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In re SPLIT ROCK CABLE-ROAD CO.

(128 New York 408.)

Eminent Domain-Private Railroad-Public Use. Where an elevated tramway corporation organized under N. Y. Laws 1888, chap. 462, instituted condemnation proceedings it appeared that the southerly terminus of petitioner's line was accessible only by a private road, and that its railroad had been used solely for the transportation of stone for a private corporation in which the incorporators of petitioner were financially interested, though it was claimed that the company was ready to carry freight offered to it by any person, providing such freight is suitable to the road, to the extent of its surplus capacity after supplying the wants of the private corporation. Held, that the evidence did not show a sufficient public use to warrant the taking of the property under the power of eminent domain.

APPEAL from Supreme Court, General Term, Fourth Department.

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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 Statement of elevated tramway corporations, and to regulate the same," applied by petition to the supreme 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 acquir ing the lands for any purpose, that, in our view, need not be considered. The prominent question is whether the applica. tion 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: "Sectioni. 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: "Section 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. Section 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. Section 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 other line taking back the buckets which are empty. The location of the southern terminus of this tramway is upon the land of the petitioner, just north of the lands now de

sired to be taken, and is in a gorge about 90 feet lower than the Hughes land.

There is nothing in the statute under which this corporation was formed, nor in the objects of the corporation as expressed in the articles of association, sufficient to warrant the conclusion that the business which it

Sufficient

public use. is organized to carry on is public in the sense that enables it to take private property under the power of eminent domain. The special term, however, found as matter of fact that the lands required by the corporation, and described in the petition, were for a public use; and it remains to inquire whether the general term was right in holding, as it did, that this finding was without evidence to support it. The facts and circumstances from which the nature of the use to which the corporation proposes to apply the property sought to be condemned are practically undisputed. The company has filed no map indicating an intention in any way to include the land in question within the boundaries of its property,a fact which, standing alone, would form a very serious obstacle to the success of the application. In re Rochester Electric R. Co., 123 N. Y. 351, 46 Am. & Eng. R. Cas. 157. The map of its route originally filed, taken in connection with the evidence, shows that the southern terminus of the tramway is upon the land of the petitioner, and near the establishment of the Solvay Process Company, a corporation engaged in a large and growing business, consisting, as is to be inferred from the evidence, in the production of soda ash. This company owns 100 acres of land, upon which are stone quarries, and this land entirely surrounds the terminus of the tramway as well as the lands in question. The northern terminus of the tramway, as now built, is also on the lands of the Solvay Process Company, at the lime-kiln of their works, about 500 feet from the Erie canal. The incorporators of the petitioner were practically all stockholders and persons interested in the Solvay Company, and it is quite apparent that the petitioner was organized and is operated as an instrumentality to facilitate the business operations of the Solvay Company. The only business that it has thus far carried on was for that company. As now constructed, the limit of its carrying capacity cannot exceed 750 tons per day. It has thus far been operated practically night and day, and has succeeded in carrying for the Solvay Company 350 to 400 tons of stone a day. There is no public highway leading to the northern terminus of the road by means of which the public can obtain access for its use.

That the road has thus far been entirely for the benefit of the Solvay Company, and that its business is to be entirely

subordinate in the future to the plans and interests of the same company, is entirely clear. From the evidence of the president of the petitioner and other witnesses in support of the application, the most that is claimed is that the surplus of the capacity of the road, after supplying the wants of the Solvay Company, is to be devoted to public use in carrying, in buckets, freight offered to it by any person, providing such freight is suitable to the buckets and the road. Whether there is to be any surplus capacity, as the Solvay Company continues to expand its business, and, if so, how much, are questions which are left entirely uncertain. From the testimony it appears that the lands are required in order to increase the terminal facilities of the tramway company by building other tramways on the surface to facilitate the carrying of stone to the cable station, by erecting buildings for the storage of freight and for repair shops, and to furnish means of access. The company has other land that could be used for these purposes, but it is not so convenient. The evidence does not suggest any business that the petitioner is to carry on in the future, any more than in the past, beyond the carrying of stone for the Solvay Company, except possibly the carrying of coal. In regard to that, it is best to describe the project in the language of the president himself, who said: "We intend to make a contract with some private individual to furnish him with coal, so that he can transport it or sell it to people in that vicinity; to establish a coal yard, the same as any where, not that the Solvay Process Company or the cable company will establish a coal yard. Some individual will have to run it, with whom we will make a contract to carry coal, and we propose to limit the contract to one individual for the present."

