
    Edwin Beardsley et al., Resp’ts, v. The Lehigh Valley Railway Co., App’lt.
    
      (Supreme Court, General Term,, Fifth Deportment,
    
    
      Filed October 21, 1892.)
    
    Railroad—Farm crossings.
    Plaintiff’s farm is cut in two parts by defendant’s road. On the north side is a spring, while on the south side, which is used for pasturing cattle and sheep, there is no water. The road runs through a cut, except at a point where there is a depression, which has been customarily used as a passageway for teams and to water the cattle. This depression is to be filled and the road run about twelve feet above the surface. Defendant offered grade crossings at two points, but either of them would require plaintiffs^ to overcome a steep grade in order to use them. Held, that under the circumstances the railroad company should be required to furnish an undergrade crossing at the point of the depression.
    Appeal from a judgment in favor of the plaintiffs, entered on the findings and decision of the court, at the Ontario special term.
    The following opinion was delivered by Mr. Justice Adams, who tried the case :
    Adams, J.—The evidence in this case establishes with reasonable certainty that the plaintiffs are the owners of a farm in the town of Phelps, Ontario county, containing about one hundred acres of land; that the defendant is a railroad corporation organized under chapter 140 of the Laws of 1850, and that by condemnation proceedings it has acquired title, for the use of the railroad, to a strip of land about 2,300 feet in length, running through the plaintiffs’ farm m an easterly and westerly direction, dividing the farm into twomearly equal parts ; that such strip is about ninety-nine feet in width at the east end, and continues through the greater portion of the farm at that width; but, as it approaches the west line, the width increases to nearly one hundred and filiv feet; that the entire strip contains about six acres of laud; aim the compensation awarded the plaintiffs therefor, and for the damage to the remaining . premises, in such condemnation proceedings, was the sum of $3,590 ; that the plaintiffs’ barns and other farm buildings are on the north side of the line of the railroad, and there is also on the same side an inexhaustable spring of water; that the lands upon -the south side are in a state of cultivation, and are often used for pasturing large numbers of sheep and cattle, after the crops are removed; but in the latter part of the season there is no supply of water upon these lands, and the sheep and cattle there pastured are watered at the spring upon the north side.
    That for a distance of about 1,800 feet the defendant’s railroad,, when completed, will be in a cut or excavation of from two to thirteen feet below the surface, which for most of the way will be impassable for teams and cattle, by reason of the depth ; that at a point a few hundred feet east of the west line of the farm there is a natural depression or hollow, that is crossed by the railroad; and the plaintiffs have been accustomed to use "this depression as an easy and direct passage-way for teams in going to and from the north and south parts oí the farm, in their farming operations, and also for the use of their cattle, pastured upon the south side, in going to and from the spring upon the north side; that the defendant’s road is being constructed across this depression at a grade of about twelve feet above the surface of the ground; and the defendant intends to fill in such depression to that depth in order io carry its tracks over the same, and that when this is accomplished, there will be an impassable barrier to the passage of teams or cattle through this depression.
    In the construction of its road over the plaintiffs’ farm upon the proposed route, the defendant has offered to provide two crossings at grade for the use of the plaintiffs, one of them being about three hundred feet west of the depression and the other about two hundred feet east; or in lieu of either one of these, one at the extreme eastern end of the farm; but either of the proposed crossings in the vicinity of the depression will involve the necessity of overcoming a considerable grade in the use of the same; and there is some doubt whether they could be used, when ■constructed, without great inconvenience to the plaintiffs.
    Before this action was commenced, the plaintiffs requested of the defendant that they be allowed an under-grade crossing through the depression, which request was refused ; the principal reason assigned for such refusal being that there was not sufficient room therefor; and thereupon the defendant proceeded to fill in such depression, but had not finished the same when this action was brought, restraining it from so doing.
    Upon these facts it must be assumed, I think, that the depression referred to has afforded to the plaintiffs the natural and most convenient means of passing to and from the north and south portions of their farm; and that it has been generally, though not always, used for that purpose. It may likewise be assumed that when the defendant’s road is constructed across such depression there will be ample room for an undergrade crossing which cau be easily provided, although, as is testified to by the defendant’s engineer, this will involve an additional cost of about $2,600. The question, therefore, which fairly presents itself to the court is, shall the defendant be required to incur this expense in order to provide the plaintiffs with a convenient means of crossing its tracks ? That this court has the power to compel a railroad corporation to construct such farm crossings as it deems proper and necessary in a given case has been frequently held, and I do not understand that the proposition is now questioned by the defendant. Jones v. Seligman, 16 Hun, 230; aff’d, 81 N. Y., 190; Wademan v. A. & S. R. R. Co., 51 id., 568; Post v. W. S. & B. R. Co., 123 id., 580, 591; 34 St. Rep., 484.
    On the other hand, it is equally well settled that under the provisions of the act of 1850, requiring corporations organized under that act to erect and maintain suitable farm crossings for the use of the proprietors of lands adjoining the railroad, it is the right of the corporation in the first instance to locate the crossings. Wademan v. A. & S. R. R. Co., supra. But, in the exercise of this right, it is nevertheless the duty of the corporation to consult the convenience of both parties ; and it will not be permitted to locate such a crossing as will subject the proprietor to needless and unreasonable injury or inconvenience.
