#### Joseph L. Spofford *et al.,*Plaintiffs, *against*The Southern Boulevard Railroad Company, Defendant.

[Special Teem.]

(Decided February 23rd, 1889.)

Under the act of April 9th, 1887, for the construction of the Southern Boulevard, which reserved to the several owners of land taken therefor the right “to claim and recover,” from any person or corporation who should subsequently, under legislative authority, construct a railway thereon, “ the full value of the land taken from such owner or owners ” for the boulevard (§ 24), the fee in such land was not taken; and the right of owners of the land to such compensation, even irrespective of the act, was not taken away by the amendment of 1887, which permitted the construction of such railway by a company organized under the general act of 1884 (L. 1884 c. 252), upon complying with the provisions of that act in respect of the consent of owners of • property and the local authorities.

*163The act of 1887 is not unconstitutional or invalid in so far as it permitted the organization of such a company under the general act of 1884, although the act of 1867 provided that no railway should be constructed on the boulevard without a special act of the legislature for the purpose, and a subsequent amendment of the constitution of the state precluded the enactment of such special statute.

Trial on demurrer to complaint.

The action was brought by plaintiffs as surviving executors and trustees o£ Paul Spofford, deceased, who, prior to the year 1867, was the owner in fee simple of certain land formerly within the town of West Farms, and afterward included within the City of New York.

On the 9th of April, 1867, an act of the legislature was passed, entitled, “An act to authorize the towns of Morrisania and West Farms to widen, make, extend, and improve a highway in said towns, to be called 1 The Southern Boulevard.’ ” . Section 24 of that act provided as follows: “Said road, when constructed, shall be kept and maintained for the public use as an avenue and boulevard, and, except for the purposes of crossing the same, no railway or tramway shall be laid or constructed thereon, or upon any part thereof, by any persons or corporations whatsoever, without a special act of the legislature of the state for that purpose first had and obtained; and in case the legislature of the state shall, at any future time, grant to any person or corporation the right to construct any rail or tramway upon said road, or any part thereof, nothing in this act contained shall be construed to affect or cut off the rights of the several owners of land, which shall be taken for laying out the road hereby authorized, to claim and recover from such person or corporation the full value of all the land taken from such owner or owners for the road hereby authorized to be constructed, to the same extent as if no such road had ever been laid out on said lands, and without any deduction for any supposed benefit to said lands to arise from the construction of such rail or tramway.”

Under this act the Southern Boulevard was opened and *164laid out as a highway, and was afterward constantly used for such purpose. A portion of the lands formerly belonging to. Paul Spofford was taken for and included in the boulevard.

In 1887, an act of the legislature was passed, amending the act of 1867, and enacting that section 24 of that act (above quoted) should be amended so as to read as follows :

“Said road, when constructed, shall be kept and maintained for the public use as an avenue and boulevard, and no railway or tramway shall be laid or constructed thereon, except by a railroad company which has been or may hereafter be duly organized under and by virtue of and in conformity with the provisions of chapter 252 of the Laws of 1884, and which has heretofore complied or shall comply with all the provisions of said chapter in respect of the consent of owners of property and the local authorities. ”

The defendant is a corporation organized under the provisions of chapter 252 of the Laws of 1884 (being the general act for the organization of horse railway companies), referred to in the above provision of the act of 1887, and was formed for the purpose of constructing and operating a line of street cars on the Southern Boulevard. It complied with all the requirements of the general act of 1884, in respect to obtaining the consents of the owners of more than one-half in value of the property bounding its line, and of the proper local authorities.

Plaintiffs’ complaint set forth these facts,, and asked for a perpetual injunction against defendant. Defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

*Frederic R. Coudert,*for the demurrer.

*E. P.*Johnson, opposed.

Larremore, Ch. J.

Obviously the public authorities did not, by the passage of the act of 1867, and the proceedings thereunder, acquire the fee to the land of plaintiffs’ testator. This fact is even clearer in the case at bar than it was in *165
      *Washington Cemetery*v. *Prospect*Park, &c., *R. Co.*(68 N. Y. 591), where it is 'held that, in construing a statute authorizing the taking of private property for public use, in the absence of express words, a fee will not be deemed to be taken, where the language and purposes of the act can be satisfied by the taking of an easement. Here not only is there an absence of express words showing an intention to take a fee, but it appears affirmatively that no such intention existed. The provision in section 24 of the act of 1867, reserving to the original owners of the land the right to claim and recover compensation from any person or corporation who should subsequently, under legislative authority, proceed to construct a railroad, is inconsistent with the idea that absolute ownership was acquired under such act. It had been established by a number of cases prior to *Craig*v. *Rochester*City, *&c., R. Co.*(39 N. Y. 404), that the use of land for a railroad imposes upon the owner of the fee a greater and additional burden to that imposed by the use thereof as an ordinary highway.

