
    Buffalo, Lockport and Rochester Railway Company, Respondent, v. John B. Hoyer and Others, Appellants.
    Fourth Department,
    November 15, 1911.
    Eminent domain —■ construction of street railroad through village — condemnation of way through common — when common not public park — public park defined — compensation ■ where abutting owner has no fee in street — compensation to owner of fee — measure of damages.
    A common established by a landowner who sold lots surrounding it to various grantees, with rights of access over the common to the village street passing through it, is not a public park, although it is finder the control of the village authorities, if they have merely treated it as a wide street and have not attempted to embellish or ornament the common on either side of the roadway.
    Hence, such common- is not exempt from condemnation for street railroad purposes under section 108 of the Railroad Law.
    A public park is an extensive area of land devoted exclusively to the use of the public and' to be ornamented and embellished. An easement or privilege of an individual to occupy or use the same is contrary to an exclusive dominion in the public authorities, the latter being an essential characteristic of a public park.
    Whether a grantee whose lands abut upon the street takes title to the street depends upon the intention of the parties, where the conveyance in terms does not include any part of the fee.
    Conveyance examined, and held, that the grantor did not intend to transfer title to a street in conveying lands abutting thereon.
    It is only where an owner whose lands abut upon a public street owns a fee in the street, or in some part thereof, that he is entitled to compensation when a street railroad condemns a right of way thereover.
    But the construction!of a street railroad does lay an additional burden ' uponcthe lands of an abutting owner who has a fee in the street, and he is entitled to compensation.
    Hence, where the grantor of lands surrounding a common subsequently granted a fee therein to a church society owning lands abutting thereon,' the society is entitled to more than nominal damages where a railroad is constructed on a public street running through the common.
    The damages should include the value of the strip actually taken by the railroad, subject to the right of passage by the public and also subject to easements of ingress and egress held by other abutting owners; also the value of trees destroyed by the railroad and the damages caused to the residue of the church property by then mutilation and destruction. The society should also be compensated for whatever damage may reasonably result to the residue of its contiguous land by reason of the fact .that a portion of its fee
    Kruse, J,, dissented, with opinion.
    Appeal by the defendants, John B. Hoyer and others, from a final order' confirming the report of commissioners in a condemnation proceeding, entered in the office of the clerk of the county of Niagara oh the 10th day of October, 1908, and also from a judgment entered in said clerk’s office.
    
      Daniel J. Kenefick and George W. Thompson, for the appellants.
    
      Alfred W. Gray, for the respondent.
   Spring, J.:

• The plaintiff is a street surface railroad company operating an electric railway from Rochester to Buffalo through the village of Middleport, a village duly incorporated in 1858. The railroad tracks run through a part of the village known as the common, and the defendants abut-upon this open tract of land.

Prior to 1827 one John Oopeland owned about eleven acres, including the common. He plotted a part of this land and upon his map left an open tract extending east from Main street about eighteen rods to a new street delineated on the map as Vernon street. Surrounding this common he divided the tract into lots, numbering each of them.

On December 14, 1827, Copeland and wife conveyed several of these lots, referring to the map, to one David Lindsey. Some of these lots were on Vernon street, as entitled on the map and' referred to as a “new street denominated on said map as Vernon, ground for which street and also ground for a public common eight rods wide extending from Vernon Street to the above described highway (now Main Street) as exhibited on said map, * * * the said Copeland hereby agrees shall be faithfully devoted.”

On the same day Copeland and others conveyed to the Methodist Episcopal Church Society a lot on the south side of this common, and about midway between Main and Vernon streets. The deed contains this clause: “With the privilege of a public common eight rods deep on the north side of the same, which common shall extend from Main street, running north and south through the said village of Middleport, to a new one called Vernon street.”

