
    Wager et al. v. Troy Union Railroad Company.
    Reiteration of the decisions m ¡Williams v. New York Central Railroad Company (16 N. Y., 97), Carpenter v. Oswego and Syracuse Railroad Company (24 N. Y., 655), and Mahon v. New York Central Railroad Company (id., 658), that the use of a street for a railroad is a new burden beyond the public easement, which cannot be imposed by legislative authority without compensation to the owner of the fee: that such use, without acquiring the title of the owner of the fee, or his license, is a continuing trespass, and that he may maintain ejectment to recover the land, subject to the public easement as a highway.
    Appeal from the Supreme Court. The complaint was that the defendant had entered upon and unlawfully withheld the possession of a street in the city of Troy which was part of land owned by the plaintiffs, subject only to the public easement; that the defendant had, by artificial embankments, &c., impaired the use of the street and claimed the exclusive / right to use the same or a considerable portion thereof, for a railway. For a further cause of action the complaint alleged that the defendants had dug and excavated the plaintiff’s soil, torn up pavements, made embankments, laid down rails and was committing other acts of trespass by running cars and engines over the premises, to their damage in the depreciation of their buildings and real estate, and in the injury occasioned thereby to their business. It demanded judgment for the delivery of possession of the premises subject to the public easement, and for the damages sustained as well by reason of the withholding the premises as of the several acts of trespass committed by the defendant. On the trial these facts appeared :
    The plaintiffs were the owners in fee of three lots situate on the easterly side of Sixth street, in the city of Troy, known as Nos. 56, 58 and 66; on 56 and 58 were dwelling-houses; on 66 was an iron foundry.
    By an act passed June 20th, 1851 (ch. 255, Laws of 1851), the city of Troy and the several railroad corporations whose railroads then or thereafter should come to the city of Troy, or which had or should have their business terminus in, or run their trains to and from said city, were authorized to subscribe for, and become the owners of stock in a railroad corporation to be organized under the general railroad act "of 1850, for the construction of a railroad with one or more tracks through the whole, or a portion, of the city of Troy. By the 4th section of the act, certain individuals named, were appointed commissioners to obtain subscriptions to the capital stock in' the railroad corporation, and were empowered to locate their railroad by a majority of their number, subject to the approval of a majority of all the members elected to the common council of the city of Troy. The defendant was organized as a railroad corporation under the general railroad act of 1850, in pursuance of the act of the 20th June, 1851. The commissioners named in the act of 1851, located the railroad through certain streets of the city of Troy, among others, through Sixth street. This location was approved by a majority of all the members elected to the common council of the city of Troy. The city of Troy, by its authorities, the mayor, recorder, &c., in a written contract, entered into between the mayor, &c., and the defendant, and other railroad corporations, assented to the construction of the railroad as located by the commissioners, and according to the map and survey thereof (a copy of which survey was annexed to the contract), and upon the grades indicated on the profile of the said railroad, which had been signed by a majority of the directors of the defendant, and filed in the office of the clerk of the county of Rensselaer. But it was expressly stated in the contract, that nothing therein contained was to interfere with the rights or claims of owners of property adjoining said road to damages or otherwise, by reason of any change of grade, or should make the party of the first part (the mayor, recorder, &c.), liable therefor. The common council of the city of Troy, approved of this contract^ and authorized the mayor, &c., to execute it. In constructing the defendant’s railroad through Sixth street, in front of the plaintiff’s premises, the grade of the street was raised on the easterly side nearly a foot, on the westerly side about two feet and a half above the sidewalks, and in the center about a foot. There were four tracks with switches, making in all sixteen rails, laid down nearly opposite to the main entrance to the plaintiff’s foundry building, which, together with the elevation of the grade of the street, created a great obstruction to ordinary travel on the street, and obstructed the access to the plaintiffs’ premises with teams.
    There' was also evidence to show that the grade of the road opposite the plaintiffs’ premises was four inches higher than that indicated on the profile map of the railroad, referred to in the contract between the Mayor, &c., and the defendant, and other railroad companies. There was further evidence tending to show that the plaintiffs’ property had been depreciated in value from five to six thousand dollars, in consequence of the construction and operation of the road. There was no evidence that the plaintiffs consented to the construction of the railroad, or that they had received any compensation for damages, or for the fee or soil of the street, or anv property or interest therein. The western boundary of the dwelling-house lots, by the plaintiffs’ title deeds, is: “ Beginning at a point in the east line of Sixth street, &c., and running thence northerly on Sixth street forty feet,” &c. The western boundary of the foundry property, by the plaintiffs’ title deeds, is: “ Bounded on-the west by Sixth street,” &c. It appeared that Sixth street had been opened and used as a public street since 1826 or 1827.
    At the close of the evidence, Mr. Justice Harris,' before whom the cause was tried, dismissed the complaint, on motion of the defendant, on the ground that the defendant was authorized to construct and operate the railroad, and being so authorized was not liable to the plaintiffs for indirect or resulting damages occasioned by the construction or operation of the road. The plaintiffs excepted to the ruling of the court. The judgment of dismissal was affirmed at general term, and the plaintiffs appealed to this court.
    
