
    In the Matter of the Proceedings of The Long Island Railroad Co., Resp't, to acquire title to lands of Charles Moran et al., App'lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    1. Condemnation proceedings — Petition to acquire land by railroad.
    An allegation in a petition to acquire title to land by a railroad that the owner demands an unreasonable price, is a sufficient allegation of a. failure to agree.
    2. Same—Contiguity.
    The requirements of the statute of 1881 as to contiguity and accessibility apply only to cases where the land is taken for earth and gravel.
    3. Same—Use op steam.
    The petitioner has a right under the act of 1876 to use steam power on Atlantic avenue, notwithstanding the contract made in pursuance of the tunnel act of 1859.
    Appeal by the owners of property from order appointing commissioners of appraisal in condemnation proceedings under the general railroad act of 1850.
    
      John M. Bowers and J. G. Reid, for app’lts;
    
      K. B. Hinsdaler for resp’t.
   Pratt, J.

This is an appeal by the owner of property from an order appointing commissioners to appraise land sought to be taken by the petitioner under the general railroad laws of the state.

The first objection urged is that the statement in the petition that the petitioner had been unable to agree with the owner upon a price for the land is not sufficient to confer jurisdiction.

This is not valid. The petition does state as a fact that the owner demands an unreasonable price. This is a sufficient allegation under the authorities. Matter of West Shore R. R., 64 How., 216; Matter of Suburban R. T. Co., 38 Hun, 553; Matter of Met. Elevated R. R., 12 N. Y. Supp., 502, 506.

We think the petition was sufficient in form and substance. It was verified as required by the rules of court, and stated all that was possible tó be stated under the circumstances of the case. Neither is there any merit in the objection that the premises sought to be condemned were not contiguous to the petitioner’s railroad.

1. The statute does not require contiguity except in special cases, of which this is not one.

The provision for contiguity was brought .into § 21 of the general railroad act by the amendment of 1881, chapter 649. Prior to that time the section stood as amended by chapter 224 of 1877. The amendment of 1881 interpolated the following clause, “or for filling any structures of, or for constructing, widening or completing therewith or thereon any embankment, or the road-bed of such railroad, when thereby greater safety or permanency may be secured, and such lands shall be contiguous to such railroad and reasonably accessible to the place where the same are to be used for such purpose or purposes."

This amendment gives the right to condemn land for earth and gravel for embankments (which the act prior to 1881 did not authorize N.Y. & C. R. R. v. Gunnison, 1 Hun, 496); but limits the right to lands which are contiguous to the road and “ reasonably ” accessible to the place where the same are to be used.

These two adjectives, “ contiguous ” and “ accessible,” clearly go together; and the latter, with the language which qualifies it, implies that the property which is condemned, to be carried away; the phrase “reasonably accessible to the place where the same are to be used ” is utterly meaningless as applied to a piece of real estate which is to be used as such.

Therefore the interpolation of 1881. stands by itself, and the requirements of contiguity and accessibility apply only to cases where the land is taken for earth and gravel. But the land sought is contiguous in fact unless, as claimed by the land owner, the petitioner has no title to the land now used as a railroad on Atlantic avenue, and this is the main contention in the case.

It is conceded, or not denied, that petitioner is now using steam for propelling power on Atlantic avenue, and desires to condemn the land in question for the same purpose.

It may well be said that this question is not involved in this proceeding, for the reason that the petitioner would have a right, as a railroad using steam, to condemn land for its use, although upon this part of its road it intended only to use horse power; but this is too technical, for the reason that, in part, it does intend to use steam, and these proceedings are instituted for that purpose. Neither is it very material what were the original powers granted to the petitioners in their charter as to determining by what force their cars should be propelled.

It is plain that before the passage of what is called the Tunnel act in 1859 and 1860, the petitioner had a right to use steam, and the whole question here must turn upon the effect to be given this act last referred to, and the act of April 28, 1876, chap. 187.

The Tunnel act provides for the appointment of commissioners to make a contract with the Long Island Bailroad Company for the closing of the tunnel and the withdrawal of the use of steam on Atlantic avenue. Such a contract was made with the Long Island Bailroad Company, and it gave its assent thereto, and received the consideration therefor, and thereby its right to use steam on said avenue ceased, and all laws allowing said company to use steam within the corporate limits of the city of Brooklyn, by the force of said act and the confirmation of the report of such commissioners, were repealed.

The appellant here claims that these proceedings had the effect to permanently abolish the right on the part of the petitioner to úse steam in the city of Brooklyn. On the other hand, the petitioner claims that the act of April 28, 1876, restores the right to use steam, notwithstanding the Tunnel act and the agreement thereunder.

I think it may well be contended that here was a contract between the landowner, represented by the state, i. e., commissioner, on one hand, and the railroad company, on the other, by which the railroad was to be, and was, paid for abandoning the use of steam on the Atlantic avenue for the benefit of the abutting owners, who were taxed for such benefit.

The petitioner’s contention is that, as matter of law, the taxes or assessments were laid and collected by the legislature under the taxing power, and if the legislature saw fit it could the next day after the collection of the assessment authorize the railroad company to again use steam on the avenue ; and such seems to be the course of the decisions upon that subject. The fault, if any, belongs to the law-making power.

There can be no profit in discussing the various decisions that have been made by the courts during the last fifteen years upon the question whether the petitioner has the right to use steam on Atlantic avenue, as they are all one way and that favorable to the railroad company. People v. L. I. R. R. Co., 80 Hun, 510; People v. B., F. & C. I. R. Co., 89 N. Y., 75; A. S. Barnes v. L. I. R. R. Co., in Supreme Court; Geirs v. Same, City Court; Milton v. Same, U. S. Circuit, Eastern Dist., and other cases not reported.

If this was a new question we well might hesitate to adopt such a doctrine without a careful consideration of the arguments suggested by the appellant.

After such a long and uniform course of decisions upon a question, no reversal except by the court of last resort ought to be attempted.

Order affirmed.

Barnard, P. J. and Dykman, J., concur.  