A church edifice was soon after erected on this lot, and continued to be occupied by the society until 1899, when it erected a church building on the northeast side of the common, Which property is still owned and occupied by it — the main entrance to the church edifice being on Vernon street. The first lot owned by it had no other access to its front entrance except over this common, and during its possession ingress and egress were had over that tract. Dwelling houses were erected on the north side of this common, and the defendants Lahey and Hoyer own and occupy two of these lots fronting on the common, and there is no way of reaching- them except by passing over the same. Long before the village was incorporated, Main and Vernon streets were connected by a roadway about thirty-four feet in width. Trees were planted on each . side of this roadway, and sidewalks were constructed in front of the lots. After the village was organized in 1858 the roadway was improved, and is now macadamized, and is practically continued to the east in a street now designated as Park avenue. The whole common has been accepted and is -under the control of the village authorities the same as any other street of the village. They have regulated the building of the sidewalks, travel has been extensive over it, and telephone and electric light poles were erected upon it. The abutting owners used private driveways to reach the road from their lots, and have hitching posts and stepping blocks adjacent to it. On the southeast comer there is a -union school building, and a path much used and long well worn extends diagonally across the common from this building. There has been ño embellishment or ornamentation of the land on either side of the roadway. The trees and the grass have been permitted to grow, but there has been very little attempt on the part of the trustees to treat this common in any other way than a wide street. It was not inclosed. At one time posts were driven' along each side of the roadway and a rail or board fastened on top of them, which remained for a few years, but was long ago abandoned. It did no.t interfere with access to any of the lots over the existing driveways. The .use by the public and the exercise of' the easement created by Copeland for the benefit of the lot owners have been concurrent, as was intended by the dedicator.

In March, 1849, Copeland, who owned the fee of the common, conveyed the same, by quitclaim deed to the trustees of the Methodist Episcopal Church Society, expressly providing, however, that the conveyance was not to interfere with the equitable rights of prior grantees abutting on the common.

The plaintiff, or its predecessor, obtained from the State Railroad Commissioners the requisite certificate of necessity, the consent of the trustees of the village to construct and operate this railroad over the roadway in the common, and the necessary consent of the owners of more than one-half in value of the property .bounded on the common. All the preliminaries were complied with.

The defendants, who are the abutting owners on the common, claim it was a public park, and, hence, exempted from appropriation by the plaintiff. (Railroad Law [Gen. Laws, chap. 39; Laws of 1890,. chap. 565], § 109, as renumbered § 108 Laws of 1892, chap. 676, and amd. by Laws of 1899, chap. 710; now Railroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], § 191.) The referee correctly held that this open tract of land was not a public park within the meaning of that term in section 108 of the Railroad Law. (Brooklyn Park Comrs. v. Armstrong, 45 R. Y. 234; Perrin v. New York Central R. R. Co., 36 id. 120; 21 Am. & Eng. Ency. of Law [2d ed.], 1066.)

A public park signifies an extensive, area of land devoted exclusively to the use of the public and to be ornamented and embellished. An easement or privilege to occupy or use the same by individuals is contrary to this exclusive dominion in the public authorities which is an essential characteristic of a public park. • '

As was.said in 45 Yew York (supra, at p. 240): “But in the idea of a public park is comprehended more than a use, either occasional or limited by years, or susceptible of coexistence with a private right capable of concurrent exercise. The words suggest more than an open extensive area of land, to be passed over or but temporarily occupied by the public, and on which any private person may still do acts of ownership.”

As far back as the old residents are able to recollect, the road connecting Main and Vernon streets was used, and the trees, each side of it have been planted, and' the abutting owners availed themselves of their several easements in order to enable them to gain access to their lots from the roadway. It has been a parkway with a wider space between the sidewalks and the actually traveled road than is usually found, but a wide street or parkway is not a. public park. Whether the abutting grantee takes title to the street generally depends upon the intention of the parties where the conveyance in terms does not include any part of the fee of the street. The facts already mentioned, I think, clearly establish that Copeland never intended to transfer any title in the street to the abutting grantees, nor did they understand they were receiving such title.

