
    In the Matter of the Application of The Rochester Electric Railway Co., to Acquire Lands of Jennie S. Wilkin et al.
    
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    1. Eminent domain — Railroads—Laws 1884, chap. 252.
    A street railroad has authority, under chap. 252, Laws 1884, to take private property by condemnation.
    '3. Same — Highways.
    The control and oversight of a commissioner of highways does not cease because a turn, ',e company appropriates a highway of the town to its use, and the consent of the commissioners is necessary, under § 3 of the act, to the use of such highway by the railroad.
    -3. Same — Maps must be piled.
    The railroad company should file a map clearly pointing out the route so that those interested can determine whether there are good grounds of opposition.
    Appeal by the land owners from an order of the special term held in Monroe county.
    
      J. & Q. Van Voorhis, for app’lts ; James Bréele, Perkins, for resp’t.
   Corlett, J.

The highway from Rochester to Charlotte, which is an extension of Lake avenue, is five miles in length. It has been, for a long time, the main thoroughfare from Rochester to the lake. This highway was bounded by a row of shade trees on each side for nearly the whole length. In 1880 the Rochester & •Charlotte Turnpike Road Company was organized for the purpose of maintaining this highway as a turnpike, with a charter extending thirty years. Soon after the company, by purchase from the adjoining land owners, obtained a strip seventeen feet wide on each side, for a bridle path, upon which the owners moved back their fences. The language of the deed was: “ For value received of the Rochester & Charlotte Turnpike Road Company, a corporation organized under the laws of the state of New York, we, the undersigned, respectively, grant and convey to the said corporation, and to its successors and assigns, a right of way in, over and through a strip of land seventeen feet in width, to be measured and taken off the front of the lands belonging to us, respectively, fronting on and along the highway running from the northerly boundary line of the city of Rochester, Monroe county, and state of New York, to the village of Charlotte (and formerly known as the Rochester & Charlotte Turnpike Road), in the town of Greece, in said county, for the purpose of building and constructing and operating the turnpike road of said corporation about to be built”

On the 11th of November, 1887, in consideration of $6,000, said turnpike company consented to allow the Rochester Electric Railway company to construct, operate and maintain its street surface railway along the west side of the bridle-path between Rochester and Charlotte. In August of the same year a map and profile were filed by the railroad company calling for such strip twelve feet wide on the west edge of the bridle-path. The map which was filed had lines indicating the original lines of the roadway, and the dividing lines between that and the bridle-path. The petition filed described the strip as follows: “ The land which it desires, belonging to the land owners in the present proceeding, was a strip twelve feet wide on the west edge of the bridle-path, and no more.”

A railroad was built along that route from Rochester to Charlotte. Its motive power was electricity. The present petition was verified on the 15th day of November, 1889. It contains the. same phraseology as the one of 1888, except as to dates, parties and route. It makes no mention of the railroad which had been 'built, and alleges that it has surveyed a route for its road, and that it has not been able to purchase the same, and describes a strip of land on the eastern edge of the bridle-path twelve feet wide. It also alleges the filing of a map and survey of the route. No map was ever filed except the first one.

An answer "was interposed by the objecting land owners, and a reference was ordered to John A. Carnahan, Esq., to report the facts with his opinion thereon. He made his report on the 17th day of February, 1890, and decided that the railroad had power to acquire lands without consent in this proceeding; also that the company was under no obligations to file any map. He further held that no consent from any authorities of the town of Greece had been obtained, and that none was necessary. He further reaches the conclusion that the consents of the owners of one-half the value of the property bounded on the highway had been obtained.

This street railroad was built under chap. 252 of the Laws of 1884. Section 1 provides, among other things: “ Such corporations shall also have all the powers and privileges granted, and be subject to all the liabilities imposed by this act, or the act entitled ‘ An act to authorize the formation of railroad corporations, and regulate the same,’ passed April 2, 1850, and the several acts amendatory thereof, except as such acts are herein modified.”

Section 22 of the act of 1850, as amended by chap. 560 of the Laws of 1871, provides: “ Every company formed under this act before constructing any part of their road into or through any county named in their articles of association, shall make a map and profile of the route,” etc.

Section 3 of the Laws of 1884 requires the consent of the local authorities having control of that portion of the streets or highways upon which it is proposed to construct and operate the railroad.

The report of the referee was confirmed; from that order the •contesting land owners appeal.

