
    
      In re application of the Niagara Falls and Whirlpool Railway Company to acquire certain real estate of The De Veaux College for Orphan and Destitute Children et al.
      
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1888.)
    
    1. Eminent domain—Condemnation of lands—Railroad—When not ENTITLED TO TAKE LANDS BY EIGHT OF EMINENT DOMAIN.
    On the application of the Niagara Falls and Whirlpool R. R. Company (a corporat on organized in 1886, under the general railroad act of 1850) to acquire certain lands, it appeared that the proposed railroad had no proper termini, that it was not a highway in any just or proper sense, that it could not transport freight, that at most it could be operated but a portion of the year, and that the sole object of its construction was to enable the corporation for a compensation to be received to provide for the portion of the public who might visit ¡Niagara Falls, better opportunities for seeing the natural attractions of the locality. Held, that it lias not a public purpose which would justify the taking of the lands in invitum for the construction of its road in the exercise of the power of eminent domain.
    3. Same—What eaileoad taking land by eight of eminent domain must BE ABLE TO SHOW.
    The particular corporation which claims the right to exercise the power of eminent domain must be able to show a legislative warrant, and that being shown it must be able further to establish, if the right is challenged, that the particular scheme in which it is engag'd is a railroad enterprise within the true meaning of the decision which justifies the taking of private property for railroad purposes, or 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.
    3. Same—Legislatuee to detebminb the necessity and manneb of taking PBIVATB PBOPEBTY FOB PUBLIC USE.
    When the uses are in fact public, the necessity or expediency of taking private property for such uses by the exercise of the power of eminent domain, the instrumentalities to be used and the extent to which such right shall be delegated are questions appertaining to the political and legislative branches of the government.
    
    4. Same—Coubt to detebminb whetheb use is in fact public.
    The question whether the uses are in fact public so as to justify the taking in invitum of private property therefor is a judicial question to be. determined by the courts.
    Appeal from an order of the supreme court general term, fifth department, affirming so much of the order of the Erie county special term denying to petitioner the right to appropriate and condemn, for railroad purposes, certain lands of said college, and reversing so much of said order of the special term as appointed commissioners to appraise the compensation which should be made to said college for the taking of certain other lands.
    
      Norris Morey, for app’lt; A. K. Potter for resp’t.
    
      
       See 11 N. Y. State R., 632.
    
   Andrews, J.

This is a question in limine which' it is necessary to decide in favor of the petitioner before the other questions argued become material. This is the questian, whether the purposes for which the Niagara Falls and Whirlpool Railway Company is organized are public ip such a-sense as to justify the taking of lands in invifum for the construction of its road in the exercise of the power of eminent domain. The Niagara Falls and Whirlpool Railway Company is a corporation, organized in January, 1886, under the general railroad act of 1850. The articles of association declare that the company is organized for the purpose of “constructing, maintaining and operating a railroad for public use in transporting persons and property, of the guage of not more than three feet and six inches, and not less than thirty inches within the rails.” The route of the road is described as “commencing at a point near the foot of the inclined railway which extends from Prospect Park to near the easterly margin of Niagara river, such point of beginning being a short distance below the foot of the American Falls on the American side of the Niagara river in the county of Niagara, and running thence (by the most direct and feasible route) along the easterly margin and near the water’s edge of said Niagara, river, and terminating at a point on said easterly margin of said Niagara river, about four hundred feet below and northerly from the foot or outlet of the portion of Niagara river commonly known as the whirlpool.”

It is necessary to a just understanding of the question presented to refer to some additional facts disclosed by the evidence. The Niagara river from the foot of the American Falls flows northerly for several miles with a very rapid current, and the river on either side is faced by precipitous cliffs, that on the American side rising from near the edge of the river to a height of from one hundred and fifty to two hundred feet to the table land above.

