
    
      In re Split Rock Cable-Road Co. et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1890.)
    Eminent Domain—Public Use.
    In condemnation proceedings by an elevated tramway corporation, organized under Act N. Y. June 3, 1888, it appeared that the southerly terminus of petitioner was accessible only by a private road, and that up to the date of the petition the road has been used solely for transporting stone for a private corporation in which the incorporators of petitioner were interested. It was claimed by petitioner that it was its intention to carry freight for any person offering the same to the extent of its surplus capacity after supplying the private corporation. Held that, in view of the location oí the terminus, the private use of the road, and the uncertain character of any future development for the benefit of the public, the evidence failed to establish that the taking sought was for public use.
    Appeal by Charles Hughes, James Hughes, and Eugene Hughes from an order of the Onondaga special term, November, 1889, appointing commissioners to ascertain and appraise the compensation to be paid the appellants for lands to be taken by the applicant. The petition of the applicant, verified October 15, 1889, alleged that it was incorporated on the 19th June, 1888, under an act of the legislature entitled “An act to authorize the formation of ■elevated tramway corporations, and to regulate the same,” passed June 2, 1888; that it is its intention to construct and finish a railroad, as stated in its articles of association, commencing at or near Split Rock, in the town of Onondaga, and running thence by the most direct and feasible route, via the towns of Onondaga, Camillus, and Geddes, in the county of Onondaga, and terminating at or near Onondaga lake, in the town of Geddes; that $10,000 for every mile of the road proposed to be constructed has been in good faith subscribed to the capital stock, and 10 per cent, thereof paid in; that the company ■has surveyed the land or route of its proposed road, and has made a map or survey thereof by which its route or line is designated, and it has located its road according to such survey, and filed certificates thereof signed by a majority of its directors in the office of the county clerk of Onondaga county, that being the only county through or in which the road is to be constructed; that its tramway or road has been completed, and is in operation, from a pointabout the northern line of premises in the town of Onondaga formerly owned by James Hughes, deceased, northerly through Onondaga, Camillus, and Geddes to a point at the Erie canal, at or near the works of the Solvay Process Company; that the real estate the petitioner seeks to acquire is 5.86 acres in town of Onondaga, its description being given, and the names and places of residence of those who own, or claim to own, the lands are stated to be Charles Hughes, James Hughes, and Eugene Hughes, of Syracuse, and the Solvay Process Company, of Geddes; that the described real estate is required and necessary for the purposes of the incorporation of the petitioner, for the purpose of constructing and operating its road, and of erecting and maintaining necessary and convenient buildings, stations, fixtures, and machinery for the accommodation and transaction of its business; that the petitioner has not been able to acquire title for the reason that the owners refuse to sell for a reasonable compensation. The present appellants answered, admitting that they owned the real estate described in the petition, and that the petitioner bad constructed a double cable from Split Rock to the Solvay Process Company for the purpose of carrying stone to that company, and denying,.in substance, all the other allegations. They also alleged that the petitioner is a private corporation for private uses; that the lands sought to be taken are not necessary for its buildings, but valuable quarry lands, and are only sought for the use of the Solvay Process Company, and that the Solvay Company own, control, and operate the petitioner as an adjunct to their business in the manufacture of soda ash, and the cablexoad company is intended for no other use. After a trial at special term, the order appealed from was made.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Hogan & Stern, for appellants. Tracy, McLennan & Ayling, for respondent.
   Merwin, J.