The appellants contend among other things that a map should have been filed, and that the consent of the local authorities and the highway commissioner of the town of Greece should have been obtained. The appellant also insists that private property cannot be obtained without the consent of the owners. It is manifestly the design of the act of 1884 to confer power upon street railroads to acquire property belonging to private individuals by condemnation. Section 1 provides among other things that a street railroad corporation shall have the same powers as those conferred by the act of 1850. Section 3 among other things provides that a street railroad company may build its road, switches, etc., through, upon and along any of the streets, avenues, roads or highways of such cities,towns, villages, and also through, along and upon any private property which said company may acquire for the purpose.

It thus appears that the same power is conferred upon street railroad corporations as upon general railroad corporations, except .as limited by the act, which contains nothing prohibiting the taking by condemnation proceedings of private property. The consent required by § 3 implies power to take the lands of those who do not consent.. The owners of adjoining lands have title to the highways subject to the easement; aside from this, it will be observed that the power of street railroads to acquire or build roads is not limited to public highways. It may take any land not connected with highways. The want of condemnation power might utterly prevent the building of the most useful of street railroads.

The learned referee in his opinion proceeds upon the assumption that the Boulevard Turnpike Company controlled and practically owned the highway, and that the power of the commissioner over it had practically ceased, and therefore his consent not necessary.

In Walker v. Caywood et al., 31 N. Y., 51, it was held that a public highway does not cease to' be such because taken by a plank road company, and that the right of the public to use the highway remains unimpaired.

To the same effect is Benedict v. Goit, 3 Barb., 459.

It thus appears that neither a turnpike company or a plank road ■corporation has power to destroy an highway or to appropriate it to its exclusive use. The public still have the right to travel upon .all its highways until they cease to exist. The diverting an highway from its ordinary use to railroad purposes necessarily involves matter of grave concern to the public as well as land owners. Craig v. Rochester City & Brighton R. R. Co., 39 N. Y., 404.

The control and oversight of a commissioner of highways does ■not cease because' a turnpike company appropriates some of the roads of the town. He still owes a duty to the public. A continuous obligation rests upon him to see that the highways of the town are protected and kept for public use and travel. He maybe of the opinion that the use of twelve feet of an highway for street railroad purposes would inflict no injury upon the travellingpublic ; but he may reach the conclusion that the taking of another twelve feet would practically destroy its usefulness. The turnpike company, as the case shows, sold the privilege of use of the highway to the railroad company for a large consideration, which it may be assumed was kept for the use and benefit of the company, and that the town received no advantage therefrom.

The reasoning of the learned referee proceeds on the assumption that neither the public officers of the town or the public have any concern in an highway or the uses for which it is appropriated, after it is turned over to a turnpike corporation. This view cannot be sustained. Its adoption would confer upon turnpike companies and plank road corporations power to destroy the usefulness of the highways of the town without its consent, or that of its inhabitants or officers.

The learned referee also argues that there is a broad distinction between the reasons for filing a map in the case of steam corporations and street railroads. But it is quite clear that they do not extend to the length stated by him. Highways are of varying width; a railroad track might without serious inconvenience be placed upon one part of a public highway, but would injuriously affect another. It might be so constructed as to seriously interfere with the owners of land on each side of it, or it might be so built as to impose no particular inconvenience. The railroad company, therefore, should file a map clearly paining out the route so-that those interested could determine whether there were good grounds of opposition. The absence of a map would frequently prevent that accurate knowledge which would enable owners and those concerned to determine whether to resist or acquiesce. No-reason, therefore, is perceived why a street railroad should be relieved from filing a map the same as steam corporations. Aside from this, as already shown, street railroads may be built through private lands, outside of any highways, and certainly there would be just as strong reasons for the filing of a map in such cases asín that of steam roads. In addition to this, § 1 provides that such corporations shall have all the powers and be subject to all the liabilities imposed by the general railroad act, except as modified. There is no force in the contention that the obtaining of twelve feet for a railroad confers authority to appropriate an additional twelve feet.

There is nothing in the act of 1884 which exempts street railroads from filing maps.

It is not necessary to determine the question of whether the consents were sufficient, as the conclusions reached as to the highway commissioner and the filing a map disposes of the appeal.

The order should be reversed.

Dwight, P. J., and Macomber, J., concur.

Order reversed, with ten dollars costs, and motion denied.  