
    The People of the State of New York ex rel. James Amm and Others and The New York Central and Hudson River Railroad Company and Others, Relators, v. The Board of Railroad Commissioners of the State of New York and Others, Respondents.
    
      Railroad Commissioners — certificate of convenience and a necessity set aside in the case of a freight switch road.
    
    Upon the hearing oí a writ of certiorari, to review the action of the Board of Railroad Commissioners in granting a certificate of public convenience and a necessity under section 59 of the Railroad Law, it appeared that the proposed railroad extended from the outskirts of the city of Buffalo to the village of Tonawanda, a distance of seventeen miles; that it was designed as a freight switch road, and that its primary purpose was the development for manufacturing and shipping purposes of a tract of land of about 2,200 acres, which had a frontage on the Niagara river of about four miles.
    The owners of more than sixty-two per cent of this tract, representing sixty-six per cent of its entire water frontage, objected to the granting of the certificate.
    The evidence established that the proposed road would serve no public necessity except such as might result from the future construction of manufacturing plants upon the tract in question, and also that the cutting off of their water frontage by the proposed railroad would result in very great damage to the owners of such tract, exceedingly difficult, if not impossible, of ascertainment in condemnation proceedings.
    
      Held, that the evidence did not justify the granting of the certificate of public convenience and a necessity.
    Certiorari issued out of the Supreme Court and attested on the 27th day of August, 1904, directed to the Board of Railroad Commissioners of the State of New York and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in granting the Niagara Transfer Railway Company a certifícate of public convenience and a necessity under section 59 of the Railroad Law.
    
      Simon Fleischmann and Charles A. Pooley, for the relators.
    
      Tracy C. Becker, Spencer Clinton and Roberts, Becker, Messer & Groat, for the Niagara Transfer Railway Company.
   Houghton, J.:

The Board of Railroad Commissioners granted to the "Niagara Transfer Railway Company a certificate of public necessity and convenience, under section 59 of the Railroad Law, for the building of a steam railroad from the outskirts of the city of Buffalo to the village of Tonawanda, a distance of some seventeen miles.

The certificate is not claimed to have been issued because public convenience demanded greater direct facilities between the city of Buffalo and the village of Tonawanda.

The road is projected as a freight switch road, and its primary purpose is the development for manufacturing and shipping purposes of a tract of land of about 2,200 acres, have a water frontage on the ¡Niagara river of about four miles. Two lines of railway are proposed, one along the bank of the river and the other a few hundred feet back and near the Erie canal, the one cutting off the adjacent lands from the canal and both cutting off the lands from the river.

The owners of more than sixty-two per cent of this tract, representing more than sixty-six per cent of its entire water frontage, filed remonstrances against the granting of the certificate, and have brought this proceeding to set it aside.

It is not claimed there is any freight now in sight for the proposed road, nor will there ever be any passengers of any amount. The reason urged for the necessity of the road and the propriety of the certificate is that its construction will afford means of transportation for factories to be established on the 2,200-acre tract, and for the large shipping interests which it is hoped a development of the water front will bring.

In People ex rel. Cluett, Peabody & Co. v. Commissioners (95 App. Div. 38) this court held that a freight railroad injurious to the owners 'of the property through which it ran ought not to be thrust upon them for their convenience against their protest.

The reasons which impelled us to set aside the certificate in that case apply with much increased force in the present. Here the lands are agricultural lands, wholly unimproved, having a water frontage concededly of value and ¡Dossibly in time of great value.

The general public is not interested in the development and improvement of these lands except in an economic way. All improvements benefit the public, but we know of no rule of law which can compel an individual or private corporation to develop or improve his property for the benefit of the general public. The several owners of this tract of land have a right to develop it or to hold it for speculative purposes, and a railway which cuts off the most valuable rights in connection^ with their land, and diminishes or practically destroys its value as a whole, should not be thrust upon them against their will. It is true that the protest of an individual owner should not prevent the building of a railroad called for by public necessity and which would serve the public convenience. Here no necessity is to be served except such as may grow up on these lands after manufacturing plants shall be established. The situation is much different from the projecting of a railway through a vast undeveloped country. In such a case individual rights are insignificant compared with the general good. In the present case the general good is insignificant compared with individual rights.

If a freight railroad is desirable through this tract of land it should be located with some regard, at least, to the wishes of its owners. The testimony is overwhelming that the proposed road meets no public necessity except such as may hereafter be developed upon these lands, and that the cutting off of the water frontage would be a very great damage to the owners, exceedingly difficult, if not impossible, to be ascertained by condemnation in the present undeveloped state of the property.

In view of the strenuous objection of the large majority of the owners of the property, we think the evidence did not justify the granting of the certificate of necessity and convenience.

The determination of the Railroad Commissioners should be reversed upon the law and the facts, with fifty dollars costs and disbursements to the relators.

All concurred ; Smith, J., not voting.

Determination of the Railroad Commissioners reversed upon law and facts, with fifty dollars costs and disbursements of all relators.  