In cases of this kind, it is incumbent on the petitioner to show—First, a legislative warrant; and, second, if the right is challenged, that the business, which it is organized to carry on, is public, and that the taking of private property for the purposes of the corporation is a taking for public use. In re Niagara Falls, etc., R. Co., 108 N. Y. 375,15 N. E. Rep. 429. The articles of association of the petitioner, which are acknowledged June 13, 1888, and filed June 19, 1888, state that the subscribers “have associated together as an elevated tramway corporation, to continue in existence-for the period of fifty years, for the purpose of constructing, maintaining, and operating an elevated tramway between Split Bock and Onondaga lake, a distance of about four miles, both of which places are in Onondaga county.” The amount of .the capital stock is stated to be $52,000, and the number of directors, three. The number of shares that each subscriber agrees to take is set opposite his name, and the aggregate amount so agreed to be taken is the full amount of the capital stock. Nothing is said in the articles as to-what statute the incorporation is designed to be under, but it is claimed, and it may be inferred, that the incorporation is under chapter 462 of the Laws of 1888, entitled “An act to authorize the formation of elevated tramway corporations, and to regulate the same, ” passed June 2, 1888, and taking effect-immediately. By section 1 of that act, it is provided that any number of persons, not less than 13, “may form a company for the purpose of constructing, maintaining, and operating an elevated tramway, constructed of poles, piers,, wire, rods, ropes, bars, or chains, for the transportation of freight in suspended buckets, cars, or other receptacles for hire; and for that purpose may make and sign articles of association, in which shall be stated the name of' the company; the number of years the same is to continue; the places from, and to which the said tramway is to be constructed, maintained, and operated; the length of said tramway, as near as may be; the name of each county in this state through or in which it is made, or intended to be made; the amount of the capital stock of the company, and the number of shares of which said capital stock shall consist, and the names and places of residence of the directors of the company, which shall not be less than three, who shall manage its affairs for the first year, and until others are chosen in their places.” By section 6 it is provided that every corporation formed under the act “shall have power and authority (1) to cause such examination and surveys for its proposed tramway to be made as may be necessary to the selection of the most advantageous route, and for such purposes, by its officers and servants, to-enter upon the lands or waters of any person, but subject to responsibility for all damages which shall be done thereto; (2) to lay out its tramway and to-construct the same as hereby provided.” By section 7 it is provided that, in case any company formed under the act is unable to agree for the purchase, use, or lease of any real estate required for the purposes of its incorporation, it shall have the right to acquire title in fee to the same in the manner and by the proceedings provided by law for acquiring title to lands for railroad use by railroad corporations, under the provisions of chapter 140 of 1850, and the several acts amending the same, or supplemental thereto, so far as the same are applicable. By section 9 any corporation formed under the act has power and authority to erect and maintain all necessary and convenient buildings, stations, fixtures, and machinery for the accommodation and transaction-of its business. The act does not in terms provide that the property taken shall be deenied to be for public use, or that the tramways are to be constructed for public use. The capital stock of the petitioner was all paid in, and in June, 1889, it completed its tramway from Split Bock northerly to near the Erie canal,—a distance of about three and a half miles,—and since then it has been in operation. The tramway consists of two elevated cables, held upon supports, and parallel to each other, about 10 feet apart, on which run buckets by means of a trolley or pulley, one line taking the buckets that have been filled, and the other line taking back the buckets which are empty. The location of the southern terminus of this tramway is upon the land of the petitioner, just north of the lands now desired to be taken, and is in a gorge about 90 feet lower than the Hughes land. This terminus seems to be the southern terminus of the line of the tramway, as indicated upon the map or profile originally filed by the company. The company has filed no map indicating that its route extended over the lands in question, and the original map filed by the company did not indicate that the lands in question were to be taken for the purposes of the company. In the vicinity of this southern terminus, as so located, the Solvay Process Company owns upwards of 100 acres of land, upon which are quarries, and which entirely surrounds the terminus as well as the Hughes lands, and shuts them out entirely from any highway. There is to the Hughes land a road, but it is owned by individuals, and is not a public road. Who are the owners of this private road, does not appear. The highway is about 1,200 feet distant. The northern terminus of the tramway, as now built, is on the land of the Solvay Company, at the limekiln of their works, about 500 feet from the Erie canal. The route of the tramway, as projected, extends northerly some distance over the Erie canal and the Central Railroad to Onondaga lake. The carrying capacity of the road, as now constructed, is testified to be 750 tons a day. They have thus far carried for the Solvay Company 350 to 400 tons of stone a day, and seem to have been kept running night and day. They have not carried anything for any other party. The Solvay Company is a large concern, and its business is increasing. The incorporators of the petitioner were practically all stockholders in the Solvay Company. The surplus of the capacity of the road, after supplying the Solvay- Company, is, according to the evidence of the president of the petitioner, to be devoted to public use in carrying in buckets freight, offered to it by any person, suitable to the buckets and to the road. What that surplus may be, as the Solvay Company continues to develope, is uncertain. The evidence clearly shows that the business of the petitioner will be subservient to the Solvay Company. The road has thus far been entirely for its benefit. The intention of the petitioner, as its president testifies, is to use the land in question to increase its terminal facilities by building tramways on the surface to facilitate the carrying of stone to the cable station, by erecting buildings for the storage of freight, and for repair-shops, and to furnish means of access. The petitioner has other land that might be used for terminal facTities, but it is not so convenient. Aside from stone, the chief subject for freight is said to be coal, and, in regard to that, the president testifies: “We intend to make a contract with some private individual to furnish him with coal, so that he can transport it or sell it to people in that vicinity, to establish a coal-yard the same as anywhere, not that the Solvay Process Company, or the cable company, will establish a coal-yard. Some individual will have to run it, with whom we will make a contract to carry coal, and we propose to limit that contract to one individual for the present.” This would hardly be a public use.

