
    The People of the State of New York ex rel. New York, Ontario and Western Railway Company, Appellant, v. State Board of Tax Commissioners, Respondent.
    Fourth Department,
    March 3, 1915.
    Tax — railroad franchise — tangible property — bridge and subway carrying city streets across railroad tracks.
    In the absence of evidence to the contrary it will be presumed that under section 64 (now section 93) of the Bailroad Law a railroad company is required to maintain and keep in repair a bridge and abutments which are used to carry a city street over its tracks. And, hence, when there is no evidence as to when or by whom such bridge was built or whether orno the abutments rest upon railroad property, it is properly included in the value of the railroad’s tangible property for the purpose of assessing a franchise tax. The burden is upon the railroad company to show affirmatively that it does not own the bridge or have any tangible property therein.
    Where a railroad company has a franchise to maintain its tracks in the public streets of a city all its tangible property in, over or under such street is expressly made taxable by statute, which rule holds where the value of the railroad’s tangible property is subsequently increased by improvements.
    Thus, although a subway carrying a city street under another street on a portion of which a railroad company has a franchise to maintain its tracks, and paid for in part by the State, by the city and by the railroad, was built long after the railroad company received its original franchise in the street, that part of the subway immediately below the railroad tracks and the abutments and girders which support the roadbed, should be treated as tangible property owned by the railroad company for the purpose of assessing a franchise tax, for it is required by statute to maintain and keep the same in repair.
    But such portion of the subway as is not beneath the lands used by the railroad belongs to the city, and should not be considered in assessing the franchise tax.
    
      Held, that the expense of constructing that part of the subway which was immediately under the railroad of the company represented the tangible value of the company’s interest in the subway.
    Appeal by the relator, New York, Ontario and Western Bailway Company, from an order of the Supreme Court, made at the Herkimer Special Term and entered in the office of the clerk of the comity of Oswego on the 26th day of August, 1914, in so far as the same refuses to confirm the report of the referee herein, or modifies said report; also, an appeal from the findings contained therein, and particularly from that part of the said order which determines that the overhead bridges at Albany street and Mexico road and the part of the subway under Schuyler street in the city of Oswego, N. Y., are assessable as tangible property of the relator in connection with its special franchise, and that the value of relator’s special franchise in the city of Oswego, including the value of the tangible property used in connection therewith, is the sum of $44,616.74.
    
      C. L. Andrus, for the appellant.
    
      Edwin J. Mizen, James A. Parsons, Attorney-General, and C. B. McSparren, Deputy Attorney-General, for the respondent.
   Foote, J.:

Eelator was assessed for the taxable value of its special franchise in the city of Oswego for the year 1909 at $73,900 after a hearing upon relator’s objections to the same as being erroneous and excessive. Eelator sued out a writ of certiorari to review the same and the issues raised by respondent’s return to the writ were sent to a referee to hear and determine. Included in said assessment as the value of the tangible property of the relator were two bridges over relator’s railroad at Albany street and Mexico road, by means of which these streets are carried over relator’s railroad; also the cost to relator of a subway constructed in 1908 by order of the Board of Eailroad Commissioners made in 1905 under Schuyler street, along which relator’s railroad runs, whereby East Seventh street, which previously ended with its junction with Schuyler street, was carried under Schuyler street and into the grounds of the United States military reservation known as Fort Ontario, on the opposite side and adjoining Schuyler street. The cost of this subway was upwards of $40,000, including the approaches, and of the part under Schuyler street $19,779.54. Of the total expense of the subway the State paid twenty-five per cent, the city of Oswego twenty-five per cent, relator forty-two and five-tenths per cent, and the New York Central and Hudson Eiver Eailroad Company seven and five-tenths per cent, the latter company having a single track running along Schuyler street parallel to relator’s two tracks. The total cost of the subway to relator for its share was $17,317.01.

The referee found and decided that no part of this subway construction under Schuyler street was a part of relator’s tangible property in Schuyler street, and that said two highway bridges at Albany street and Mexico road were not tangible property of relator in those streets and reduced the assessment accordingly. Eelator moved at Special Term to confirm the referee’s report, where an order was made modifying the referee’s decision by adjudging that the two bridges were assessable as tangible property of relator, as well as that portion of the subway under Schuyler street and within the confines thereof to the extent of the cost to relator of that part of the subway, to wit, $8,406. Otherwise, the report of the referee was confirmed.

