In re Split Rock Cable-Rd. Co.

• Decision Date: 06 October 1891
• Citation: 28 N.E. 506,128 N.Y. 408
• Parties: In re SPLIT ROCK CABLE-ROAD CO.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 408

28 N.E. 506

In re SPLIT ROCK CABLE-ROAD CO.

Court of Appeals of New York.

Oct. 6, 1891.

Appealf from supreme court, general term, fourth department.

Petition of the Split Rock Cable-Road Company for the condemnation of land, of which Charles Hughes and others are the owners, or persons interested. There was an order of the special term granting the petition, which was reversed by the general term, and the petitioner appeals. Affirmed.

Wm. G. Tracy, for appellant.

Thomas Hogan, for respondent.

O'BRIEN, J.

The Split Rock Cable-Road Company, a corporation organized under chapter 462 of the Laws of 1888, entitled ‘An act to authorize the formation of elevated tramway corporations, and to regulate the same,’ applied by petition to the supeme court for authority to take for its corporate use certain lands of which the respondents are the owners. The right to take these lands was contested by the owners on several grounds,-among them, that the use for which they were required by the corporation was not public. The special term granted the application, and directed the appointment of commissioners to appraise the value of the property, and this order has been reversed by the general term. There are some questions of minor importance, such as the omission of the petitioner to file a map, and the present necessity for acquiring the lands for any purpose, that, in our view, need not be considered. The prominent question is whether the application is for the taking of private property for a public use in fact, or for a purpose merely private. The provisions of the statute under which the petitioner is incorporated, so far as they are material to the question, are as follows: ‘Section 1. Any number of persons not less than thirteen may form a company for the purpose of constructing, maintaining, and operating an elevated tramway constructed of poles, piers, wires, rods, ropes, bars, or chains, for the transportation of freight in suspended buckets, cars, or other receptacles, for hire, and for that purpose may make and sign articles of association, in which shall be stated the name of the company, the number of years the same is to continue, the places from and to which the said tramway is to be constructed, maintained, and operated, and the length of said tramway, as near as may be.’ The particular powers which such corporations may possess and exercise are enumerated and specified in the following provisions: ‘Sec 6. Every corporation formed under this act shall have power and authority (1) to cause such examination and surveys for its proposed tramway to be made as may be necessary to the selection of the most advantageous route, and for such purpose, by its officers and servants, to enter upon the lands or waters of any person, but subject to responsibility for all damages which shall be done thereto; (2) to lay out its tramway and to construct the same as hereby provided. Sec. 7. In case any company formed under this act is unable to agree for the purchase, use, or lease of any real estate required for the purposes of its incorporation it shall have the right to acquire title in fee to the same in the manner and by the proceedings provided by law for acquiring title to lands for railroad use by railroad corporations under the provisions of chapter 140 of the Laws of 1850, and the several acts amending the same, supplemental thereto, so far as the same are applicable. Sec. 9. Every corporation formed under this act shall have power and authority to erect and maintain all necessary and convenient buildings, stations, fixtures, and machinery for the accommodation and transaction of its business.’ The articles of association of the petitioner, which are acknowledged June 13, 1888, and filed June 19, 1888, state that the subscribers ‘have associated together as an elevated tramway corporation, to continue in existence for the period of fifty years, for the purpose of constructing, maintaining, and operating an elevated tramway between Split Rock and Onondaga Lake, a distance of about four miles, both of which places are in Onondaga county.’ The capital stock of the petitioner was all paid in, and in June, 1889, it completed its tramway from Split Rock northerly to near the Erie canal, a distance of about three and a half miles, and since then it has been in operation. The tramway consists of two elevated cables held upon supports and parallel to each other, about 10 feet apart, on which run buckets by means of a trolley or pulley,-one line taking the buckets that have been filled, and the...