
    In the Matter of the Proposed Extension of Folts Street, in the Village of Herkimer, N. Y. The Village or Herkimer, Respondent; The New York Central and Hudson River Railroad Company and The Mohawk and Malone Railroad Company, Appellants.
    
      An incorporated village may open a street across the “yard" of a railroad—opening a street across such lands is not a “talcing” of'the title — appointment of commissioners of appraisal—jurisdiction of the County Court over a non-resident rail- • road corporation.
    
    A village, incorporated under chapter 291 of the Laws of 1870, may extend a street at grade over lands of a railroad company used by it as a yard, where the street will not interfere with any structure of the company, by proceeding either under the provisions of chapter 62 of the Laws of 1858, which require thirty days’ notice to the corporation, or under the provisions of chapter 291 of the Laws of 1870, as contained in subdivision 25 of section 3 of title 3, and-in title -7, section 1, where power is given to a village to lay out a street and “for that purpose” to “ take and appropriate any land in said village;” and, in considering the validity of such-a street opening, both statutes may be construed together.
    In such a ease the rule that property which'has been taken for one public use cannot be devoted to another without a special act of the Legislature, cannot be invoked by the railroad company, as the village does not seek to depi'ive it of the title to, or the beneficial use of, its lands, hut merely to secure a passage for the public across them. ■
    The railroad company is not aggrieved by the fact that the village assumes in its proceedings that the railroad company will suffer damages, and seeks the appointment of commissioners to assess them.
    It is not an objection to the jurisdiction of the County Court in the matter, that the principal place of business of the railroad company is not within the county, under the provisions of section 14 of article 6 of the State Constitution, providing that the jurisdiction of the County Court “ shall not he so extended as to authorize an action therein * * * in which any person not a resident of the county is a defendant,” since the proceeding in such case is not an action but a special proceeding. :
    
      Appeal by the Hew York Central and Hudson River Railroad Company and another, from an order of the County Court of Herkimer county, entered in the office of the clerk of the county of Herkimer on the 1st day of March, 1897, appointing commissioners to assess the damages caused by the extension of Folts street, .and taking lands therefor in the village of Herkimer, as provided by chapter 291 of the Laws of 1870, as amended.
    In February, 1897, the village of Herkimer, being an incorporated village (under chap. 291, Laws of 1870), through its board of trustees, presented a petition to the County Court of Herkimer county setting forth, among other things, “that on the fifth day of January, ■1897, the petition of at least ten freeholders residing in said village of Herkimer * * * was presented to this board of trustees and filed in the office of the clerk of the village of Herkimer, said petition praying for the opening, laying out and extension of Folts street in said village easterly and southerly from its present easterly terminus to Albany street, and also describing the land to be taken, and stating the owners thereof; that on the presentation of such petition said board met and examined the same and decided the improvement should be made by resolution entered in the minutes of the board; that said board of trustees thereupon put up in five public places in said village a correct description of the lands to be taken to make such improvement, and a notice that the trustees, at the village board rooms on Main street in the village of Herkimer, H. Y., on the second day of February, 1897, at eight o’clock p. m., would meet and hear any objections that might be made to the taking of such land or making such improvement; that said notices were duly posted in five public places in said village at least five days before the second day of February, 1897, and copies of said notice were also served personally on (certain residents of the village), "x" * * and also at least twenty days before said second day of February, 1897, copies of said notice were served by mail (on the appellants, naming them) both of said companies being named in said petition as the owners of the lands sought to be taken or interested therein.”
    The petition further showed that, on the second of February, the attorney for the appellants appeared before the trustees, pursuant to the. notice, and procured an adjournment of the proceedings until the tenth of -that month, when he again appeared and objected to the opening of the street on the grounds- that the lands of the companies that would be crossed thereby were necessarily used by them for a railroad yard, and already devoted to a public use and could not be used for another such use without legislative sanction; and he filed a couple of affidavits to sustain such objections. The board of trustees after such hearing approved of the petition, and declared, by resolution entered in their minutes, .their intention to make the said improvement and proceeded to obtain possession of the lands described in the manner provided by chapter 291 of the Laws of 1870, as amended; and the petition prayed for the appointment of commissioners.
    This petition was duly presented to the county clerk of Herkimer county on the 1st day of March, 1897, and the attorney for the appellants appeared, opposed the application, filed an affidavit showing that the principal place of business of the Mohawk and Malone Railroad Company was Hew York city, and of the other appellant the city and county of Albany, and filed a statement of objections reiterating those taken before the trustees, and in addition that chapter 243 of the Laws of 1896 was unconstitutional in providing that the County Court could appoint commissioners to appraise damages of the property of a non-resident, and presented the affidavits read before the trustees.
    These affidavits set. fortlr that the proposed street in the village of Herkimer would intersect at right angles the tracks of the Mohawk and Malone Railroad Company, which was a single-track railroad passing through the village and had been leased to the Hew York Central and Hudson River Railroad Company; that at the place of intersection there were four side tracks running along with the main track; that there was an engine house 300 feet south of the said crossing, coal sheds for the coaling of locomotives situate 150 to 200 feet south of the crossing, and that 600 feet south of the crossing there were sand houses where sand was obtained for the use of the locomotives. The affidavit set forth the claim that the place of crossing was within the yard limits of the company for slowing trains, which limits were about 5,000 feet north of the crossing, and that the yard of said railroad extended one-lialf mile north of the crossing and about 1,200 feet south of it. It is evident from the papers in the case that the crossing would not interfere with any building or structure of • the company, and would be at grade with its tracks.
    
