Peck v. Schenectady Ry. Co.

• Citation: 63 N.E. 357,170 N.Y. 298
• Parties: PECK et al v. SCHENECTADY RY. CO.
• Decision Date: 01 April 1902
• Court: New York Court of Appeals

170 N.Y. 298

63 N.E. 357

PECK et al

v.SCHENECTADY RY. CO.

Court of Appeals of New York.

April 1, 1902.

Appeal from supreme court, appellate division, Third department.

Action by Katherine K. Peck and others against the Schenectady Railway Company. Certain street railroad companies intervened. From a judgment of the appellate division (73 N. Y. Supp. 794) affirming a judgment for plaintiffs, defendant appeals. Affirmed.

Rarker, C. J., and Werner, J., dissenting.Marcus T. Hun, James A. Van Voast, Learned Hand, and James O. Carr, for appellant.

William F. Sheehan, Charles A. Collin, and John L. Wells, for interveners.

Edward Winslow Paige, for respondents.

MARTIN, J.

The purpose of this action was to enjoin the defendant from building an electric railroad upon Washington avenue, in the city of Schenectady, N. Y., in front of the plaintiffs' premises, and upon land of which they were the owners, subject to a public easement for street purposes. That the plaintiffs were the owners in fee of the portion of Washington avenue described in the complaint, and that the defendant, without the consent, and obviously against the protest, of the plaintiffs, threatened and intended to construct and operate an electric railroad upon tracks laid upon the surface of that street, and to supply power therefor by the erection of poles and wires to conduct the electricity necessary for the operation of its road from its power house to and along such street, was, in effect, found by the trial judge, and unanimously affirmed by the appellate division. Therefore, in determining this appeal, those facts must be regarded as conclusively established.

The primary and the most important question involved upon this appeal is whether the use of a city street for the purposes of a street surface railroad operated by electric power imposes an added burden upon the property rights of the owners of the fee, subject to the public easement for street purposes. If this were an open question in this state, much could be said to sustain the contention of the appellant that the acquisition of the use, from the owner, of the land for a public street, includes the right to apply it to all the beneficial public uses for which it may be adapted, not only at the time of its acquisition, but such as may arise in future. It is strenuously claimed that an electric surface street railroad in a city, as constructed and operated at the present time, in its use by, and by reason of its necessity to, the people of the municipality, constitutes an essential feature not only of public use, but of street use, and that such means of transportation have largely superseded the former use of streets, and are now the methods by which a great portion of the people are transported, and, hence, as the street was originally established for the accommodation of the traveling public, the change in methods of transportation does not constitute a new servitude, but only a new and necessary method of accomplishing the purposes for which the street was originally intended, and does not entitle the owners of the fee to additional compensation. This contention is not without force, and there are not a few authorities in other jurisdictions which sustain it. In this state, however, the clear weight of authority is adverse to that contention. Craig v. Railroad Co., 39 N. Y. 404, is an important and leading case upon the subject. The plaintiff in that action was the owner of a lot on East avenue, in the city of Rochester, extending to the center of the street. The defendant asserted the right to construct a horse railroad therein without obtaining the plaintiff's consent, or instituting proceedings to acquire the right to construct it across his premises. The trial court granted a perpetual injunction restraining the railroad company from building its road over the portion of the street of which the plaintiff owned the fee. The defendant appealed from the decision of the trial court to the general term, where the judgment was affirmed, and then appealed to the court of appeals, where the decisions below were also sustained. There, as here, it was claimed that the defendant possessed the right to construct its railroad through the streets of a city, by virtue of the consent of the common council, without making compensation for damages to the owners of lots along the street over which the railroad passed. It was there urged that the building of such a road was not an infringement upon the rights, or any injury to the interests, of the owner in fee of the land in the street, as it was only a mode of exercising the public right of passage with which he had parted, and not such an additional or further appropriation as entitled him to pecuniary remuneration. This court decided adversely to that claim, and held that establishing and running a horse railroad in a public street of a city was an imposition of an additional burden upon the land of an adjoining proprietor covered by such street, and that the latter could maintain a suit to perpetually enjoin the railroad company from laying down its track and from running its cars over the street. The same doctrine as to running steam cars upon a street or highway had been previously held in several cases (Trustees of Presbyterian Soc. in Waterloo v. Auburn & R. R. Co., 3 Hill, 567;Williams v. Railroad Co., 16 N. Y. 97, 69 Am. Dec. 651;Davis v. Mayor, etc., 14 N. Y. 506, 67 Am. Dec. 186;Mahon v. Railroad Co., 24 N. Y. 658;Carpenter v. Railroad Co., 24 N. Y. 655;Wager v. Railroad Co., 25 N. Y. 526),-a doctrine which has since been so firmly established that it is not even controverted by the defendant (Henderson v. Railroad Co., 78 N. Y. 423;Uline v. Railroad Co., 101 N. Y. 98, 107,4 N. E. 536, 54 Am. Rep. 661; McGean v. Railroad Co., 133 N. Y. 9, 15,30 N. E. 647;Coatsworth v. Railroad Co., 156 N. Y. 451, 457,51 N. E. 301).

