
    Katherine K. Peck and Others, Respondents, v. Schenectady Railway Company, Appellant.
    
      Street railroad — its occupation of a street of which the fee is in the abutting owners jg 77 enjoined — the damages will not be assessed in the equity suit, nor will security be taken and an injunction be denied.
    
    The appropriation, by an electric street railway company of a street, the fee of which is in the abutting owners, constitutes a taking of private property.
    Where the railway company procures the consent of the necessary local authorities, but fails to secure the consent of one-half the abutting owners, and obtains the appointment of commissioners to determine whether such road shall be constructed, and threatens, after such commissioners have reported in favor of the construction of the road, in case such report shall be confirmed by the Appellate Division, to begin the construction of the road, an abutting owner having title to the fee of the street is entitled to an injunction restraining the construction of the road.
    The court will not, against the abutting owner’s protest, assess the damages which such owner will sustain by reason of the construction of the road, and grant an alternative judgment such as is usual in the elevated railroad company cases, nor will it deny the abutting owner relief upon the railway company’s giving adequate security for the payment of any compensation which may be found to be due to her by reason of the appropriation of her land.
    Appeal by the defendant, the Schenectady Railway Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schenectady on the 27th day of November, 1901, upon the decision of the court rendered after a trial at the Albany Special Term, enjoining the defendant from constructing a proposed street railway in the street upon which the premises of the plaintiffs abut. .
    The complaint alleged the ownership by the plaintiffs of certain premises upon Washington avenue in the city of Schenectady, and the ownership of the fee to the center of the said avenue adjoining said premises; the intention and threat of the defendant to construct a street railway upon said avenue, and upon that part thereof belonging to the plaintiffs. Plaintiffs ask an injunction restraining the defendant from the use of said street for such purpose.
    The answer in effect admits defendant’s purpose and intent to construct said railroad, but denies plaintiffs’ ownership of the premises. Upon the trial plaintiffs’ ownership was proven and it was admitted that the defendant upon obtaining the confirmation of the report of the commissioners in favor of the construction'of its road intended to construct the same, and the plaintiffs rested. Defendant proved that it had the consent of the necessary local authorities, and, having failed to get the consent of one-half of the property owners, had procured the appointment of commissioners to deter, mine whether such road should be constructed; that such commissioners had reported in favor of the railway company, and that the matter of the confirmation of that report was before the court. The defendant endeavored to prove that the construction and operation of its road would in no way diminish the value of plaintiffs’ premises, which proof was rejected by the court. The defendant then offered to furnish any security that might be asked by the court to pay -any indemnity to the plaintiffs for any loss that might be sustained by reason of the construction of the road, and by way of the assurance of the payment of any damages, either rental or fee, or compensation of any other kind to which it may be finally decided that the plaintiffs are entitled by reason of the maintenance or construction of defendant’s road. Thereupon the ease was submitted to the court, which rendered the judgment from which -this appeal is taken.
    
      Marcus T. Hun, James A. Van Voast and James O. Carr, for the appellant.
    
      Edward Winslow Paige, for the respondents.
   Smith, J.:

Defendant’s objection to this judgment on the ground that the complaint failed to allege damage seems to be answered by the case of Amsterdam Knitting Company v. Dean (162 N. Y. 278). (See, also, Pratt v. Roseland Railway Company, 50 N. J. Eq. 150 ; Western Maryland Railroad Co. v. Owings, 15 Md. 199.) The appropriation by a street railroad company of a street in which the abutting owner has the fee is the taking of private property within the settled law of this State. (Craig v. Rochester City & Brighton R. R. Co., 39 N. Y. 404; Henderson v. N. Y. C. R. R. Co., 78 id. 423; Fobes v. R., W. & O. R. R. Co., 121 id. 505 ; Reining v. N. Y., L. & W. R. Co., 128 id. 157; Palmer v. Larchmont Electric Co., 158 id. 231.) With the fee of the land then in the plaintiffs, and the threatened continued occupation of that land by the defendant, plaintiffs’- right to an injunction would seem to be clear.

But upon the trial defendant offered, first, that the court should estimate the damage which the plaintiffs would suffer by reason of defendant’s appropriation of any property rights which the plaintiffs might have, and also to give any undertaking which the court might require to indemnify the plaintiffs for any damage they might suffer by reason of the defendant’s appropriation of their land. Upon this offer it is strenuously insisted that the court should not exercise its equitable power of injunction where the plaintiffs would thus have ample protection for any damage which they might suffer. The cases against the elevated railroad in New York city and Brooklyn are cited as cases where the courts gave the alternative judgment which permitted the defendant to pay the damage which it found to be due, in which case the injunction would be denied. As far as we have been able to examine, however, all of these cases were cases in which the plaintiff elected to try the question of damages before the court, and to take the alternative judgment. They were also all cases which sought to enjoin a road which was in operation. To this, however, there is one exception, to wit, Story v. New York Elevated R. R. Co. (90 N. Y. 122). In that case it was sought to enjoin the construction of a road and the trial court denied the plaintiff’s relief. When the case finally reached the Court of Appeals the decision was reversed, and plaintiff was there given relief. But at that time the road had been in operation for five years. In all those elevated railroad cases possession of the street had been given by the municipal authorities, the fee of the street being in the municipality, so that the plaintiffs were rightfully in possession. No case is cited where an alternative judgment, such as is asked for here, has been rendered, where the possession was still in the plaintiff and the road had not , been constructed. By section 1 of article 1 of the State Constitution it is provided that “ When private property shall be taken for any public use the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law.”' To hold that the court should, against the protest of the plaintiffs here, assess the damage and grant an alternative judgment would practically deprive the plaintiffs of their con stitutional right to the assessment of such damage either by a jury, or by a commission of not less than three persons. We are of opinion, therefore, that the court should not, if it could, as against the plaintiffs’ protest, assess the damage in this action and grant, alternative relief.

It is further urged by the defendant that the court should deny the injunction upon its giving adequate security for the payment of any compensation which might lawfully be found to be due the plaintiffs by reason of the defendant’s appropriation of théir land. To this proposition two answers seem pertinent. The first is that the defendant has established no right to this land. The record does not disclose that the defendant has taken the preliminary steps required by the statute to authorize the condemnation of private property. Another answer is that by the Condemnation Law (Code Civ. Proc. §§ 3357-3384) the possession of land sought to be condemned is only assured to a party already in possession of that land. If not in possession, possession will only be given by the court, prior to actual condemnation, after the defendant’s answer in. the condemnation proceeding is interposed, and then only by a deposit in court of the amount of damages claimed in said answer. While these statutes do not assume to limit the court in the exercise of its equitable discretion, they indicate the policy of the Legislature, which should be a guide to the court in the exercise of that discretion,-and to this extent create a limitation upon its power.

The defendant further complains that, the injunction is permanent, and would restrain the defendant’s entry upon plaintiffs’ land even after a right acquired by condemnation. In the first place this apprehension is wholly speculative. If this judgment should be deemed so to operate, it would be at any time amended upon defendant’s subsequent acquisition of any right of entry. We are satisfied, however, that such is not the effect of the judgment. It is' not operative as against any rights hereafter acquired.

These conclusions lead to an affirmance of the judgment .below.

Judgment unanimously affirmed, with costs.  