
    The New York Central and Hudson River Railroad Company, Respondent, v. Samuel Untermyer and Minnie Card Untermyer, His Wife, Appellants.
    Second Department,
    June, 4. 1909.
    Eminent domain — railroad — filing map — branch track — charter of Hew York Central and Hudson River Railroad Company construed — damages — condemnation of easement — use of electricity.
    Section 6 of the Eailroad Law, requiring a railroad to file a map and profile of the route adopted, before it is entitled to institute condemnation proceedings,does not apply where a railroad corporation, charged with the duty of handling the traffic of a great system, seeks to condemn lands whereon to construct a new section of main line track for the purpose of safely and conveniently discharging that duty.
    A track designated as an “additional main track” and running thirty-five miles from the city of New York to Croton, to be used to accommodate traffic going in and out of the Grand Central Station, isa “branch” track for depot accommodations within the meaning and spirit of the act consolidating the New York Central Railroad Company and the Hudson River Railroad Company 1 into a single corporation, which, while it does not release the new corporation from any of the restrictions, disabilities or duties of the two merged corporations, provides that the new corporation shall have power to construct “-such branch or branches for depot and station accommodations as may be required for the business of said railroad.”
    The New York Central and Hudson River Railroad Company should be allowed to construct such a track, although it has exhausted its power under the old Hudson River Railroad Company’s charter, by which it is bound and which gave it authority to construct only “a'single, double or treble railroad.”
    Where commissioners appointed in condemnation proceedings are not shown to have adopted a wrong theory and where they have in connection with the hearings visited and viewed the property, their determinations will not be disturbed on appeal.
    Where a railroad seeks to acquire merely an easement in certain lands under water to the extent of filling in the same so as to obtain lateral support for its tracks, the owner should not be allowed the “fair market value” of such lands and it is not error for the commissioners in condemnation proceedings to adopt one standard of compensation for the land taken in fee, and another for the land as to which only an easement is taken.
    That it is proposed to operate trains on the new track by electricity which would increase the danger of communication between defendants’ land and the water front, does not greatly increase the damages suffered by them where the plaintiff is already maintaining a treble track railroad at this point which under its charter it might operate by electricity.
    Appeal by the defendants, Samuel [Jntermyer and another, from a final order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 18th day of April, 1908, confirming the report of commissioners of appraisal in a condemnation proceeding, and from the judgment entered thereon, and also from a judgment, entered in said clerk’s office on the 26th day of October, 1907, upon the ' decision of the court rendered after a trial at the Westchester Special Term appointing commissioners of appraisal.
    
      Louis Marshall, for the appellants.
    
      John F. Brennan, for the respondent.
   Woodward, J. :

■ The plaintiff in its petition for the condemnation of lands of the defendants near the city of Yonkers avers that the “ public use for which said, property is required is for an additional main track-of the plaintiff’s railroad, for its accommodation and. to afford. safer and more expeditious and convenient handling of trains and traffic, which have increased in number and volume, so that the handling thereof on the existing tracks of the plaintiff is difficult and dangerous. It is intended by the plaintiff herein to construct an additional main track from New York city as far north as Croton, amito operate its trains between its Grand -Central Station in New York city and Croton, on the Hudson division, by'electrical power, and the lands and the rights a,nd easements in lands ■ hereinbefore described and sought to be acquired in this proceeding are required for the purpose of running and operating the railroad of-said -plaintiff-in a safe and proper manner.” The petition seeks to condemn a parcel of 10,867 square feet of land, partially under the waters of the Hudson river, together with the.“right and easement to fill in, from time to time, with earth and other solid material, a strip of land under -water, of the uniform width of twelve, and one-half * * * feet, westerly of the premises abové described, the westerly boundary "line thereof being parallel to ■ the westerly-boundary line of the premises above described, such filling at the easterly boundary line of said strip of land to be level at all' points with the roadbed of the party of the second part, adjacent thereto, and- gradually to slope to the westerly boundary line of said strip of land under- water; the northerly and southerly boundary, lines of the said strip, of land being the northerly and southerly boundary lines, respectively, extended westerly of the premises -first abo ve described. Such filling is necessary for the support of the roadbed arid railroad track to be constructed by plaintiff upon the. premises first above described.”

