
    In the Matter of the Application of the Rochester, Hornellsville and Lackawanna Railroad Co., Resp’t, V. Francis G. Babcock, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 19, 1888.)
    
    1. Railroad—Lands of another corporation when may be acquired BY RIGHT OF EMINENT DOMAIN.
    Lands held by a corporation but not used for, or necessary to a public purpose, but simply as a proprietor and for any private purpose to which they may be lawfully applied, may be taken by right of eminent domain as if held by an individual owner.
    2. Same—For what purposes railroads cannot take land.
    The need of the land sought in aid of collateral enterprises remotely connected with the running or operating of a railroad will not justify an assertion of the right of eminent domain.
    3. Same—Proceedings to take land—When it is shown that title CANNOT BE ACQUIRED.
    The proof established that the strip of land sought to be taken could not be acquired; this was sufficient without showing a negotiation with the lessee who could not give the title and right required.
    5, Same—Presumption of power to subscribe for stock.
    In a proceeding to acquire lands for railroad purposes there is no presumption of want of power in any corporation to subscribe to the stock of said railroad where an actual subscription by said corporation has been followed by a payment of more than ten per cent of the subscription.
    Appeal from an order of the supreme court, general term, fifth department, affirming an order of the Monroe county special term confirming the report of a referee and appointing commissioners of appraisal.
    
      Jas. H. Stevens, Jr., for appl’t; Frank S. Smith for resp’t.
    
      
       Affirming 9 N. Y. State Rep., 560.
    
   Finch, J.

The petitioner alleged its due incorporation, the necessary subscription to its capital stock, and the pay-ment of the ten per cent required. It further averred its need of the land sought to be condemned for the purposes of its road, and an unsuccessful effort to agree with the land owner upon the damages to be paid. The latter denied these allegations, partly upon information and belief, and the issues thus raised were tried and decided in favor of the petitioner. We need not delay over the question argued as to the burden of proof for the petitioner established its case beyond the need of resting upon presumptions. While the evidence it gave has been somewhat criticised, there seem to be but one or two points about which the argument made demands our attention.

The principal subscription to the stock, and one essential to the required amount, was that of the Central Construction Company, the validity of whose contract is questioned on the ground that it is a foreign corporation, having no power to subscribe to the stock of a railroad company. The appellants^ claim upon the evidence that the Construction Company is a corporation formed under the laws of New Jersey. _ Whether it is in truth a partnership or joint stock association, or a corporation, is not at all certain, or accurately disclosed; but, conceding its corporate character, there is still no proof of its want of power. Its charter is not shown, nor the law of its organization. Its business is stated to be the construction of railroads, as its name implies, and it would be quite strange if it could not subscribe to the stock of the roads which it can build. At all events we cannot presume against its act, and the payment of $40,000 actually made upon its subscription in money and equipment, that it acted beyond its power. It is not before the court; it does not deny or dispute its liability; and it is difficult to see how the land owner can raise or try the question; yet, if that be possible, no presumption of want of power can be indulged in the face of an actual subscription followed by more than ten per cent of payment.

It is claimed, however, that the cash payment of $21,000, by Chapman, is not satisfactorily proved. He swears that he paid it by causing his bankers to transfer that amount of his own money, on deposit with them, to the credit of the petitioner. He adds that the transfer was actually made, that a receipt was given for it, that it was applied as it was paid upon the stock subscriptions and remains intact in the possession of the petitioner, as a deposit to its credit upon the books of the bankers. These facts are not contradicted, beyond some criticism upon the manner in which the business was done, and comment upon the absence of books and papers, the need of which might not have been anticipated. It is quite evident that we ought not, upon grounds so slight, to distrust the finding of the referee confirmed by the court that the required ten per cent, was paid.

The appeal o£ the Erie Eailroad Company raises another and different question, founded upon the claim that under its lease from Babcock, the land owner, and by reason of the switch constructed to communicate with a brick-yard, it has a prior right for a public use which the petitioner cannot invade. The latter filed its map and profile on the 13th day of July, 1886, and on the 17 th served notice of such filing upon Babcock, and in due season filed its certificates of location. On the 10th of August, the Erie Company took a lease from Babcock for the term of three years of the right to lay a track across his premises toward a brick-yard. The owners of that plant had made verbal applications for a switch, and on the 10th of August, made a written application. That was granted with such willing promptness that the lease is dated that day, and the switch was constructed immediately, the work beginning within two or three days thereafter. It did not, however, reach the brick-yard, because Mrs. Emery, whose lands it was necessary to cross, refused her assent and served an injunction to prevent the intrusion on her land. The switch thus constructed, was at first torn up where it crossed petitioner’s line, and then re-placed by the Erie, and cars run upon it to defend its possession. The general term say, in their opinion, that the question of priority between the two companies had been tried in a separate action and decided against the Erie, and that case is here on its own appeal. See ante p.

Upon the facts disclosed, however, we are of opiniothat the appellant corporation did not establish such an occupation of the switch for a public use as would bar a condemnation by the petitioner. Lands held by a corporation but not used for or necessary to a public purpose, but simply as a proprietor and for any private purpose to which they may be lawfully applied may be taken as if held by an individual owner. Matter of Rochester Water Com'rs, 66 N. Y., 418. The need of the land sought in aid of collateral enterprises remotely connected with the running or operating of the road will not justify an assertion of the right of eminent domain. Rens. and Sar. R. R. Co. v. Davis, 43 N. Y., 146.

The whole subject has been recently and fully discussed in In re Niagara Falls and W. R. Co. (108 N. Y., 375; 13 N. Y. State Rep., 690), and the limits of judicial control defined. In the case at bar the lease taken was brief and temporary, the lessor a complaining land owner and the lessee watching a competitor; the building of the switch so swift and prompt as to indicate a design of obstruction; the purpose asserted that of convenience to the owners of a brick yard in which no public use was involved; even that purpose inchoate and barred by the refusal of Mrs. Emery, and the brick yard not even reached; the switch needless for the general purposes of the company and no such expected use asserted; and the occupation for private gain and for individual convenience. A switch may be needed for the storage of cars or making up of trains, or for access-to docks, warehouses and elevators open to public use and resulting in public accommodation, but nothing of the kind, is here pretended, and it is even doubtful whether its sole utility to the builders was anything other than as an obstruction. We ought not, therefore, to deem it a bar to-this proceeding.

It is further objected on behalf of the appellant corporation that no effort was made to agree with it before the proceedings were instituted. Proof was given of an attempt to settle with the land owner lessor and its failure. That failure made a resort to the court and an appraisal of damages necessary, and its distribution among the different-interests could not be determined until those damages were ascertained. The proof established that the strip of land sought to be taken could not be acquired by agreement, and that was sufficient without showing a negotiation with the lessee who could not give the title and right required.

We think there was no error in the order, and that it should be affirmed.

All concur.  