
    Alice N. Burt et al., Pl’ffs, v. The Lima & Honeoye Falls Railroad Co., Def’t.
    
      (Supreme Court, Chambers,
    
    
      Filed September 15, 1892.)
    
    1. Raikroad—Highways.
    The occupation and use of highways contemplated by chap. 565, Laws 1890, is only a casual or incidental matter, and does not authorize a railway company organized under the general railroad act to project and build its entire railway along the lines of the highways of the state.
    2. Same.
    Even if a railroad had the right to lay its tracks and operate its road in the highway, it cannot do so without making compensation to the owner of the fee for the additional burden thereby imposed upon the land.
    
      Motion by the defendant on an order to show cause to dissolve an injunction heretofore granted at chambers, made before the same justice who granted the injunction.
    
      E. A. Nash and George W. Atwell, Jr., for def’t and motion ; C. A. Shuart, for pl’ffs, opposed.
   Macomber, J.

The defendant is a domestic corporation organized under the general railway act, and proposes to construct and operate its steam locomotive railroad from the village of Lima, N. Y., to the village of Honeoye Falls, N. Y., a distance of four miles.

The purpose of the company is to lay the tracks and operate the road in the highways between these two villages. The route, as I understand it, would be about three miles north from the village of Lima in the highway, with a turn at right angles, east for one mile, also in the highway, to the village Of Honeoye Falls.

It is shown by the moving papers that the consent of most of the-abutting owners along this route has been obtained for this purpose and that the commissioners of highways have also consented to the construction of this railway in the highways. The plaintiffs, however, have not given their consent thereto, and consequently are entitled to maintain this action, because as abutting owners of lands' (their title extending to the middle of the highway) there would be imposed upon the highway to the injury of the plaintiffs a greater burden, if the railroad were permitted to be so constructed, than was originally contemplated in the establishment of the highways.

The affidavits in behalf of the motion show that whatever may be the absolute rights of the defendant, organized under the general railway act, it has no purpose, as a matter of fact, in operating a steam railway in the usual manner in which such railways are conducted; on the contrary, they show that the motive power is to-be what is called a steam motor rather than a steam engine, which,, as I understand it, is nothing more or less than a light steam engine.

They further aver that they intend to operate the road very' much like a street railway, stopping at any place along the highway when any person desires to get aboard or get off the cars. While the good faith of these promises is not to be questioned, I think the court is bound to look at the case in the light of the actual rights which would be secured to the defendant if permitted to operate its road at all. The track, as I understand it, is of the standard gouge, which would admit cars or locomotives from any of the ordinary railways operated in the state. By the 4th section of the railroad act, chap. 565 of the Laws of 1890, the defendant, it is true, would be permitted, if such occupation was required, to construct its railroad “ across, along or upon ” any highway which it should encounter in the route which it had laid out. But such occupation and use of the highways as was contemplated by this statute is only a casual or incidental matter, and does not, I think, authorize a railroad company so organized to project and build its entire railway along the lines of the highways of this state. This was the conclusion reached by Mr. Justice Rumsey in an opinion which has been submitted herein, entitled: “In the matter of the application of this defendant ” to lay its tracks in the main street in Honeoye Falls, and handed down August 20th, 1892. That opinion closes as follows: “ It follows, therefore, that the court has no power to allow this company to lay its tracks in the street upon this application, and that if this company takes the highway or street for that purpose, the. tracks so put there would be a nuisance, and neither the consent of the town or village officers, or any order, would protect it” Even if I were so disposed, I should hesitate on this motion to arrive at a conclusion different from that of Mr. Justice Rumsey in the case named, which was one involving this precise question, as well as others.

But aside from this consideration, I am further of the opinion that whatever may be the rights of the defendant to lay its tracks and operate the railroad in the line proposed, it cannot do so without first making compensation to the plaintiffs. It is no answer to this proposition to say, that damages may be awarded in this action, provided a permanent injunction shall be directed to issue. If the defendant is legally organized and has properly laid out its route, and is entitled to the use of this highway, irrespective of the rights of the public, still it cannot pass the plaintiffs’ premises without first making compensation for the additional burden which the operation of a railway would impose upon their lands. No effort seems to have been made to agree witnthe plaintiffs as to suitable compensation, and no steps have been taken under condemnation proceedings, which are open to the defendant, provided it is able to establish its rights to lay out and operate its railroad on this line, and to avail itself for that purpose of the right of eminent domain.

I have attentively considered the suggestions made by the learned counsel for the defendant touching a modification of the injunction order, so as to permit the construction of the railway to proceed, after making provision for payment of the plaintiffs’ damages; but I see no way by which it may be done with due regard to the plaintiffs’ legal rights. Such a course would only postpone, not avoid the day when the defendant must, before proceeding further, establish its right to appropriate the highways of these two towns to railway purposes.

The provisions of the condemnation law are open to the defendant. If it cannot succeed under them, it ought not to succeed at all. . '

I feel constrained to deny the motion.  