      George Van Santvoord, for the appellants.
    
      William A. Beach, for the respondents.
   Smith, J.

It is an established inference of the common law that the proprietors of land adjoining a public highway are the owners of the fee of said highway: that the rights of the public therein and thereto are no higher or other than those of a mere easement, and that the proprietors on each side presumptively own the soil in fee to the center of the highway. There is no distinction in this respect between the street of a city and highways in the country. (Bissell v. N. Y. C. R. R., 23 N. Y., 61.)

The plaintiffs having shown title to the premises described in the complaint, established á prima facie title to the soil of Sixth street, from its east line to the center thereof westwardly, subject to the public easement.

The construction of the defendants’ railroad and the laying of the tracks in Sixth street, so far as the same was laid or constructed east of the center of said street adjoining the plaintiff’s premises was consequently an encroachment upon his freehold, "and a trespass, and every use thereof by the defendants a continuing trespass, unless they have acquired the right to construct their railroad in such place under the authority of the legislature or of the common council of Troy.

The nonsuit- at the circuit and the decision at general term affirming the same, are put upon the'ground that the defendants in constructing their railroad in said street, were not in the commission of any unlawful act, the same being authorized by the acts.of the legislature under which the defendants were incorporated and by the common council of Troy.

Under the two acts of 1850 and 1851, the defendants were doubtless authorized to appropriate for the use of their said railroad such streets or parts of streets in Troy as they should deem necessary for the purpose of said corporation, subject to the approval of a majority of all the members elected to the common council of Troy.

When lands are required for railroad purposes, under the •general act of 1850, provision is made in that act for the appointment of "commissioners of appraisal, to ascertain and appraise the compensation to be made to the owners or persons interested in the real estate proposed to be taken for such purpose, and it is declared that when such lands have been so appraised and compensation made, that all lands so acquired shall be deemed taken for the public use, and all persons who have been made parties to the proceedings shall be divested of all right, estate and interest therein!

It is not pretended that, the defendants have acquired any rights in Sixth street under these provisions of the general railroad act, or that, the plaintiffs’ interest in said street has been divested by any proceedings under said act, or that any appraisal of their damages for the taking and appropriating said street for railroad purposes has been had or any compensation therefor made or paid. The power of the legislature to authorize the taking of any lands, waters, streams, highways or streets, for public purposes, on making due compensation is undoubted; and that such appropriation of land for railroad purposes is a legitimate exercise of the right of eminent domain, has long been settled in this State and is unquestioned. But these defendants claim the right to construct their railroad in Sixth street without any appraisement of damages or making any compensation to the adjoining owners on said street. This claim is based upon the provisions in the act of June 21,1851, aforesaid, authorizing the defendants to construct their railroad with one or more tracks through the whole or a portion of said city of Troy, and upon the provision of the general railroad act of 1850, which provides that any corporation organized under said act “ may construct its roads across, along or upon any stream of water, water-course, street, highway, plank road, turnpike or canal, which the route of its road shall intersect or touch.” (Sub. 5, § 28 of Railroad Act, Laws of 1850, p. 224.)