The appellant now challenges the correctness of these modifications to the referee’s decision and contends that neither the highway bridges nor any part of the subway are owned by relator and that relator has no such interest therein as is its tangible property in, over or under said streets used in connection with special franchises therein.

As to the highway bridges, it does not appear when they were built or who built them. They have been in use for some twenty years. In the absence of evidence to the contrary, we must assume that under section 64 of the former Eailroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], added by Laws of 1897, chap. 754, as amd. by Laws of 1902, chap. 140, and Laws of 1909, chap. 153), which is now section 93 of the Eailroad Law (Consol. Laws, chap. 49 [Laws of 1910, chap. 481], as amd. by Laws of 1913, chap. 744), relator is required to maintain and keep in repair the framework and abutments of these bridges. If the abutments rest upon relator’s land, then they are part of its real property. If not, relator still has an interest therein arising from its obligation to maintain, repair or replace the bridges and abutments in case of their destruction. The presumption of law is that the assessment was properly made. This presumption must prevail until relator makes it to appear affirmatively that it does not own the bridges or have any tangible property therein. (People ex rel. Jamaica Water Supply Co. v. Tax Comrs., 196 N. Y. 39; People ex rel. Niagara Falls, etc., Co. v. Tax Comrs., 202 id. 426.)

As to the East Seventh Street subway under Schuyler street, relator contends that as this subway was built long after it received its franchise to operate its railroad along Schuyler street, it is not taxable therefor because, in effect, the subway carried East Seventh street across Schuyler street and made a new crossing of relator’s railroad which did not exist before, and that, hence, the case is the same, in principle, as that in People ex rel. N. Y. C. & H. R. R. R. Co. v. Woodbury (203 N. Y. 167), where it is held that when a new street is carried across an existing railroad no special franchise is thereby created which is taxable. It is said in that case: “The object of the Special Franchise Tax Act is to tax railroad corporations for privileges granted them in the streets which they occupy on their lines of railway and if, after they have their rights of way secured over private land, a public highway is laid across the tracks, while there is a crossing, it is not a crossing made by the railroad or through public favor so far as the railroad is concerned.”

We think the principle so enunciated does not apply here. Relator’s railroad rims lengthwise in Schuyler street; hence, it has a special franchise in that street. In connection with such special franchise all its tangible property in, upon, over or under that street is taxable by the express terms of the act. (See Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 2, subd. 3.) If it adds new property to its railroad in, upon, over or under the street, the value of its tangible property is thereby increased. The question, therefore, is: Is this subway construction, or any part of it, tangible property of relator within the intent and meaning of the act ?

It appears that Schuyler street is 100. feet in width. Adjoining Schuyler street on the north is the military reservation owned by the United States government, and opposite East Seventh street and for a considerable distance, east and west, there are no buildings upon the government property. Both relator’s two railroad tracks and the single track of the New York Central and Hudson Elver Eailroad Company lie on the north side of the roadway of Schuyler street immediately adjoining the government grounds, leaving south of all these tracks a considerable part of Schuyler street in width free from tracks used as a public street. While the expense of this subway was paid in part by the State, in part by the city, and in part by the railroads, we think that part of the subway, consisting of its approach in East Seventh street and under that part of Schuyler street used as a street and not occupied by the railroad tracks, belongs to the city of Oswego or the adjoining owners of private property, and that relator has no interest therein, and that it has no obligation to maintain or repair the same, but as to that part of the subway immediately below the tracks of relator’s railroad, we think the abutments and the girders which support relator’s railroad are its property, which, under section 64 of the former Eailroad Law, as re-enacted by section 93 of the Eailroad Law, it is required to maintain and keep in repair, while, by the same section, the city of Oswego is required to maintain and keep in repair and is given jurisdiction over the approaches.

It appears from the evidence and is found by the referee that the expense of constructing that part of the subway which is immediately under the tracks and railroad of relator was $6,151.06. This sum, we think, represents the tangible value of relator’s interest in this subway to be assessed in connection with its special franchise at that point.

The order appealed from should be modified so as to reduce the tangible value of relator’s interest in this subway from the sum of $8,406, stated in the order of the Special Term, to the sum of $6,151.06, and as so modified affirmed, without costs of this appeal to either party.

All concurred.

Order modified so as to reduce the tangible value of the relator’s interest in the subway from the sum of $8,406 to $6,151.06, and as so modified affirmed, without costs of this appeal to either party.  