
    In the Matter of the Application of the George Sweet Manufacturing Company v. John Van Der Hoof and Others, for Leave to Run a Railroad Switch upon a Certain Highway situated in the Town of North Dansville, Livingston County, New York.
    Fourth Department,
    March 9, 1910.
    Eminent domain—taking- public highway for private use—construction of railroad switch for private use — application under Railroad Law, section 30 — constitutional law.
    In a proceeding under section 20 of the Railroad Law'the court will not appoint commissioners to pass upon the feasibility and propriety of constructing a railroad switch for the benefit of a manufacturing company upon a route not described in the petition or to substitute a new route not suggested therein.
    Private property cannot be taken by eminent domain for private use. Hence, a motion made under section 20 of the Railroad Law by a private manufacturing corporation for permission to constructa railroad switch upon a public highway for petitioner’s private use will be denied where the plan includes the con- - demnation of lands belonging to private owners not included in the highway ( as well as easements in the highway owned by the abutting owners by reason ■ of the fact that they own the fee of the highway. „
    The easeme'nt of an abutting owner in a public street is private property and cannot be condemned except for public use.
    Section 20 of the Railroad Law, in so far as it assumes to authorize the taking of private property for private use, is unconstitutional and void. ■
    No one can invade a public street or highway solely for his private use. The rule that those having authority over public highways may grant certain privileges to abutting owners although the exercise thereof interferes to some extent .with the convenience of the traveling public is based on the theory that all abutting owners similarly situated also enjoy the privileges.
    Application by the George Sweet Manufacturing Company for leave to construct a switch on a public highway and take certain lands for that purpose.
    
      Fred W. Noyes, for the petitioner.
    
      Newton B. Gorham, for the defendants.
   McLennan, P. J.:

The material facts are not in dispute. The petitioner is a domestic manufacturing corporation, having its plant and principal place of business in the town of North Dansville, Livingston county, N. V. Such plant is located on the southerly side of a highway in the town of North Dansville known as the “ Hartman Highway,” which extends from the petitioner’s plant westerly, crossing the tracks of the Dansville and Mt. Morris railroad at a point about a mile distant from such plant. Said highway is straight and practically level, is three rods wide, and extends through a farming community.

The defendants own property upon either side of such highway, including the fee to the center thereof. The x petitioner is engaged in manufacturing upon its plant, which consists of about ten acres and upon which have • been erected extensive -furnaces, shops, etc., heavy machinery and castings which are transported to various parts of the country, the initial carrier being the Dansville and Mt. Morris Bailroad Company; and in the prosecution of its business it requires a large amount of raw material, coal, iron, etc., all of which must be shipped over such railroad. The amount of incoming and outgoing freight aggregates about a carload a day.

It is alleged that it is essential to the successful conduct of petitioner’s business at its present plant that it be permitted to build a switch on the highway in question connecting its plant with the tracks of the Dansville and Mt. Morris railroad, and that only in such way can it obtain proper shipping facilities. It is alleged that the construction .of such a switch upon the center line of such highway will not impair its .usefulness as a highway; that it is proposed to construct a driveway upon each side of such switch twelve feet in width, which will afford ample facilities for all having occasion to drive upon or use such highway.

On the 18th day of November, 1909, the town board of North Dansville duly passed a resolution granting permission to the petitioner to construct the switch asked for upon the center line of such highway, upon condition, however, that it make a driveway on either side of the rails of such switch twelve feet in width. The petitioner, however, was not required to maintain such driveways after their construction.

It is not suggested in the petition that the switch asked for is to be used for any purpose other than for the petitioner’s private use and convenience. It is not pretended that any one of the public would be entitled to use the same for any purpose whatsoever, or that it would convenience any one other than the petitioner and its allied company, the Power Specialty Company, in the slightest degree.' It is not pretended that any other party, corporation, or person would have the right to use it for any purpose. Concededly-, such switch, •if constructed, will be the private ■ property of the petitioner and will be operated by it solely for its private use and benefit.

The petitioner asks by its petition .that it be permitted to take a portion of the property belonging to the defendant Jerry Wall, which adjoins its plant, but is not included within the boundaries of the highway, in order to connect its plant with such highway and the' switch which it asks to construct thereon. Such property is included in the description Of the route set forth in the petition.

It is now conceded, and was upon the oral argument, that such property cannot be acquired under section 20 of the Railroad Law or, otherwise. The description of a route being thus concededly faulty, this court might properly deny the motion upon that ground. It is not competent for this court to appoint commissioners to pass ' upon the feasibility and propriety of Constructing a switch upon a route not described in the petition, or to substitute a new route not suggested therein.; certainly not except upon motion made for that purpose, even although it. may appear that there is another feasible route by which the petitioner’s plant could be connected with such highway and the-switch which it asks to construct thereon..

But independent of that consideration, >ve think the motion- must be denied for the reason that the petitioner is seeking, to acquire private property for .private use and property _ which has been ' devoted to the public use in which the defendants have a private property right and easement. • It is settled beyond controversy that the' easement of an abutting owner in a public street is private property. (Story v. N. Y. Elevated Railroad Co., 90 N. Y. 122.) In the case of Abendroth v. Manhattam, Railway Co. (122 N. Y. 1) it was held: An owner of. a lot adjoining a city street, although his title extends only to the side of the street and he has no' interest therein save as abutting -owner, has incorporeal private rights therein which are incident , to his property, and which may be so impaired as to entitle him to damages. ■ Such rights are private property within the provision of the State Constitution (Art. 1, §6). * * *”

In this case it appears not only, that the defendants are abutting owners upon the highway in question, but that they own the fee respectively to the center thereof, so that as against each' of the defendants the petitioner is seeking to acquire his private property for its private use and benefit. It would hardly seem, to be necessary to cite authorities in support of the proposition that private property may not be taken for private use. Many such, however, can be found, among others: Taylor v. Porter (4 Hill, 140); Matter of Mayor, etc. (135 N. Y. 253); Waterloo Woolen Mfg. Co. v. Shanahan (128 id. 345); Matter of Split Rock Cable Road Co. (Id. 408).

It is unnecessary to consider in detail the provisions of section 20 of the Railroad Law (Laws of 1890, chap, 565) because, in so far as it assumes to authorize the taking of private property for private use, it is unconstitutional and void.

This application does not fall under the rule that those having control of or authority over public streets or highways may giant certain privileges to abutting owners although the exercise of the privileges so granted may to some extent interfere with the con-. venience of the traveling public.. Such privileges are granted upon the theory that all abutting owners similarly situated may alike enjoy them. We think it has never been held that a stranger can be permitted to invade such street or highway solely for his private purpose. '

In the case of Hatfield v. Straus (189 N. Y. 208) it was held : “The board of estimate and apportionment of the city of Hew York has no authority to grant to the proprietors of a department store a permit to lay down private railroad, tracks in front of their premises and operate express cars thereon for the conveyance of goods to their store from the street railroads.”

The suggestion of counsel for petitioner that it is significant that, although section 20 of the Railroad Law was enacted more than twenty years ago, its constitutionality has never been questioned, is not forceful in support of the granting of the motion, because it is quite possible that this is the first time it has ever been urged before a court that private property can be acquired in opposition to the will of the owner thereof, whether it consists of an easement of the fee of a public highway, for the private use and purpose of a person or corporation seeking to obtain the same" and for a use and purpose . which the public or no one other than the person or corporation attempting to acquire it has any. interest in.

The application should be denied, with ten dollars costs and disbursements, and the petition dismissed.

. All concurred; Williams and Kruse, JJ., in result only.

Application denied and petition dismissed, with ten. dollars costs and disbursements.  