
    The Boston and Albany Railroad Company, Appellant, v. The President and Trustees of the Village of Greenbush, Respondent.
    (Argued February 25, 1873;
    decided May 6, 1873.)
    The provision of the act regulating “the construction of roads and streets across railroad tracks ” (§ 1, chap. 62, Laws of 1853), which authorizes the laying out of streets and highways across the track of any railroad without compensation, etc., has reference only to tracks used for public traffic, and for turn-outs and switches.
    The term “track,” as there used, does not include grounds upon which tracks are laid for storing cars or exclusively for making up trains.
    Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of defendant, entered upon the decision of the court upon trial at circuit without a jury.
    This action was brought to restrain defendant from opening Herrick street, in the village of Greenbush, across the lands of plaintiff. The facts pertinent to the question discussed appear sufficiently in the opinion.
    
      George W. Miller for the appellant.
    The lands of railroads are so far private as to come within that clause of the Constitution prohibiting their condemnation without compensation. (Miller v. N. Y. and E. R. R. Co., 21 Barb., 513; Albany N. R. R. v. Brownell, 24 N. Y., 345; Thorpe v. Rut. and B. R., 27 Vt., 140, 151; 6 How. [U. S.], 538, 541; Milliman v. Oswego and S. R. R., 10 Barb., 87; Nicoll v. N. Y. and E. R. R., 2 Kern., 121.) Defendant’s acts constituted a continuing trespass, and an injunction is the proper remedy. (Albany N. R. R. v. Brownell, 24 N. Y., 345; Kerr on Injunctions, 294, 295, 330; Clowes v. Beck, 13 Beav., 347; Williams v. N. Y. C. R. R., 16 N. Y., 97, 111; 12 Cush., 410; 29 Barb., 396; Del., etc., R. R. v. Raritan, etc., R. R., 1 Green. [N. Y.], 321; 6 Paige, 83.)
    
      
      Amasa J. Pa/rker for the respondent.
    Plaintiff has no such interest in the land as deprives the public authorities of the right to open a street across it. (2 R. S. [5th ed.], 680, §32; S. L. 1857, chap. 444, §2; 2 R. S. [5th ed.], 672, §§ 13, 18; id., 677, § 23; S. L. 1854, chap. 282, §§ 2-4; 2 R. S. [5th ed.], 681, § 34; id., 596, § 1; sub. 4, § 3 ; id. [1st ed.], 600; 24 N. Y., 345; Albany N. R. R. v. Brownell, 24 N. Y., 345.)
   Church, Ch. J.

The validity of the act of 1853 authorizing the laying out of streets and highways across the track of railroads, without compensation to the owners of such railroads, was affirmed in The Albany and Northern Railroad Co. v. Brownell (24 N. Y., 345), upon grounds entirely satisfactory to this court, and we concur in the construction of the act given in that case. The only debatable question is whether the track proposed to be crossed is such a track as is authorized by the act to be crossed without compensation. The “track” specified in the act may include one or more single tracks, but should, I think, be limited to the track used for public traffic, whether composed of one or more, including turn-outs and switches, or, in other words, what may fairly be regarded as the roadway. Grounds upon which tracks are laid for storing cars, or exclusively for making up trains, are not embraced in the term “ track.” The finding of fact is that the seven tracks proposed to be crossed are in constant use for passing trains, and for switching off cars and making up trains.” This finding does not relieve the premises from the operation of the statute. We cannot infer that these grounds were used substantially for storing cars. On the contrary, the import of the finding is, that although in constant use for passing trains, the tracks were also used for switching off cars and making up trains. This might be done at any point on the road where there is a turn-out or switch.

The finding is controlling upon this point, and the judgment must be affirmed.

• All concur.

Judgment affirmed.  