Only, an abutting owner who owns the fee of the street or some part thereof is entitled to compensation from a railroad company using the street. (Craig v. Rochester City & Brighton R. R. Co., 39 N. Y. 404; Peck v. Schenectady R. Co., 170 id. 298; Fobes v. R., W. & O. R. R. Co., 121 id. 505.)

The authorities in this State, contrary to the nearly unanimous doctrine in. other jurisdictions, have uniformly held that the use of a street for the building and operation of a street surface railroad lays an additional burden upon the property right of the owner of the fee in the street. (Cases cited; Paige v. Schenectady R. Co., 178 N. Y. 102; Matter of Rapid Transit R. R. Comrs., 197 id. 81, 99 et seq.)

The referee, therefore, properly decided that the abutting owners .with easements of light, air and access were not entitled to damages for the occupation of the street by the railroad tracks and poles of the defendant. The referee, however, held that the Methodist Episcopal Church Society, by virtue of its ownership of the entire common, was entitled-to. damages. Commissioners were thereupon appointed, and, after a hearing had by them, they allowed six cents damages to the society.

I think the society is entitled to more than nominal damages for the added burden imposed upon its property by the plaintiff. It is often difficult to measure damages with any reasonable degree of accuracy where the fee is subject to easements ' and the injury to certain parts of the property must depend upon the extent and character of the use both of the -street and and of the property of the owner affected.

In the first place the church society is entitled to the value of the strip of nine feet actually taken by the-plaintiff, subject to the usual right of passage over it by the public, and also subject to the easements held by the abutting owners. (Matter of Rapid Transit R. R. Comrs., 197 N. Y. 107 et seq.)

The tracks of the defendant are not wholly in the road in the common. Near Main street they are deflected to the northwest from the traveled road and diagonally across a corner of the land where trees are growing. The proof shows that in the erecting and maintenance of its poles and overhead trolley wires it will be necessary to trim several of the trees and two or three will be cut down by reason of the deflection of the line from the traveled roadway. The society is the owner of these trees and their value and whatever damages are caused to the residue of the church property by their mutb lation or destruction should be awarded to it. (Donahue v. Keystone Gas Co., 181 N. Y. 314.)

Again, the society is entitled to be compensated for whatever damage may reasonably result to the residue of its contiguous lot by reason of the taking of its property for street railroad purposes. (South Buffalo R. Co. v. Kirkover, 176 N. Y. 301; Henderson v. N. Y. C. R. R. Co., 78 id. 423, 433; Rasch v. Nassau Electric R. R. Co.y 198 id. 385.)

In the case last cited the court (at p. 388) adopted the head note of the Kirkover case, which is as follows: Where land. is acquired by a railroad company without the consent of the owner, he is entitled to recover the market value of the premises actually taken and also any damages resulting to the residue, including those'which will be sustained by reason of the use to which the portion taken is to be put by the company.”

In City of Buffalo v. Pratt (131 N. Y. 293) the court considered a substantial award to a lot owner whose fee title included a part of the street or terrace condemned by the city, and used this language: “It is unquestionable, however, that the ownership'of the fee of the land in a street has a substantial value to the abutting property holder, in the degree of control it gives to him over the uses to which the street may be put. It vests him with the right to defend against and to enjoin a use of, or an encroachment upon the street, under legislative or municipal authority, for purposes inconsistent with those uses to which streets should be, or have been ordinarily subjected, unless just compensation is provided to be made.”

I appreciate that seldom have substantial damages been awarded or allowed ultimately to an .abutting owner with title to the street where it. has been taken for a street railroad (Peck v. Schenectady R. Co., 170 N. Y. 298, 310; Matter of City of New York, 196 id. 286); but the integrity of the rule does not seem to be questioned, and it seems clear that more than nominal damages should be awarded to this church society. The taking of the land was more than a “technical encroachment ” upon the property of the abutting owner.