The appellants own the property" in question, and it consists of a valuable quarry. Their contention is that the only object of this proceeding is to compel them to sell it for the benefit of the Solvay Company. If the question of public use is to be determined from the nature of the business of the cable company, as described in its articles of association, then there would be a failure to show a design to construct a way for public use. Ho such design is stated in the articles. An elevated tramway is not necessarily public. It may or may not be. The public use or purpose should affirmatively appear. Attorney General v. City of Eau Claire, 37 Wis. 401. If left optional with the future management of the company, it would at least be doubtful whether a good basis would be furnished for the exercise of the right of eminent domain. Hor does the statute of 1888 fix a public character upon such corporations, except, possibly, by way of inference. The organizations under that act are not limited to roads for public use, nor is the property acquired declared to be for public use. In this respect it differs from the present railroad act, (chapter 140 of 1850, §§ 1, 18,) and from the act for the organization of pipe lines, (chapter 203 of 1878, §§ 1, 20.) The president of the company, however, testifies that it is the intention of the corporation to carry all freight that may be offered, of the kind it can carry, up to the extent of its capacity. In other words, it is intended that the corporation shall be a public one in the nature of a highway. What action the board of directors as such may have taken on the subject does not appear. So that apparently there is nothing to prevent the board of directors, or some future president, from having a different view. The plant of the company has cost about $50,000, so that the capital is substantially exhausted. Nothing is shown as to the means of the company for enlarging its boundaries, or increasing its facilities. The true criterion by which to judge of the character of the use is whether the public may enjoy it by right or only by permission. Mills, Em. Dom. § 14; Kettle River R. Co. v. Eastern Ry. Co., 41 Minn. 461, 43 N. W. Rep. 469. The undertaking of a common carrier is to carry for all people indifferently. 2 Kent, Comm. 598. If, in the present case, there is no access to the southerly terminal except, over a private road, then the public cannot at that end use the cable except at the will of the owner of such private road, or of the Solvay Company, the owner of the surrounding territory. So, if the cable company is run subservient to the interest of the Solvay Company, and the general public have no opportunity to use it, except as there may be a surplus capacity after supplying the uncertain and increasing wants of the Solvay Company, then the cable company is not in the position of a common carrier. The service of the Solvay Company is the main object, the service of the public is subordinate and contingent. For such a service, the right of eminent domain should not be exercised. In re Eureka, etc., Manuf’g Co., 96 N. Y. 42; In re Niagara, etc., Ry., 108 N. Y. 375, 15 N. E. Rep. 429. As said by Huger, C. J., in Re Staten Island Rapid Transit Co., 103 N. Y. 257, 8 N. E. Rep. 548: “The exercise of this power is in derogation of individual rights, and is always burdensome, and often injurious, to the owner beyond the power of pecuniary compensation to wholly redress, and should be allowed only when the necessity for the land clearly appears, and its proposed use clearly embraced within the legitimate objects of the power.” Having in view the manner and form of the organization of the petitioner, and its subsequent acts, the location of its southerly terminus, and the absence of public approach, its private use thus far, and the lack of opportunity for the public to use, except after the wants of another company are supplied, and its apparent subserviency to the interests of that company, and the contingent and uncertain character of any future developement for the benefit of the public, we are of the opinion that the evidence does not establish the conclusion that the taking, here sought to be made, is for public use. It follows that the order should be reversed, and proceedings dismissed, with costs. Code Civil Proc. § 3240; In re Eureka, etc., Manufg Co., 96 N. Y. 42, 49; In re New York, L. & W. Ry. Co., 26 Hun, 592. All concur.  