
    The People ex rel. The City of Yonkers, App'lt, v. The New York Central & Hudson River Railroad Co., Resp't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    1. Highways—Failure to work for six years.
    Where a highway is dedicated to the public use, chap. 311, Laws 1861, applies, and on a failure to open or work the same for six years it ceases to be a highway.
    
      2. Same—Condemnation of land of railroad.
    Where a railroad has acquired title to a piece of land for its purposes, such land cannot be taken for another public purpose without special legislative authority and compensation to the owner.
    3. Same-Crossing tracks.
    A railroad company cannot be required to take a street across its tracks where such tracks are in constant use.
    Appeal from judgment denying relator’s application for a peremptory writ of mandamus to compel defendant to take Locust street in said city across its tracks under the provisions of chap. 62, Laws 1853.
    Prior to the year 1870, Locust street was opened from Warburton avenue to the easterly line of the lands of the Hudson River Railroad Company, now the lands of the defendant. Prior to that date, and during the year 1847, the Hudson River Railroad Company had acquired title to its roadway, which was at the point opposite the westerly end of Locust street seventy-three (73) feet in width. In the year 1870, on or about December 13th, an attempt was made to extend Locust street from the easterly line of the defendant’s lands to a point one foot west of the westerly line of the defendant’s lands by an assumed dedication of the lands embraced within such? extension, executed by Georgiana Bashford to the village of Yonkers, to whom the lands west of defendant’s had been granted by letters patent, and by proceedings taken thereon by the board of trustees of the village of Yonkers under § 31 of title 9 of chapter 673 of the Laws of 1868. It is in evidence that soon thereafter a notice was served on the part of the village authorities upon the railroad company, requiring it to take the alleged extension of Locust street across its tracks. The railroad company did not comply with such notice, and nothing further appears to have been done until 1891, when another notice was served upon the defendant requiring it to take the said alleged extension of Locust street across its tracks. The defendant did not comply with the requirements of this notice, and this proceeding was instituted to compel the railroad company, by mandamus, to take the alleged street across its tracks.
    
      Ralph F. Prime, for app'lt; Frank Loomis (Ira A. Place, of counsel), for resp't.
   Pratt, J.

This is an appeal from a judgment denying the relator’s application for a writ of mandamus and of costs to the defendant against the relator.

This proceeding was brought by the relator to compel the defendant by writ of mandamus to take Locust street, in the city of Yonkers, across its tracks, under the provisions of Chap. 62 of the Laws of 1853.

We think it is plain from the evidence and the findings that there is no merit in this application.

It could result, if granted, in no public benefit, but would sub-serve only private interests ; indeed, the people of that vicinity would be subjected to danger in the operation of the railroad, and the defendant would be subjected to much inconvenience in the curtailing of its facilities for the operation of its railroad.

We also think that the point taken by the defendant that the road in question was not opened or worked within six years from the time of its being laid out was fatal to the application and brought it squarely within the amendment to the Revised Statutes passed in 1861. Chap. 311 of the Laws of that year.

It is not necessary to discuss and distinguish the cases, which do not seem to be in full accord upon the subject, for the rule seems to be that where a highway is dedicated to the public use the amendment before referred to applies.

The case shows that the defendant had acquired the title to the piece of land sought to be turned into a public highway. Under such circumstances it could not be taken for another public use without special legislative authority and compensation to the owner; neither can the defendant be required to take the street across its tracks under chap. 62, of the Laws of 1853, where the tracks are in constant use, as was proved in this case. D. & H. C. Co. v. Village of Whitehall, 90 N. Y., 24; Pros. P. & C. I. R. R. Co. v. Williamson, 91 id., 552.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.  