It is proper to add that the damages testified to by the witnesses on behalf of the church society are inordinately exaggerated. These witnesses gave the value of the interest of the society in the common at $15,000, and with the appropriation of the land by the plaintiff of no value. They apparently assumed that the common on each side of the roadway was available for building lots, or was in the market for general purposes. The interest of the society is, of course, subject to the perpetual right of the public and the easement of the abutting owners.

The judgment entered upon the report of the referee should be affirmed, with costs to the.respondent against the defendants Hoyer, Lahey and Union Free School District.

The report of the commissioners of appraisal and the order confirming the same should be set aside and the motion to confirm the same denied, and new. appraisal commissioners should be appointed to the end that a new hearing-may be had as to the damages sustained by the Methodist Episcopal Church Society, with costs of this appeal to said society to abide the event.

All concurred, except Kruse, J., who dissented in an opinion and voted for reversal of the judgment.

Kruse, J. (dissenting):

1. I think neither the driveway nor any part of the plot of ground it crosses is a street in such a sense as to permit its use for a street surface railroad. The original owner who made the dedication designated it in the conveyances and maps made by him as a public common. The village authorities who accepted it characterized it as the village green, the public common, the public park. The use to which it was put with the apparent Consent of the original proprietor and his successors in title indicates that it was not regarded .as- a public highway, although a driveway has been maintained across it. Children have played there; the inhabitants have gathered there for recreation and amusement; meetings, political and social, have been held there. In short, the use to which it has been devoted is entirely consistent with that of a public park, taking into account the size of the village, and requirements of the inhabitants and the surrounding circumstances.

The learned referee himself finds that it has the qualities of a public park, except improvement, beautifying and being subj ected to park regulations. It would hardly be expected that in a small village like this, formal park regulations would be adopted; and as regards the improvement and beautifying of the plot, it appears that while the adjoining owners originally planted the trees, the village authorities have trimmed them and had the general care and control of the grounds, keeping them inclosed to some extent tip to within quite a recent period of time.

The maintenance of the driveway does not detract from |he use of the grounds as a public park. It- is well known tfiat parks have driveways in them, but that does not necessarily make them public streets. j

Whether this dedication is to be regarded as,a public park or a public square or common, I think in neither view can it be appropriated for the use of a street surface railroad. If it is a public park, the statute expressly forbids constructing a railroad through the grounds, except in tunnels. (Railroad Law, § 191.) If it is a public square or common, the objection holds equally good, because the plot of land, having been dedicated for a public use, cannot be taken for. another public use inconsistent therewith, unless by express authority of law. I think no statute confers such power, and as was said in Matter of Boston & Albany R. R. Co. (53 N. Y. 574), such power must be expressly conferred; that is, in direct terms or by. necessary implication.

The so-called franchise from the village authorities to the railroad company does not, of course, aid it. They could not change the nature and purpose of the dedication or curtail the use for which it was intended. (Porter v. International Bridge Co., 200 N. Y. 234.) There is no question of abandonment here as there was in the Porter case.

2. If, however, the dedication was for a street, or was of that nature, then I think the adjoining owners took title under their conveyances to the center of the plot of ground. (Perrin v. New York Central R. R. Co., 36 N. Y. 120.) And if so, they are .entitled to compensation. The subsequent deed of the fee to the church society by the original owner only conveyed what he had left and could not, of course, affect what he had theretofore conveyed away. So in that view, the judgment determining that none of the defendants save the church is entitled to compensation is erroneous, and should be modified.

Judgment affirmed, with costs to the respondent against the defendants Hoyer, Lahey and Union Free School District, the report of the commissioners of appraisal and the order confirming the same set aside and the motion to confirm the same denied, and new appraisal commissioners directed 'to be appointed, to the end that a new hearing may be had as to the damages sustained by the Methodist Episcopal Church Society, with costs of this appeal to said society to abide event.  