These provisions of the statute doubtless do confer upon the defendants all the power to construct their railroad in the streets of Troy, which, under the Constitution of the United States, or of this State, the legislature could confer. The dedication of the ground covered by Sixth street to the public, the opening and acceptance of the same by the city authorities, and its occupation and long use as a street gave to the public all the rights which could be ordinarily acquired in a public highway, except under a specific grant of the fee thereof. This right was and is a mere easement, a right of passage for travel as highways are customarily used; and the legislature, as the organ or legislative authority of the public, has undoubted control oxer this easement the same as it has on all other public rights, and it could undoubtedly delegate a part of its power over highways to local officers. The mayor and common council possessed a derivative part of this legislative power, but its authority could not ascend higher than the source. The acts of the legislature and those of the city of Troy are all legitimate acts of the legislative authority, and are valid so far as the power of the legislature could extend. The legislative grant to the defendants of the right to construct their railroad in the streets of Troy is a mere authority, and it must be exercised without violating any private rights, or if any private rights are impaired, the constitutional compensation must be made. The legislative grant is made and is only sustainable upon this ground. It saved the defendants the liability to indictment for a nuisance for laying their rails in the streets of the city, and exempts them from all other liabilities as respects the public. It could go no further. It could not take away any private right's without providing for making a just compensation.

The question remains whether the taking and use of a public street or highway for railroad purposes is a new use of the public easement in the street so as to be within the authority or control of the legislature without respect to any private rights in said street. This question this court has distinctly answered in the negative in several cases. The case of Williams v. New York Central Railroad (16 N. Y., 97), is a leading and controlling one on this subject. In that case there was the same appropriation of a street, under the legislative authority and the corporate authorities of the city of Syracuse as in this. In that case it was distinctly held that to occupy a street with railroad tracks and use it for railroad purposes is to charge it with a new easement not within the purposes, intent and legal effect of its dedication, as a street or highway, to the public. Judge Seldeu says: “ Any one can see that to convert a common highway running over a man’s land into a railroad is to impose an additional burden upon the land and greatly to impair its value.” And he further says that the dedication of land for the use of a highway is not a dedication of it for the use of a railroad company and that the two uses are essentially different. The same view is reiterated in the case of Carpenter v. The Oswego and Syracuse Railroad Co. (24 N. Y., 655), and in Mahon v. New York Gentral Railroad Co. (id., 658.)

It is quite apparent that the use by the public of a highway and the use thereof by a railroad company is essentially different. In the one case every person is at liberty to travel over the highway in any place or part thereof, but he has no exclusive right of occupation of any part thereof except while he is temporarily passing over it. It would be trespass for him to occupy any part of the highway exclusively, for any longer period of time than was necessary for that purpose and the stoppages incident thereto. But a railroad company takes exclusive and permanent possession of a portion of the street or highway. It lays down its rails upon, or imbeds them in the soil, and thus appropriates a portion of the street to its exclusive use, and for its own particular mode of conveyance. In the one case all persons may travel on the street or highway in their own common modes of conveyance. In the other no one can travel on or over the rails laid down except the railroad company and with their cars specially adapted to the tracks. In one case the use is general and open alike to all. In 'the other it is peculiar and exclusive.

It is true that the actual use of the street by the railroad may not be so absolute and constant as to exclude the public also from its use. With a single track, and particularly if the cars used upon it were propelled by horse power, the interruption of the public easement in the street might be very trifling and of no practical consequence to the public at large. But this consideration cannot affect the question of right of property or of the increase of the burden upon the soil. It would present simply a question of1 degree in respect to the enlargement of the easement and would not affect the principle that the use of a street for the purpose- of a railroad imposed upon it is a new burden.

But in this case the increased burden imposed upon the street is very marked and unquestionable, and must be a serious interruption to the public easement and a very great injury to the adjoining owners. The -construction of eight tracks in the street, with sixteen rails, amounts, I should think, nearly to a practical appropriation of the whole street for railroad purposes, and to the virtual exclusion therefrom of the public and all other modes of conveyance. If the title to Sixth street were in the city of Troy, as the fee of streets is in the city of Hew York, the mayor and common council might perhaps have authorized such appropriation of the street without compensation to the adjoining owners; but in the absence of any such proof, and assuming the title to be, as is the proof, in the adjoining proprietors, the laying down of such tracks in Sixth street was a palpable invasion of the plaintiffs’ rights. The nonsuit in this case was therefore erroneously granted. It was error in the circuit judge to hold, as he did, that the defendants in building their road in Sixth street were in the lawful exercise of their legal rights and powers, and were not liable to the plaintiffs for damages to their land and property adjacent to the street.

