#### VAN KLEECK et al. v. DUTCHESS COUNTY R. CO.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Railroad Companies—Farm Crossings.

In a proceeding to compel a railroad company to build a bridge for a farm crossing, the cost to the railroad, as compared with the benefit to the landowner, will be considered.

Appeal from special term, Dutchess county.

Action by G-. A. Van Kleeck and others against the Dutchess County Railroad Company. There was a judgment in favor of plaintiffs, and defendant appeals. Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Milton A. Fowler, for appellant.

Hufcut & Travis, for respondents.

PRATT, J.

This is an appeal from a judgment rendered at a trial before a judge without a jury. The action was brought by the plaintiffs, who own a farm through which the defendant took a strip, of land, by condemnation, for its railroad, to compel the defendant to build a crossing under its railroad for stock at one point, and a bridge over its railroad for teams and stock at another, in addition to certain crossings already built by the company. From the proofs, before the court, it is difficult to perceive any necessity for a bridge over the railroad at all, and it is also very questionable whether any more cattle , culverts are required for the reasonable use of the farm owned by the plaintiffs. There is no such amount of travel over a farm crossing as to justify the great expense of building a bridge over a railroad. It is well settled that the cost to the railroad, as compared with the benefit to the landowner, is to be taken into consideration, in deciding whether a crossing shall be required. Jones v. Seligman, 81 N. Y. 190-196; Wademan v. Railroad Co., 51 N. Y. 568. The interest of neither party is to control, but the power to compel the building of proper crossings and culverts is to. be exercised in a proper manner, having due regard to the convenience of the owner of the land, and without subjecting the railroad to extravagant, burdensome, and unreasonable expense. The question is one that depends upon the facts and circumstances of *903each particular case, the location of the lands, and the needs and necessities of the owner. While he is to be reasonably accommodáted, the railroad must be justly and equitably dealt with. What the expense would be to make the improvements demanded by the plaintiff was a material fact, which the court below refused to find. This we think was error. It was also error in refusing to find the height, details, and cost of overhead bridge, with approaches, and also cost and kind of under-crossing for cattle.

There are numerous exceptions remaining, but we will only notice one other, to wit, in permitting a nonexpert to answer the following question, “Is it practicable to build a bridge there, over that railroad, at a reasonable expense?” No one but an engineer, or a man experienced in bridge building or kindred work, could intelligently answer such a question. Besides, the answer decided the issue in the case.

It seems to us, in view of the above reasons, and the fact that the defendant has already built three grade crossings within about a third of a mile, and that to comply with the demand of the plaintiff will entail great expense and hardship upon the defendant, there ought to be a new trial. Judgment reversed, and new trial ordered; costs to abide the event. All concur.