#### The People of the State of New York ex rel. Elizabeth S. Potter and Others, Relators, *v.*The Board of Railroad Commissioners of the State of New York and Others, Respondents.

Third Department,

January 8, 1908.

Railroad Law—facts not showing public necessity for steam railroad — inability to pay expenses — eminent domain — certiorari by property owner,

A certificate of public convenience and necessity should not be granted for a proposed steam railroad, twelve miles in. length, to he built as an independent road to furnish railroad facilities to a township of 1,800 inhabitants, including a village of 300, where the passenger traffic between said village and the other terminus is carried by a stage coach, making a daily trip, and it appears that it will he cheaper and nearer for at least"half of the people of said township to take their produce to existing railroads where they will secure better freight rates; that it will‘cost to obtain rights of way and to build and equip the railroad an amount largely in excess of its capital stock, and that its probable earnings will not pay running expenses, and it must inevitably be bankrupt from the beginning. • . ■

Private property may only he condemned for public use, and an owner whose property is to he taken by such proposed railroad may review by certiorari the order of the Railroad Commission permitting its construction.-

Certiorari issued out of the Suprezne Court and attested on the 3d day of June, 1907, directed to the Board of Railroad Ooramis*48sioncrs of the-State of New York and George W. Dunn and others,, as Railroad Commissioners, of the State of New York, etc., commanding them to certify and return ,to the office of the clerk of the county of Albany all and singular their proceedings had in .relation to the application of the Cooperstown and Northern Railway Company for a certificate under section 59 of the Railroad Law (Laws of 18.90, chap. 565, added by Laws of 1892, chap. Gf-6, and amd. by Laws of 1895,. chap. 545).

*Arnold do Gooke \_Iynn J. Arnold*of counsel],, for the, relators.

*Tilley Blakely,*for the respondent Cooperstown And Northern Railway Company. . •

Kellogg, J.:

The proposed road is to run from the village of Cooperstown to the village of Springfield Center, upon the westerly .side of. Otsego lake. It is to be - a standard gauge steam railway, about twelve • miles in length, and is to be built as an independent road. The village of" Cooperstown lias about 2,500 inhabitants; the village of Springfield Center about 300 inhabitants; the town of Springfield* including Springfield Center, about 1,800 inhabitants. The prill- • cipal necessity for .the road is supposed to.be the furnishing of railroad facilities to Springfield Center and the town of Springfield. Springfield Center is now -six miles' distant from the Delaware, Lackawanna and Western railway station and the Oneonta and Mohawk Yalley railway at- Richfield Springs, and .about seven and one-half miles distant from the Delaware and Hudson railroad station at Cherry-Yalley, and above ten miles distant from the' Delaware and Hudson station at Cooperstown. • The freight rate at Cherry Yalley is the Albany rate; the freight rate at Richfield Springs is the Utica ratethe freight rate -at Cooperstown is the Albany rate plus. tlie: charge from Oneonta to Cooperstown, the Delaware and Hudson Company giving'no through rate to Cooperstown,, and the. present rate from Cooperstown to Oneonta for carload •lots is four cents per 100 pounds and from five to fifteen cents- per 100 pounds for broken car lots. It. now costs fifty cents per ton less to ship hay from Cherry Yalley than from Cooperstown. The town of Springfield extends in an easterly and westerly direction. *49The easterly part of the town is nearer to Cherry Valley than to Springfield Center, and the westerly part nearer to Richfield Springs than to Springfield Center, and it is evident that if the proposed railway is built it will still be cheaper and nearer for the farmers in the. easterly part of the town of Springfield to take their produce to Cherry Valley, and for those in the western part of the town to take theirs to Richfield Springs. Thus the principal advantage of the road will be to the village of Springfield Center and to the population of about 900 included within a radius of about two miles from that village.

Various witnesses were sworn as to the probable amount of milk, hay and other products to be shipped from the town of Springfield, assuming that the entire products of the towrn will go over the proposed railroad, which we have seen is not probable. The passenger travel seems to he very light, and it is at present conducted by a stage coach running once a day from Springfield Center to Cooperstown. In the summer there is a line of boats upon Otsego lake which accommodates in part the summer travel..

The stock of the proposed road is $240,000; it is estimated that it will cost $254,000 to build the road exclusive of equipment and the right of way. The equipment is estimated at $100,000, so that the road at the beginning, if the stock represents actual cash, wdll be $114,000 in debt besides the cost of the right of way. It is evident that the road could not be bonded for that amount unless it is fairly demonstrated that it could pay running expenses and interest on the bonds at least. From the record it is extremely probable that the road cannot p>ay running expenses. It, therefore, would apparently be a financial cripple from the start, and there is no public necessity for the construction of a road which cannot maintain itself and which must inevitably be bankrupt from the beginning; such a road in this territory cannot be a public convenience or necessity. ’ •

It is unnecessary to go into detail as to the estimated business and the probabilities that the company may do such. business, and the probable cost of operation and maintenance: The evidence as to the probable business and shipments is evidently mere guess work and greatly exaggerated. A mere statement of the locality of the pro*50posed road and tlíe manner in which that locality is now served by the railroads clearly indicates that there is no necessity for tins road. ....

The question here is not whether the Dailroad Commission would have authority to permit a railroad to be constructed upon a right of way owned by the promoters of the road. The promoters do not own the right of way, but are seeking to take the property of the relators for their own use, which cannot be done. A public use only will authorize the taking of the property of the relators against their will; there is in this case no public. necessity which justifies or requires that the owners be deprived of their property. The order appealed from should be.annulled, with fifty dollars costs and disbursements to be paid by the respondent railway company.

All concurred, except Sewell, L, not voting.

Determination annulled on law and facts, with fifty dollars costs and disbursements to be paid by respondent railway company.