In the first count of the plaintiffs’ complaint they set out a complete cause of action in ejectment, and claimed to be entitled to recover that portion of the street eastwardly of the center thereof subject to the public easement. The defendants have put down their rails and tracks on the plaintiffs’ premises, and claim to exercise and are in the constant exercise of acts of ownership over a portion thereof exclusively, and claim a right to place and retain their tracks in said street in that portion thereof of which the fee is vested in the plaintiffs. According to the decision of this court in Carpenter v. Oswego and Syracuse Railroad Company, the plaintiffs were entitled to maintain ejectment to recover such part of the said street, to remove the rails of the defendants’ road therefrom.

The second count is trespass. Under this count, as every entry of the defendant upon the said street in the exercise of their claim to an exclusive use thereof was a trespass and an unauthorized intrusion upon the plaintiffs’ premises, the plaintiffs were clearly entitled to recover some damages. (3 Hill, 567.) What the extent or measure of such damages would be, and upon what principle they should be assessed, are questions which are not now properly before the court. It is sufficient for us to decide that the plaintiffs were improperly nonsuited, and that they were entitled to recover under either count of the complaint. The judgment should, therefore, be reversed, and a new trial ordered, costs to abide the event.

Denio, Ch. J., Davies,.Selden and Allen, Js., concurred.

Sutherland, J., (dissenting.)

I am inclined to think the complaint in this action must be regarded as having been intended to contain two distinct causes of action: The first, ejectment to recover the possession of the half of the street adjoining the plaintiffs’ buildings subject to the public easement ; and the second, to recover certain alleged special consequential damages to the plaintiffs, as abutting lot owners, resulting from the construction and operation of the railroad. These two causes of action, probably, could not properly be united in the same complaint (Smith v. Hallach, 8 How. Pr., 73; Hulce v. Thompson, 9 id., 113 ; Budd v. Bingham, 18 Barb., 494); but as there was no demurrer, and it does not appear that the plaintiffs were called upon at the circuit to elect between- the two, I suppose if, upon the facts of the case, the plaintiffs were entitled to recover on either cause of action, his complaint should not have been dismissed.

It will be noted, that the plaintiffs in their complaint do not complain of, or ask to recover for, any direct damage to them as the owners of the fee or soil of the street, to the middle of it, except from the alleged -withholding the possession.

It is doubtful whether the boundary of the dwelling house lots carries the plaintiffs’ title to the centre of the street, but I assume that it does, and that they own the naked fee of that portion of the street, which they seek to recover the possession of, subject to the public easement.

It is perfectly settled, if the defendant was authorized to construct and operate the road through Sixth street without acquiring the fee of the street, or making any compensation to the abutting lot owners, as owners of the fee of the street, that the defendant is not liable to the plaintiffs for the indirect or consequential damages claimed, unless the acts of the legislature, or the contract with the city authorities in pursuance of and under which the road was constructed, required compensation to be made for such indirect or consequential damages. (Lansing v. Smith, 4 Wend., 10; Gould v. Hudson River R. R. Co., 2 Seld., 522; Case of Phila, and Trenton R. R. Co., 6 Wharton, 25; State of Alabama v. Mayor, &c., of Mobile, 5 Porter, 279.) There is nothing in the case of Williams v. New Yorh Central Railroad Company (16 N. Y., 97), which interferes with this proposition.