The river from the falls fco the point known as “the whirlpool,” is interesting, and persons visiting the falls have been enabled, by means of what is known as the Inclined Railway, to descend from the top of the bank or table land to the margin of the river. This railway was originally a private enterprise, but is now included in the land taken by the state for a state reservation. The “whirlpool” adjoins the lands of DeVeaux college.. The college has constructed a stairway leading down to the margin of the river at this point for the convenience of visitors, and derives a revenue from its use. The petitioner has located its road along the margin of the river, outside of the cliff, where the space is sufficient between the cliff and the river to permit the track to be laid, and at other points, where the cliff rises with more abruptness from the margin, the location contemplates cutting into the face of the cliff for the roadway. The proposed road does not connecfc at either end with a highway; It can be reached only by passing over the lands of the state or the lands of private owners. There can be no habitation along the line of the road, and no traffic, or commerce, or business, except in conveying passengers over the road to see the river and “the whirlpool,” and returning them again to the point from which they started. The season for visitors at the falls is substantially confined to June, July, August and September. The proposed road cannot be operated during the winter on account of the piling up of the ice, and if its operation was practicable in the winter season it would have nothing to do. It is apparent that the proposed enterprise has been undertaken and is to be carried on for the sole purpose of furnishing sight-seers, during about four months of the year, greater facilities than they now enjoy for seeing the part of Niagara river along which the proposed road is to be constructed. Soon after the passage of the general railroad act of 1850, the question was raised as to the validity of the act in so far as it attempted to confer upon any corporation which might thereafter be created under its provisions, the power to determine when and what private property might be compulsorily taken for the purposes of its road, and it was held that the act was a constitutional delegation of the power of eminent domain. Buffalo, etc., R. R. Co. v. Brainard, 9 N. Y., 100.

The expediency of this legislation has been questioned. In the infancy of railroad enterprises there was little danger that railroads would be projected, not required by public necessity, or where the public interests would not be subserved by their construction. But the plan of permitting any persons, who might deem it for their interest to do so to unite and organize a railroad corporation and to fix the route, subject practically to no supervision or control by any public authority, and to invade and take private property for the purposes of the road, wherever the company should see fit to locate it, is attended with some unquestionable evils. It is probably true that many speculative railroad enterprises have been initiated and carried on under this liberal legislation, which would not have been authorized if a special charter in each instance had been required, or if the power of determining as to the necessity of the road had been lodged with some disinterested public body. The right of the state to authorize the condemnation of private property for the construction of railroads, and to delegate the power to take proceedings for that purpose, to railroad corporations, has become an accepted doctrine of constitutional law and is not open to debate. But the power is dormant until the legislature'authorizes its exercise, and the particular corporation which claims the right to exercise the power, must be able to show a legislative warrant and that being shown, it must be able further to establish, if the right is challenged, that the particular scheme in which it is engaged, is a railroad enterprise within the true meaning of the decisions, which justify the taking of private property for railroad purposes, or 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 baking for public use. The general principal is now well-settled that when the uses are in fact public, the necessity or expediency of taking private property for such uses by the exercise of the power of eminent domain, the instrumentalities to be used and the extent to which such right shall be delegated, are questions appertaining to the political and legislative branches of the government, while on the other hand the question, whether the uses are in fact public so as to justify the taking in invitum of private property therefor, is a judicial question to be determined by the courts. Beekman v. Saratoga and Schenectady Railroad Company, 3 Pai., 45; In re Cemetery Association, 66 N. Y., 569; In re Application Union Ferry, 98 id., 139-153.

If the question whether the purposes and objects for which the petitioner, the Niagara Falls and Whirlpool Railway Company, is organized, are public, so as to justify the exercise in its behalf of the right of eminent domain, is controlled and is to be tested exclusively by the description of those objects and purposes as they are set forth in its articles of association, there could be no hesitation in concluding that the company is entitled to take the proceedings now in question, unless the particular property now sought to be taken is, on special ground, exempt from condemnation. Looking at the articles of association alone, it appears that the company is a railroad corporation, organized under the general railroad act, for ‘'public, use in transporting persons and property” by a railroad to be constructed between certain termini. The papers, on their face, show that the corporation has undertaken an ordinary railroad enterprise within the purview of the act of 1850, in aid of which the power of eminent domain may be appropriately exercised. But when we look beyond the formal documents, and the actual business proposed to be conducted is considered, we find that the proposed railroad has no proper termini, that it is not a highway in any just or proper sense, that it cannot, by reason of necessary limitations, perform one part of the duty it has undertaken, viz.: The transportation of freight; that at most it can be operated but a portion of the year, and that the sole object of its construction is to enable the corporation for a compensation to be received, to provide for the portion of the public who may visit Niagara Falls, better opportunities for seeing the natural attractions of the locality, we feel constrained to say that in our judgment this is not a public purpose which justifies the exercise of the high prerogative of sovereignty invoked in aid of this enterprise. The right of the company being challenged on this ground, the court is compelled to consider it, and it is manifest that the inquiry is not precluded because the petitioner has organized itself under the general railroad act, and has assumed in its. articles of association the character of an ordinary railroad corporation.

