportation.

Presumably the compensation paid to plaintiffs’ testator in 1867, when an easement was taken in his land for purposes of a mere highway, was proportioned to that limited use thereof. This would be the ordinary presumption, and it amounts to a certainty in the present case, in view -of the fact that the act itself contained a provision protecting the owners’ rights to further compensation when the .more burdensome servitude should be acquired. This right to additional compensation still exists, and if one effect of "the amending statute of 1887 was to defeat such right, so much of said amending act as assumed to repeal the authority to claim and recover extra compensation would be unconstitutional and void. The proposition is stated thus hypothetically, because I am of the opinion that the right in question would- have existed even without express statutory reservation thereof, and, therefore, it is immaterial whether a superfluous statutory provision shall or shall not be considered abrogated. Because the public have by purchase acquired certain privileges in plaintiffs’ land, the state cannot proceed to confiscate the remaining rights therein. This would be depriving plaintiffs of property without due process of law or just compensation, and the act would be fully as unconstitutional whether it did •or did not repeal an express statute. The principal value of that part of the act of 1867, which declares the rights of land owners to compensation from a railroad company, is that it conclusively shows the legislative intent as to the limited rights in the land originally taken and the limited compensation paid therefor.

I can see no reason why the act of 1887 should not be held constitutional and valid, in so far as it requires the -company in question to be organized under the general act -of 1884, instead of under a special act, as originally provided. It has been suggested that the constitution of the state, adopted since the passage of the act of 1867, precludes the enactment of a special statute for that purpose, and that, unless the amendment could be legally made, no railroad could ever be constructed on the Southern boule-' yard. But, outside of this consideration, I think the power of repeal and amendment as to this part of the act was ample. So much of the amendment as concerns simply the method of organization would have to be upheld, even if other provisions of the act were pronounced unconstitutional. The general act of 1884 may, therefore, be followed by the defendant, except where an observance of its mandates or an assertion of the privileges conferred by it-in usual cases would defeat or trench upon the vested and. substantial rights which plaintiffs still possess.

Plaintiff’s right to an injunction does not depend upon "the constitutionality of the act of 1887. Even if the original act of 1867 were held entirely unrepealed and in force-to-day, the effect of its express language would be only to conserve plaintiffs’privilege “to claim and recover from such person or corporation the full value of all the land, taken,” etc. These words would seem to apply to suits for damages. In the present action plaintiffs come'into equity and take the position that they are still the owners of' certain valuable property rights which the defendant intends to infringe upon and appropriate to its own use, without due process of law or making just compensation. Upon principle, and upon the authority of many cases clearly in point, I think they are entitled to the relief demanded and that the complaint states a cause of action. It has been decided in some of said cases that, under facts such as are here set forth, the plaintiffs are entitled to sue for a perpetual injunction, although they may have a remedy at law. Craig v. Rochester and Brighton R. R. Co. (supra); Bloomfield G. L. Co. v. Calkins, 62 N. Y., 386; Washington Cemetery v. P. P. and C. I. R. R. Co. (supra); Murdock v. P. P. and C. I. R. R. Co., 73 N. Y., 579; Fanning v. Osborne, 102 id., 441; Milhau v. Sharp, 27 id., 625.

It may not be amiss to remark in closing, that I cannot-agree with the learned counsel for defendant in his sug% gestión that the law, as enunciated in Craig v. Rochester and Brighton R. R. Co. (supra), has been rendered obsolete by the passage of the general act .of 1884. And I would further say that the assumption in the present case; that the easement for horse railroad purposes is a “ street-use,” and therefore distinguishable from the easement for a steam railroad, begs the whole question here involved. The very point to be established by defendant is that, under the general act for the organization of horse car companies in the streets of cities, defendant has the legal right to lay its tracks and operate its road over the land in question. This defendant has failed to do, but plaintiffs, on the other hand, set up facts which, if true, show that said land isl still simple highway which they own, subject only to the one easement for which their testator was compensated.

The demurrer should be overruled, and plaintiffs are entitled to judgment thereon, with costs.  