If the acts of the legislature, or the contracts with the city authorities, had enjoined'or made it a condition that the fee of the streets should be acquired, or the abutting lot owners compensated for such fee, before the road was constructed, the defendant would have been authorized to construct and operate the road without any compensation to the plaintiffs or other abutting lot owners for indirect or consequential damages, . and without being liable for such damages, upon fulfilling the condition, that is, upon acquiring the fee of the street, or making compensation to the abutting lot owners for such fee simply. (Radcliff’s Ex’rs v. The Mayor, &c., of Brooklyn, 4 Comst., 135; Canandaigua and Niagara Falls R. R. Co. v. Payne, 16 Barb., 273, Hatch v. Vermont Central R. R. Co., 25 Verm., 49; Clark v. Saybrook, 21 Conn., 213.)

The act of June 20, 1851, passed in contemplation of the organization of the defendant as a corporation under the general railroad act of 1850, appointed commissioners to locate the road, subject to the approval of a majority of all the members elected to the common council of Troy; and the road was located by the commissioners and their location thus approved; but there is nothing in this act requiring the fee of the streets to be acquired, or compensation to be made for the fee, or for such use of the streets, or for either direct or consequential damages, to the abutting lot owners.

By the 5th Subdivision of section 28 of the general railroad act (Laws of 1850, p. 224), under which the defendant was organized, corporations organized under it, were authorized to construct their road across, along, or upon, any stream of water, water-course, street, highway, &c.; but the company shall restore the stream or water-course, street, highway, &c., to its former state, or to such state as -not unnecessarily to have impaired its usefulness.

The same subdivision of section 28 declares that nothing in the act shall be construed “ to authorize the construction of any railroad not already located, in, upon, or across any streets in a city, without the assent of the corporation of such city.” This act does not expressly provide or require, that any compensation shall be made to any one for the use of a street or highway, or for any indirect or consequential damages; but it does provide, that any company formed under the act, should have the right to acquire title to any real estate, required for the purposes of its incorporation, in the manner prescribed in the act.

It cannot be doubted, I think, that the defendant was . authorized to construct and operate the road as it was constructed, and operated without acquiring the fee of the street, or making any compensation for such use of the streets, or for any indirect or consequential damages, if the legislature had the constitutional power to authorize such use of the'streets with the consent of the city corporation, without making or providing for such compensation.

The condition on which the city authorities gave their assent to the construction of the road, that it was not “ to interfere with the rights or claims of owners of property adjoining said road, to damages or otherwise, by reason of a change of grade,” &c., does not, I think, affect the question of power, or the rights of the plaintiffs. If the legislature, with the assent of the city authorities, could authorize the construction and operation of the road, without the consent of the plaintiffs, and without compensation to them, this condition could not subj'ect the defendant to liability for damages or otherwise.

. In the case of The People, &c., The Trustees of the Sailors' Snug Harbor, and others, v. The Mayor, &c., of the City of New York, John Kerr, and others, recently decided by the general term of the first judicial district, I had occasion to examine the question of the power of the legislature to authorize the construction and operation of a horse railway, through certain streets of the city of Hew York, conforming to the grade of streets, without the consent of the abutting lot owners, and without compensation to them for such use of the street, or for consequential damages, assuming the fee of the streets to be in such abutting lot owners; and after quite an elaborate examination of the question, I came to the conclusion that the , legislature had such power, on the ground that such use of the streets was within the purpose for which they had been opened or dedicated to public use as highways, and that such new mode of using the streets for public travel or carrying passengers, was a use of the streets as highways, consistent with the public use for which they had been appropriated as highways; and, therefore, such new mode of using them could not be said to deprive such abutting lot owners of the fee of the streets, or of any private property, or possessory right of the street. For the reasons and authorities which led me to such conclusion, I refer to my opinion in that case.

There was a time, no doubt, in England, in the ancient days of the'common law, when no wagon or other wheel vehicles were in use. When they came in use, could the lord of the manor, or other owner of the fee of a public highway, have complained that wheel vehicles cut up or rutted the road, and that such use of the road was not contemplated when the highway was opened or dedicated to public use, was a highway ? . •

By the general railroad act, under which the defendant was organized, a corporation organized under it has power to take and convey persons and property on its road by the power or force of steam, or animals, or by any mechanical means, and to receive compensation therefor. (Subd. 7 of § 28.) Such power must be deemed granted for public use, and such operation of the road in carrying persons and property on it, to be for public úse. (Gen. R. R. Act, § 18; Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wend., 10.)