'-. The. defendants- appeal from the, interlocutory order and judgment condemning the lands -and appointing commissioners of ■ appraisal, and from the order confirming -the report of such commissioners, arid it is urged that the interlocutory judgment was unwarranted because of the failure of . the plaintiff to comply with the preliminary steps, required bylaw to be taken'in. order to entitle it to institute these proceedings. It Is the contention- of the defendants that section 6 of the Railroad Law (Laws of 1890, chap. 565, a,s amd. by Laws of 1892, chap. 676) requires the filing of a map and profile of the route adopted before it is entitled to institute condemnation proceedings. A reading of the section referred to, it would seem to us, is sufficient to indicate that it was not designed to govern in a case of this kind where a railroad corporation, charged with the duty of handling the traffic of a great system, is forced to construct'a new section of main line track for the purpose of safely and conveniently discharging this duty, and this seems to have been the conclusion reached by this court in New York Central & Hudson Rimer R. R. Co. v. Ernst (114 App. Div. 874).

It is also urged by the defendants that the plaintiff, having been created under the provisions of chapter 917 of the Laws of 1869, under the terms of which the Hew York Central Eailroad Company and the Hudson Eiver Eailroad Company were consolidated into a single body corporate, is bound by the limitations of the Hudson Eiver Eailroad Company created under a special act (Laws of 1846, chap. 216) and which provided, among other things, that it should have power to construct a single, double or treble railroad or way between the cities of Hew York and Albany,” various sections of the act reciting the same language. The contention'is that the act under which the plaintiff was created having provided in sections 3 and 4 that “ upon the making and perfecting such agreement and act-of consolidation as hereinbefore provided * * * the said corporations * .* * shall be deemed and taken to be one corporation by the name provided in said agreement and act, but such act of consolidation shall not release such new corporation from any of the restrictions, disabilities or duties of the several corporations,” and that “ all and singular the rights, privileges, exemptions and franchises of each of said corporations * * * shall be taken and deemed to be transferred to and vested in such new corporation,” and the plaintiff having already constructed and operated a treble railroad its powers under the charter of the Hudson Eiver Eailroad Company have been exhausted. Assuming that the plaintiff is restricted by the act in question, and that it has exhausted the■ right “to construct a single, double or treble railroad or way between the cities of Hew York and Albany,” the powers granted by the statute did not end there. The act expressly provides (Laws of 1846, chap. 216, § 1) that in addition to the general power above stated the corporatiop shall have power to “ construct such branch or branches for depot and station accommodations as may be' required for the business of said railroad,” and the petition in the present proceeding states that “ The public use for which said property is required is for an additional main track of the plaintiff’s railroad, for its accommodation and to afford safer an'd more expeditious and convenient'handling of - trains and traffic, which have increased-in number and volume, so that the handling thereof on, the existing'tfacks of the plaintiff is difficult and dangerous,” and that the lands required are for the purpose of running and operating the railroad of said plaintiff in a safe and proper manner.” The- proposition is.-to construct this track from the Grand Central Station to Croton, á.distance of about, thirty-five miles, and while the petition does not Call this-a branch, but- refers to it as “additional main track,” this language has a meaning in railroad engineering somewhat different from the popular 'understanding, sidings, switches,. etc., being constructed generally of lighter, and often of fails- which- have served a time on main tracks and have then been utilized for secondary purposes. The petition clearly indicates that this new main track is for the purpose Of -taking care of the traffic going in and out of the Grand Central Station, and it comes within the spirit of the additional power to construct such branch or branches, for depot and station accommodations, as may be required for the business of said railroad.” - It is not a power to construct branch lines leading off into various, localities, but to-accommodate the depot and station conditions of the railroad, and this clearly contemplates such tracks as shall be found-necessary in the practical operations of a treble railroad.- An additional track to care for the local business of the Grand Central Station, running.out thirty-five miles, is not an abuse of the power conferred; it is such á branch as the statute fairly'authorizes. It is probably true, that a lateral or branch railroad usually contemplates one running from some point on the main line, intended'as a connecting line or feeder, to quote the. American and English. Encyclopaedia of Law (Vol. 18 [2d ed.], p. 560), but in the present case the statute itself defines the branch or" branches to be constructed, and. these are “ for depot and station accómmodations, as may be required for the business of said railroad,” and clearly contemplated tracks which should serve to take care of the business of the railroad within a reasonable distance of any station, and this is what appears to be contemplated in the present proceeding. It is in harmony with the provisions of chapter 727 of the Laws of 1905 (amdg. Railroad Law, § 7), which specially provides for taking lands under the conditions here under consideration.