What is a public use is incapable of exact definition. The expressions, public interest and public use, are not synonymous. The establishment of furnaces, mills and manufactures, the building of churches and hotels and other similar enterprises are more or less matters of public concern, and promote in a general sense, the public welfare. But they lie without the domain of public uses, for which private ownership may be displaced by compulsory proceedings. The ground upon which private property may be taken for railroad uses, without the consent of the owner, is primarily that railroads are highways furnishing means of communication between different points, promoting traffic and commerce, facilitating exchanges, in a word they are improved ways. In every form of government the duty of providing public ways, is acknowledged to be a public duty. In this state the duty of laying Out and maintaining highways has, in the main, been performed directly by the state or by local authorities, but from an early day the legislature has from time to time delegated to turnpike corporations the right and duty to maintain public roads in localities, and canal companies have been organized with powers of eminent domain.

It would be impracticable and contrary to our usages for the state to enter upon the business of constructing and operating railroads, and in analogy to the delegation of the power of eminent domain to turnpike and canal companies,, it wisely delegates to corporate bodies the right to construct and maintain railroads as public ways for the transportation of freight and passengers, and as incident thereto the right to take private property under the power of eminent domain on making compensation. In considering the question what is a public use for which private property may be taken in invituniJuáge Cooley (Canst. Lira., 669), remarks, “tint can only be considered such when the government^ is supplying its own needs, or is furnishing facilities for its citizens in regard to these matters of public necessity which on account of their peculiar character, and the difficulty, perhaps impossibility, of making provisions for them otherwise, it is alike proper, useful and needful for the public to provide.” Whatever rule, founded on the adjudged cases, may be formulated on this subject, it cannot, we think, be framed so as to include the present case.

The fact that the road of the petitioner may enable the portion of the public who visit Niagara Falls more easily or more fully to gratify their curiosity, or that the road will be public in the sense that all who desire will be entitled to be carried upon it, is not sufficient, we think, in view of the other necessary limitations, to make the enterprise a public one so as to justify condemnation proceedings. The case does not, we tíiink, differ in principle from an attempt on the part of a private corporation, under color of an act of the legislature, to condemn lands for an inclined railway, or for a circular railway, or for an observatory, to promote the enjoyment or comfort of those who may visit the Falls.

The state has under recent legislation taken lands for a park or public place at Niagara Falls. The taking of lands by municipalities for public parks is recognized as a taking for public use. The Brooklyn Park Commissioners v. Armstrong, 45 N. Y., 234; In re Mayor, etc., 99 id., 569. They contribute to the health and enjoyment of the people and are laid out with drives and ways for public use. The Nahant Road (11 Allen, 530), The Mount Washington Road (35 N. H., 134), were justified on the ground that they were public highways in the ordinary sense, although primarily intended as pleasure drives.

It is as we have said difficult to make an exact definition -of a public use. We are conscious of the serious responsibility which the court assumes in undertaking to declare that not to be a public use, which the legislature has declared to be such. '1 he validity of an act of the legislature is not to be assailed for light reasons. It is especially necessary that the question of what constitutes a public use should not be dealt with in a critical or illiberal spirit, or made to depend upon a close construction adverse to the public. But having these considerations in mind, we are nevertheless constrained to conclude that the enterprise in question -is essentially private and not public, and that private property cannot be token against the will of the owners for the construction of the road of the petitioner.

The order appealed from should therefore be affirmed.

All concur.  