In this case the railroad, I assume, was intended to be, and was operated by steam. I cannot see how that affects the question of power, although it is plain that, in a city, a road operated by steam would probably occasion much more serious consequential damage to the adjoining lot owners or occupiers, than a horse railroad.

¡Nor can I see how the raising the grade of the street affects the question of power in this case. I cannot doubt that the legislature had the power, with the consent of the city corporation, to raise the grade of the street twenty-five or thirty inches without compensation to the adjoining lot owners. It is to be pre- • sumed, I think, that the authorities of all cities, by their charters, have power, from time to time, to alter the grade of the street without making such compensation. If the street was raised four inches higher than it ought to have been, of which there appears to be some question, .1 think that was a matter between the city corporation and the defendant. It is plain, that the only damages which the plaintiffs have suffered by the construction and operation of the road, are indirect or consequential damages: that they really have not suffered any direct damage simply as owners of the fee of the street, or of a portion of the street; that the injury to them would have been precisely the same, if their title had not extended to the centre of the street, or the fee of the street had been in the city corporation. The case shows that the consequential damages to the plaintiffs have been serious; but the cases before cited, and many others which might be cited, have established the doctrine that the constitutional prohibition of taking private property for public use without compensation, does not extend to or protect a citizen from such indirect consequential damages.

My conclusion is, that the defendant was authorized to construct and operate the road. If so, it follows that the complaint was rightly dismissed.

In coming to this conclusion, I have assumed, that the plaintiffs owned the soil to the centre of the street, and could maintain ejectment for that portion of the street, which they seek to recover the possession of, subject to the public easement of a highway, if the construction of the road had been unauthorized. But I do not think ejectment would lie, if the road was constructed and operated without authority. It is not necessary to question that trespass would. It does not follow that ejectment would lie because trespass would. In constructing the railroad, the defendant did not claim any title in or to the streets. The occupation of the streets by the defendants in constructing and operating the road, if it can be called an occupation, was not. exclusive, and did not even prima facia show, that the defendant claimed any title. Upon the theory, that the plaintiffs owned the soil to the middle of the street, the defendant only claimed a right of way or easement over their laud. The defendant did not occupy or claim title, so as to be properly made a defendant in an action of ejectment. (Child v. Chapel, 5 Seld., 246; Redfield v. Utica and Syracuse R. R. Co., 25 Barb., 54.)

The action to have possession delivered, subject to the public easement of a highway, is inconsistent with the form of the judgment, and of the writ of possession prescribed by the Revised Statutes (2 R. S., p. 808, §§ 33, 34); and with the sections declaring the effect of the judgment. (2 R. S., p. 309, §§ 36, 37.) To allow the action would be useless; for I cannot see, if a recovery is had, that any other result can follow from the judgment than the abatement of a nuisance, and in such a case as this, the half of a nuisance, which could be abated without the action.

There are other difficulties and inconsistencies in allowing ejectment to be maintained in such case as this, for which see Judge Allen’s opinion in Redfield v. Utica and Syracuse Railroad Company, before cited.

It is certainly doubtful, where there is an exclusive occupation of a portion of a public square, or highway, as by erecting a building or other structure upon it whether ejectment will lie by the owner of the soil, to recover the. possession subject to the public easement of a highway. On the authority of Goodlittle v. Alker (1 Burr., 143), and on the ground that trespass would lie, it was held in Pomeroy v. Mills (3 Verm., 279), and in Robbins v. The Mayor of Pittsburgh (3 Rand., 568), that ejectment would lie, for such an exclusive occupation; but it was held otherwise in The City of Cincinnati v. Lessee of White (6 Pet., 431), which decision was followed by the Supreme Court of this State, in the case of Hunter v. Lessees of Sandy Hill (6 Hill, 407), Judge Beardsley delivering the opinion. See also opinion of Ingersoll, J., in Peck v. Smith (1 Conn., 103); and of Willard, J., in Adams v. Saratoga and Washington Railroad Co. (11 Barb., 451, 453, 455.)

My conclusion is, that the judgment of the Supreme Court should be affirmed, with costs.

Wright, J., also dissented; Gould, J., took no part in the decision.

Judgment reversed, and new trial ordered.  