    In reaching a conclusion upon the question which presents itself for consideration, it will be necessary, therefore, to determine whether or not the defendant has made right use of its discretionary powers, and this, of course, depends entirely upon the circumstances peculiar to the case in hand. Ordinarily, grade crossings, are all that can be reasonably required of a railroad corporation; for farm, purposes, and, unless there is something to take this case-out of the ordinary rule, they are all that ought to be required of the defendant.
    What, then, are the extraordinary features of the- case under consideration? Not the fact that the defendant’s railroad cuts the plaintiffs’ farm in twain, for it is the doing of this very thing which the statute contemplates, in requiring that suitable crossings shall be constructed, which requirement is, as has been said, ordinarily fulfilled by providing crossings at grade.
    Nor do I think that the fact that an undergrade crossing would prove more convenient to the plaintiffs in their farming operations, or in watering their stock, would of itself furnish a sufficient reason for departing from the rule generally adopted in these cases ; but such a reason is furnished, if at all, by the combination of these facts with the further fact'that a grade crossing at either of the two places near the depression selected and proposed by the defendant can not be used without compelling plaintiffs to overcome a steep grade, which would necessarily be attended not only with great inconvenience, but likewise with greatly increased labor to themselves and their teams; and that it would also involve the necessity of either drawing small loads or incurring the risk of tipping over, to say nothing of the danger to be apprehended from passing trains.
    None of these objections operate against the undergrade crossing. As has already been shown, this is the natural and customary route taken by the plaintiffs; its use is attended by none of the dangers or disadvantages above mentioned, and it is likewise much more convenient and accessible; but over and above all these considerations, it would seem as though it were the one means of communication between the two portions of the plaintiffs’ farm which would suggest itself to any person or tribunal which was endeavoring to consult the convenience and interest of both these parties; for here is a depression to be crossed by a track twelve feet above the surface of the ground, and this elevation the defendant designs filling in so as to make a solid embankment ; but, if, instead of doing this, an aperture should be left sufficient in size to permit teams and wagons to pass through, which could easily be accomplished .without very great additional expense, how incomparably better it would be for all concerned. To the plaintiffs it would prove convenient and easy as a driveway, and it is equally clear that to the defendant it would in the end be much less expensive than a crossing at grade, where the danger to be apprehended from collissions with cattle and teams is certainly much greater than that which counsel imagines would attend the passage of cars over a bridge fourteen feet in length.
    It is a fact which, I believe appears in this case, but if it does not the court will take judicial notice of it, that the defendant in constructing its line of road through this state has adopted an overhead or underground grade crossing as the best means of getting over every public highway, where such means was found practicable.
    In adopting this course, which was purely voluntary, it is to be commended; and all that the plaintiffs seek by this action is to require that the same policy be pursued towards them as individuals, which the defendant, by its own acts, concedes is proper towards the public at large; and while it is not designed by this decision to establish a precedent for undergrade farm crossings as a rule, it does seem as though, for the reasons here given, it would be the only suitable crossing in this particular case.
    In reaching this conclusion the court has not been unmindful of the contention made by the defendant’s counsel that the inconveniences and disadvantages of a grade crossing were considered in the condemnation proceedings, and that they constituted an important element of the damages awarded the plaintiffs in that proceeding.
    This contention would, at first glance, seem to possess some weight, for it certainly does appear that several of the witnesses sworn for the landowners did, to some extent at least, base their estimate of damage upon the fact that the south part of the farm, was to be cut off from the spring upon the north part; but a careful analysis of the whole testimony will show that the witnesses who appeared to take this fact into consideration placed the damages at a sum lower than did others who did not mention this as an element of damages; while the average estimate made by all the witnesses on both sides was nearly a thousand dollars in excess ■of the award.
    It cannot be assumed that the award was made in contemplation of the inconvenience or damage to be apprehended from one or more crossings, Smith v. N. Y. & O. M. R. R. Co., 63 N.Y., 58, and in the case of Jones v. Seligman, heretofore cited, it was said by Miller, J.: “We think such an item is not' a proper subject of consideration in estimating damages for land taken for railroad purposes, and that they have once been made cannot affect the right of the owner to additional ones, where these are insufficient.” It follows, therefore, that this contention of defendant’s counsel is not sustained by either the facts or the law of the ■case.
    I am consequently of the opinion that the plaintiffs are entitled to the relief sought in this action, with costs.
    
      A. P. Rose, for app’lt; J. C. Smith, for resp’t.
   Per Curiam.

The judge who tried this case had, by consent ■of the parties, the advantage of a personal view and inspection of the premises; it is impossible, therefore, to characterize any of his findings of fact as unwarranted by the evidence. His opinion, given above, seems to us to justify the 'conclusions of law drawn from those findings.

The only exception taken on the trial, which is argued here, relates to the admission in evidence of the opinions of witnesses in regard to the damage to the farm which would result from the want of an underground crossing proposed. The evidence was, no doubt, offered for the purpose of a comparison between ther loss to be sustained on the one hand, if the crossing were not constructed, and the expense to be incurred on the other hand, in its construction, as bearing upon the question of the form of the relief to be granted. But there were no findings or request to find on that subject; so that the evidence, if not strictly admissible, was not to the prejudice of the defendant

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., Macomber and Lewis, JJ., concur.  