      Charles E. .Snyder, for the appellants.
    
      Robert E. Steele, for the respondent.
   Ward, J.:

The determination of the respondent that a street should he opened in the village through the lands of the appellants was conclusive as to the necessity and the propriety of such street. (The People ex rel. The City of Ithaca v. The D., L. & W. R. R. Co., 11 App. Div. 280, and cases cited.)

Tinder the laws of this State the respondent had the choice of two proceedings in the premises, one being authorized by chapter 62 of the Laws of 1853, which declares it to be lawful “ for the authorities of any city, village or town in this State who are by law empowered to lay out streets and highways, to lay out any street or highway across the track of any railroad now laid or which may hereafter be laid without compensation to the corporation owning such railroad; but no such street or . highway shall he actually opened for use until thirty days after notice of such laying out has been served personally upon the president, vice-president, treasurer or a director of such corporation.”

And the other proceeding could be taken under chapter 291 of the Laws of 1870, being the act for the incorporation of villages and the various amendments thereto. By subdivision 25 of section 3 of title 3 of that act the trustees of the village are authorized “ to-lay out and open new roads, alleys and streets,”

And it is further provided in section 1 of title 7 of that act that, a village incorporated thereunder should constitute a separate highway district, and shall have power to discontinue, lay out, open* widen, alter, change the grade or otherwise improve roads, avenues, streets, public parks or squares, lanes, crosswalks and sidewalks, and for that purpose may take and appropriate any lanid in said village / but no road * * * shall be opened or altered unless all claims for damages on account of such opening or altering shall be released without remuneration, except on the written petition of at least ten freeholders residing in said village, which petition shall specify the. improvement to be made, describe the land to be taken, state the owner or owners thereof when known, and shall be filed in the ■office of the clerk of the village.”

Provision is further made for the assembling of the trustees and the proceedings stated in the petition herein.

Section 2 of title 7 of the act we are considering was amended • hy chapter 243 of the 'Laws of 1896, taking effect on the fifteenth ef April of that year, and provided for the appointment of three •commissioners by the County Court to assess the damages to the landowners and persons interested in the route of the' proposed highway. 'The commissioners were required to . determine and ■award the owner of such lands such damages as he would sustain by the proposed alteration or improvement after making allowances for •any benefits that he might derive therefrom. This decision was required to be filed with the village clerk, and, within twenty days •after the filing, provisions were made for confirming or vacating the decision of the commissioners by the court," which decision was to be final unless' proceedings were duly taken for that purpose.

The determination of the village authorities to open the street ■and'take the land necessary .for that purpose was necessary as a preliminary step in proceeding to cross the railroad lands under either ■of the statutes cited.

Under the statute of 1853 it is only necessary, after such deter-' ruination has been made, that the thirty days’ notice required by that statute should be given to open the highway for use. The further duty of opening the same across the track devolved upon the railroad company.

Under the law providing for the incorporation of villages, for the purpose of ascertaining, the damages only, the proceedings must be had for the appointment of commissioners in the County Court, but the two statutes may be construed together in arriving at the legislative intent as to the right of towns and other municipalities to •open streets and highways that- shall cross railroad tracks, and they ■seem to indicate a well-defined policy in favor of the right to make ■such crossing under proper conditions.