In the Craig Case the appellant insisted that there was a distinction between a railroad operated in the streets of a populous city by steam and one operated by horse power, and that the rule laid down in the former cases was inapplicable to the latter class of roads. This court, after examining the question, while conceding that there was a difference between a steam road and a horse railway, in the manner in which the road was constructed and the speed with which the cars were propelled, said, ‘But there is precisely the same exclusive appropriation of the track for the purposes intended in each case, to the absolute exclusion of all who may interfere with its mode of operation,’ and distinctly held that the building and operation of a horse railroad in the public streets of a city imposed an additional burden upon the land of an adjoining proprietor covered by a street, and that such a proprietor could maintain a suit to perpetually enjoin a horse railroad company from laying down its track it the street, and from running its cars over it. While the appellant contends that the Craig Case does not decide that the construction of a street surface railroad operated by horse power entitles the owner of the fee of the street to compensation or to the relief awarded in the case at bar, we think otherwise. Since the decision in the Craig Case, it has been regarded as an authorityholding that doctrine, and has been followed with great unanimity by our courts. In Gaslight Co. v. Calkins, 62 N. Y. 386, 388, the question of the right of an owner of the fee of land in streets was again quite fully discussed, and it was there said: ‘The introduction of railroads in this state presented the question whether a railroad corporation could use a public highway for the purpose of constructing and running its road, and it was held that it imposed an additional burden upon the soil of the highway, besides what was included in the public easement; that the legislature had not the power to make such imposition, within the meaning of the constitutional provision which forbids the taking of property of the owner of the fee without compensation; and that the company can derive no title by any act of the legislature, or of any municipal authority, without the consent of the owner of the fee, or without the appraisal and payment of damages in the mode prescribed by law. Fletcher v. Railroad Co., 25 Wend. 463; Trustees of Presbyterian Soc. in Waterloo v. Auburn & R. R. Co., 3 Hill, 567;Davis v. Mayor, etc., 14 N. Y. 506, 67 Am. Dec. 186;Williams v. Railroad Co., 16 N. Y. 97, 69 Am. Dec. 651;Wager v. Railroad Co., 25 N. Y. 526. These cases settle the law, beyond peradventure, as to the right of railroad corporations to appropriate public highways to their benefit without compensation. At a later day an attempted distinction was sought to be made in favor of horse railroads in cities, and the question as to the right of these corporations to use the streets of cities for their roads and cars was presented in Craig v. Railroad Co., 39 N. Y. 404; and it was there decided, after full consideration by the court of appeals, that the running and establishing of such a road in the public streets of a city was an imposition of an additional burden on the land of the adjoining proprietor, for which compensation must be made.’ In Fobes v. Railroad Co., 121 N. Y. 505, 515,24 N. E. 921,8 L. R. A. 453, this general question was discussed by Judge Peckham, who said that, under the decisions of the courts of this state, ‘to construct even a horse railroad in a city street is to place a new and additional burden upon the land, the right to do which does not exist by reason of the general right of passage through the street; but if the adjoining owner of land is not the owner of the fee in the street, and the railroad company has obtained the proper authority, he has no right to compensation for such added burden, nor to complain of such use so long as it is not exclusive or excessive. The same reasoning applies, as we have seen, in the case of a...