Looking at the statute under which the petitioner was incorporated, the objects of its incorporation, as described in the certificate, and the evidence in regard to the manner in which it has been and is to be operated, and the purposes of its corporate existence, we think it is entirely clear that the use to which the petitioner is to devote the lands of the respondents is not public, but private. The principles governing applications by corporations of this character to take private property for their corporate purposes have been very fully discussed and stated in a recent case in this court. In re Niagara Falls, & W. R. Co., 108 N. Y. 375, 33 Am. & Eng. R. Cas. 99. Under the doctrine of this and other cases a possible limited use by a few-and not then as a right, but by way of permission or favor-is not sufficient to authorize the taking of private property against the will of the owner. In re Deansville Cemetery Ass'n, 66 N. Y. 569; In re Eureka

Basin W. & M. Co., 96 N. Y. 42; In re Rochester, H. & L. R. Co., 110 N. Y. 119; In re New York, L. & W. R. Co., 99 N. Y. 12, 23 Am. & Eng. R. Cas. 43.

The order appealed from is right, and should be affirmed, with costs.

All concur, except FINCH, J., absent.

Eminent Domain-Public Use-Railroad for Private Advantage.-See Weidenfeld v. Sugar Run R. Co. and note, ante pp. 505, 512; Colorado E. R. Co. v. Union P. R. Co. (C. C.), and note, 44 Am. & Eng. R. Cas. 25.

KANSAS & ARKANSAS VALLEY R. Co.

ย.

PAYNE et al.

(U. S. Circuit Court of Appeals, Eighth Circuit Jan. 25, 1892, 49 Fed. Rep. 114.)

Use of Railroad Right of Way and Bridge-Foot Travel-Interference with Ferry Franchise.—The complainants, under license granted them by the Cherokee nation, occupied a tract of land in the Indian territory fronting on the Arkansas river opposite the city of Fort Smith, and were engaged. in operating a ferry at that point. The Kansas & A. V. R. Co. in 1888, under Act Cong. June 1st, 1886, which authorized it to build a railroad through the Indian territory, and to condemn lands to be used for railway, telegraph and telephone purposes only, condemned a right of way through said tract of land to the river. On March 15th, 1890, by act of Cong., the railway company was authorized to build a bridge across the Arkansas river to be used as a railway, passenger and wagon bridge. Said act recited that the building of the railway as authorized by the act of June 1st, 1886, involved the necessity of constructing the bridge. Held, that the railway company, by the act of March 15th, 1890, was impliedly authorized by congress to use its right of way as a roadway for ordinary travel, so far as might be found necessary to give vehicles and foot passengers access to the bridge, and that the grant of the right to build a bridge for the purposes of general travel did not infringe the ferry franchise, and that the complainants were not entitled to compensation for the loss of ferry patronage, since the building of the bridge had not cut off access to the ferry landing or rendered it any less feasible than before, to operate the ferry. Held, further, that a court of equity would not enjoin the railway company from permitting foot passengers and vehicles to travel over its right of way to such extent as might be necessary to reach the bridge, since the damages, if any, incident to such use might be recovered in an action at law, inasmuch as the railway company did not propose to intrude upon the possession of any lands occupied by complainants.

APPEAL from the Circuit Court of the United States for the Western District of Arkansas.

Action to restrain the use of right of way.

H. S. Priest and Alex. G. Cochran, for appellant.
John H. Rogers, for appellees.

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