In construing the act of 1853, it was held in The Albany Northern R. R. Co. v. Brownell (24 N. Y. 345) that a highway could not be laid out over grounds acquired by a railroad corporation for-the site of an engine house and necessary for its use at a station.

And in Boston & Albany R. R. Co. v. The Village of Greenbush (52 N. Y. 510) it was held that the act of 1853 did not. authorize the laying out of streets and highways across the tracks of' any railroad which were used for storing cars or exclusively for-mating up trains.

In Pres., etc., Delaware & Hudson Canal Co. v. The Village of Whitehall (90 N. Y. 21), under the statute of 1853, it was held that the word track ” signifies the entire roadbed, and not .merely the iron or railway, but roadbed, including turnouts and switches or other contrivances for passing engines or cars from one line of rails to-another or for public traffic purposes. In that case the court found that the railroad premises sought to be crossed were “ five rods in width, is covered by four railroad tracks, two of which are the main tracks for the railroad for the passing'of cars, and two of which are-extra tracks extending several hundred feet, both to the north and south of the proposed street crossing, and are used in' connection with others for switching cars, making up trains, and for allowing cars to stand upon them until they can be put into trains about to> depart,” which are characterized more like a yard for the transfer-of cars than depot grounds. The court here sustained the contention of the village as against that of the railroad company, and Judge Danforth concludes the opinion with a statement which seems to refute the contention of the appellants here, that the railroads in the case at bar should be protected from this street crossing because it was a railroad yard,” and is as follows: “ To hold otherwise would enable a railroad company by a judicious adjustment of switches, turnouts, turntables, water tanks and other accessories, of its roadway or business so to control its whole way as to exclude- ' a. new street or highway crossing at any point along its line.”

The learned counsel for the appellants earnestly contends that the railroad lands sought to be crossed, having been devoted to one public use, cannot be taken for another without special authority from, the Legislature. (Citing In re The Gity of Buffalo, 72 Hun, 422, and cases there cited.) This rule only applies where it is sought to. deprive the person or corporation to which the first public use ia granted, of the substantial use of the property. An easement maybe acquired in invitum in such property when it may be enjoyed without detriment to the public or without interfering with the use to which the lands are devoted. (In the Matter of the Rochester Water Commissioners, 66 N. Y. 413.)

The'respondent in the case' at bar did not seek to deprive the appellants of the title to their property or of its beneficial use, but to secure a passage for the public as a right of way over the lands. Again, it will be observed that the Village Corporation Act authorizes the village to take any lands within its borders. Is this not a legislative declaration'of the right to use the' railroad lands for streets as well as any other lands ?

The respondent has assumed in its proceeding for the appointment of commissioners that the appellants would sustain damages by crossing their tracks, which damages should be assessed and paid before the street could be opened. Of this the appellants complain; not, that they have not sustained damages, but that the County Court had. no power to appoint commissioners to assess them. Whether the appellants have sustained damages is a question to be determined by the commissioners; they may hold-that under the act of 1853 no damages should be awarded, leaving the respondent to proceed under that act and give the thirty days’ notice required by it. In any event, we do not perceive how the appellants are aggrieved or injured by the proceeding. If entitled to damages, ■such damages will be awarded' and the appellants will have the benefit thereof; if no damages are awarded, the appellants will be in no worse situation than if the proceedings were entirely under the act of 1853.

The appellants make the further point that the County Court had no jurisdiction to appoint commissioners to assess the damages, if any, for crossing the appellants’ lands with this street, because the appellants’ principal place of business was outside of the county, of Herkimer, and they cite the closing paragraph of section 14 of the 6th article of the State Constitution, which is as follows: “ The Legislature may hereafter enlarge- or restrict the jurisdiction of the County Court, provided, however, that their jurisdiction shall not be so extended as to authorize an action therein for the recovery of money only, in which the sum demanded exceeds two thousand dollars, or in which any person not a resident of the county is a defendant.”

This grant of power to the Legislature as to the County Courts is not restricted except in an action for the recovery of money in which a person not a resident of the county is a defendant. The proceeding at bar is not an action. It is not an action for the recovery of money. It is a special proceeding appertaining to the lands of the appellants which are located in the county of Herkimer, and we entertain no doubt but that the County Court had authority to appoint the commissioners. (See limen v. Smith, 148 N. T. 415.) Chapter 243 of the Laws of 1896 was passed after the constitutional amendment above quoted, authorizing the Legislature to enlarge the jurisdiction of the County Court.

These views lead to the conclusion that the order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with costs.  