Thompson v. Orange & Rockland Elec. Co.

• Decision Date: 21 October 1930
• Citation: 173 N.E. 224,254 N.Y. 366
• Court: New York Court of Appeals Court of Appeals
• Parties: THOMPSON v. ORANGE & ROCKLAND ELECTRIC CO.

254 N.Y. 366

173 N.E. 224

THOMPSON

v.ORANGE & ROCKLAND ELECTRIC CO.

Court of Appeals of New York.

Oct. 21, 1930.

Action by Alex Thompson against the Orange & Rockland Electric Company, and a jury trial is waived. From a judgment of the Appellate Division, Second Department, affirming a judgment of the Trial Term, in so far as appealed from, in favor of plaintiff (228 App. Div. 672,239 N. Y. S. 758) defendant appeals by permission of the Court of Appeals.

Judgments reversed, and complaint dismissed.Appeal from Supreme Court, Appellate Division, Second department.

Abram F. Servin, of Middletown, and Elwood C. Smith, of Newburgh, for appellant.

Elbert N. Oakes, of Middletown, for respondent.

POUND, J.

In the month of July, 1927, the county of Orange instituted condemnation proceedings under sections 148 and 150 of the Highway Law (Consol. Laws, c. 25) to take from the plaintiff a strip of land, thirty-five feet wide on the westerly end, about fifty feet wide near the middle, and running to a point on the easterly end, in the village of Harriman, containing .464 of an acre of land, for the purpose of changing the line of an existing highway in the course of construction of a county highway known as Turner's-Monroe County highway, No. 46. The description of the land is by metes and bounds. The proceeding was concluded by a final judgment awarding plaintiff $4,500 for the land thus taken. The question is whether the county acquired the fee of such strip of land for highway purposes or an easement merely. If it acquired the fee, the defendant, a public service corporation, furnishing electricity, not only for lighting the streets of the village of Harriman but also for light and power to private consumers, may erect its poles and string its wires in the highway under proper public permits without making additional compensation to plaintiff. If it acquired an easement merely, the highway is subject to street uses only, and no new burden may be imposed on plaintiff's land without further compensation.

In this state a distinction is made between the burdens that may be imposed upon a road, urban or rural, when an easement over land is taken for a right of way for highway purposes and when the fee is acquired. When an easement is taken, all uses of the land directly or indirectly conducive to the enjoyment of the public easement which the necessity and convenience of the public may require, either then or in the future, are not deemed to be paid for, even though the landowners get practically the full value of their land. Only such uses as appertain directly or indirectly to the right of passage, and tend in some way to preserve or make more easy the exercise of such right, may be imposed upon the easement. For other uses, public and municipal in their character, the landowner is entitled to additional compensation. Thus the lighting of a highway has been held to be one of the burdens upon the fee which must be borne as an incident to the public right of traveling over the way. Palmer v. Larchmont Electric Co., 158 N. Y. 231, 52 N. E. 1092,43 L. R. A. 672. So as to sewers and water mains when connected with the use of the streets. But telegraph and telephone wires in no way improvethe streets or aid the public in passing over them, and are held to be an additional burden upon the fee. Osborne v. Auburn Telephone Co., 189 N. Y. 393, 82 N. E. 428. The same rule would apply to the distribution of electricity to private owners for light and power purposes. The use of the streets is not improved by the poles and wires placed therein.

If, however, the fee has been transferred to the municipality, such municipality may grant the use of the highway for any public or municipal purposes not inconsistent with, nor prejudicial to, its use for street purposes. Osborne v. Auburn Telephone Co., supra. The distribution of electricity for light and power purposes is a public and municipal use, but not a street use, under these decisions.

No distinction can now be drawn between city streets and country highways in this regard. Farmers generally avail themselves of electric current whenever it is available. The electric light has taken the place of the tallow dip or the kerosene lamp. The electric motor has now been installed in lieu of man, woman, or child power on so many farms as to be no longer a novelty. The distinction rests on the interest, if any, which remains in the adjacent landowner after the taking of a right of way for highway purposes.

Article 6 of the Highway Law (section 120 et seq.), entitled ‘State and County Highways,’ has its origin in the development of a modern scheme of new or improved highways of sufficient public importance to constitute a part of a properly developed system of improved market roads either at state or county expense. It is broad and comprehensive. Such highways are no longer a matter of local consequence. Town highways are provided for by a separate article (article 8 [section 190 et seq.]).

By section 148 of the Highway Law the board of supervisors ‘shall acquire land for the requisite right of way’ for a state or...