It is urged, however, that the commissioners erred, even assuming them to have authority to act, in adopting two standards of valuation, one. for 'the land taken in fee and another for that as to which only an easement was required. The commissioners awarded thirty cents per square foot for the lands taken in fee and twelve cents per square foot for the easement. The contention is that the defendants are entitled to the “fair market value of the lands ” taken, and that.this light applies not only to the land taken in fee, but to that as to which the easement only is sought. It is true that the plaintiff is seeking permanent rights as to both properties, but it is not true that the rights sought to be acquired are the same. The lands as to which the easement is required are under water; the plaintiff asks for merely the right to fill in this water front in such a way as to bring that portion of it along its tracks to the general level of such tracks, and then to slope down to the water for the" purpose of affording lateral support to the lands which it seeks to take in fee. The railroad does not ask to use the land for any other purpose than support; the owners can build upon the same, or make any use of it which does not interfere with the lateral support of the railroad tracks, and such a taking is very different from a taking for railroad purposes generally. It is a railroad purpose, but it is a limited railroad purpose, leaving the most of the rights of the owners as free from interference as though the taking was confined to the strip of seven .and one-half feet in width, which is taken in fee. To say that there is no difference between these cases is to ignore the practical and every-day knowledge of affairs, and to permit mere assertion to take the place of reason. The cases of City of Syracuse v. Stacey (86 Hun, 441); Roby v., N. Y. C. & H. R. R. R. Co. (142 N. Y. 176); Miner v. N. Y. C. & H. R. R. R. Co. (123 id. 242) and Hudson c& Manhattan R. R. Co. v. Wendel (193 id. 178, 179) do not state any doctrine of this kind ; they merely hold the general rules so well understood in condemnation proceedings, that the statutes must be strictly complied with,, and that just compensation shall be, made, and the rule is well established that where the comiyiissioners are not shown to have adopted a' wrong theory, and where they have, in connection with the hearings, visited the property and viewed the same, their determinations are not to be disturbed by the court on appeal. There is. no doubt whatever that the defendants are entitled to have full compensation for the land actually taken, to the extent that it is taken, and that they are entitled to those. consequential damages which result from the taking of the property out of the estate owned by them, but the record discloses that the commissioners have made awards for these elements of value; that they have viewed the premises, as conceded by appellants’ counsel at page 42 of his brief, and have taken evidence upon all the points offered for consideration. Under what rule of law, then, are we to hold that the defendants have not been awarded that just compensation which the Constitution and the law provides shall be made ? i

It is suggested that the plaintiff, by using an electrical equipment, is greatly increasing the danger of crossing the tracks which it is proposed to construct, and that this constitutes a practical cutting off from the river front of all of the premises of the defendants not taken. It. should be remembered, however, that the plaintiff is now maintaining a treble-track railroad, cutting the defendants off from the river front; that the river front, between the railroad and the river, is largely under water, and that the plaintiff has a right under its charter (Laws of 1846, chap. 216, § 1) to “transport, take or carry any property and persons upon the same by the power.and force of steam, of animals, or of any mechanical or other power, or of any combination of -them,” so- that it might, if it chose, equip its • present tracks with electricity, and this right was acquired with its right of way through the defendants’ premises. Having this right as to the tracks now in use, it must he clear that the damages could not be greatly increased by the additional track proposed to be constructed, and the witnesses testifying to values laid great stress upon the fact that the proposed electrification of this branch line increased the danger and operated to cut off the ■defendants from the river front. The witnesses called by the defendants to testify as to values varied in their estimates from forty-five to seventy-five cents per square foot for the property-taken in fee, while the plaintiff’s witnesses placed the value as low as fifteen cents per square foot, and the commissioners viewing the premises placed the figure at thirty cents per square foot, and like-variations occurred in the matter of the easement, and the consequential damages, and these the commissioners have fixed. - Me errors are urged in regard to the evidence submitted; no exceptions are brought forward, and the only ground for reversal, aside-from the legal questions already considered, is the alleged inadequacy of the awards. But no rule is suggested by which the determination of the commissioners who viewed the premises can' be overturned, and while we might think that the awards were not as-large as might properly have been awarded under the special circumstances, we find no ground for this court to interfere.

The order and judgment appealed from should he affirmed, with, costs. * .

Hibsohbeeg, P. J., Jenks, Eioh and Milleb, JJ., concurred.

Final order and judgment affirmed, with costs.  