In the case last named it was further held that there is the same substantial difference in the burden of the easement, though the cars be propelled by horses instead of steam. The following language is from the opinion of the court, at pages 409, 410, and 411: “ I am at a loss to see any apparent distinction in the application of the rule between cases where steam power is employed and those cases where the road is operated by horse power. It is true, there is some difference .in the manner in which the road is constructed, and in the speed with which its cars are propelled, at times, 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. . . . The use of a railroad, no matter how it is operated, whether by horse or steam power, necessarily includes, to a certain extent, an exclusive operation of a portion of the highway for the track of the road, and the running of its cars by the company, and a permanent occupation of the soil. It requires that all other parties shall stand aside and *166make way for its progress. This is clearly inconsistent with the legal object and design of a highway, which is entirely open and free to all for purposes of locomotive travel and transportation.”

Presumably the compensation paid to plaintiffs’ testator , in 1867, when an easement was taken in his land for purposes of a mere highway, was proportioned to that limited use thereof. This would be the ordinary presumption, and it amounts to a certainty in the present case, in view of the fact that the act itself contained a provision protecting the owners’ rights to further compensation when the more burdensome servitude should be acquired. This right to additional compensation still exists, and if one effect of the amending statute of 1887 was to defeat such right, so much of said amending act as assumed to repeal the authority to claim and recover extra compensation would be unconstitutional and void. The proposition is stated thus hypothetically, because I am of the opinion that the right in question would have existed even without express statutory reservation thereof, and, therefore, it is immaterial whether a superfluous statutory provision shall or shall not be considered abrogated. Because the public have by purchase acquired certain privileges in plaintiffs’ land, the state cannot proceed to confiscate the remaining rights therein. This would be depriving plaintiffs of property without due process of law or just compensation, and the act would be fully as unconstitutional whether it did or did not repeal an express statute. The principal value of that part of the act of 1867 which declares the rights of land owners to compensation from a railroad company is that it conclusively shows the legislative intent as to the limited rights in the land originally taken and the limited compensation paid therefor.

I can see no reason why the act of 1887 should not be held constitutional and valid,-in so far as it requires the company in question to be organized under the general act of 1884, instead of under a special, act, as originally provided. It has been suggested that the constititution of the state, adopted since the passage of the act of 1867, precludes the enactment *167of a special statute for that purpose, and that, unless the amendment could be legally made, no railroad could ever be constructed on the Southern Boulevard. But, outside of this consideration, I think the power of repeal and amendment as to this part of the act was ample. So much of the amendment as concerns simply the method of organization would have to be upheld, even if other provisions of the act were pronounced unconstitutional. The general act of 1884 may, therefore, be followed by the defendant, except where an observance of its mandates or an assertion of the privileges conferred by it in usual cases would defeat or trench upon the vested and substantial rights which plaintiffs still possess.

Plaintiffs’ right to an injunction does not depend upon the constitutionality of the act of 1887. Even if the original act of 1867 were held entirely unrepealed and in force to-day, the effect of its express language would be only to conserve plaintiff’s privilege “ to claim and recover from such person or corporation the full value of all the land taken,” etc. These words would seem to apply to suits for damages. In the present action plaintiffs come into equity, and take the position that they are still the owners of certain valuable property rights which the defendant intends to infringe upon and appropriate to its own use, without due process of law or making just compensation. Upon principle, and upon the authority of many cases clearly in point, I think they are entitled to the relief demanded, and that the complaint states a cause of action. It has been decided in some of said cases that, under facts such as are here set forth, the plaintiffs are entitled to sue for a perpetual injunction, although they may have a remedy at law *(Craig*v. *Rochester, ¿-c., R. Co., supra ; Bloomfield G~. L. Co.*v. *Calkins,*62 N. Y. 38.6; *Washington Cemetery*v. *Prospect Park, ¿-c., R. Co.,*supra; *Murdock*v. *Prospect Park, ¿•c., R. Co.,*73 N. Y. 579; *Panning*v. *Osborne,*102 N. Y. 441; *Milhau*v. *Sharp,*27 N. Y. 625).

It may not be amiss to remark, in closing, that I cannot agree with the learned counsel for defendant in his suggestion that the law, as enunciated in *Craig*v. *Rochester, &c., R. Co.*
      *168
      *(supra),*has been rendered obsolete by the passage of the general act of 1884. And I would further say that the assumption in the present ease, that the easement for horse railroad purposes is a “ street .use,” and therefore distinguishable from the easement for a steam railroad, begs the whole question here involved. The very point to be established by defendant is that, under the general act for organization of horse car companies in the streets of cities, defendant has the legal right to lay its tracks and operate its road over the land in question. This defendant has failed to do, but plaintiffs, on the other hand, set up facts which, if true, show that said land is still simple highway which they own, subject only to the one easement for which their testator was compensated.

The demurrer should be overruled, and plaintiffs are entitled to judgment thereon, with costs.

Judgment accordingly.