Fourth Department, November, 1911.

[Vol. 147. The acting executor

little or no part in its management. had the custody of these two bonds and pledged them to defendant with other bonds as security for a $5,000 note made by George H. Hedley and wife. This note was subsequently paid from the proceeds of the sale of the other bonds, and thereupon these two bonds were released. The defendant was informed by this executor that these two bonds were not his property but belonged to the estate. Nevertheless the defendant insisted upon applying the proceeds thereof, which it had received, upon the personal indebtedness by the executor to the defendant. This was the conversion alleged and which the jury might have found upon the evidence given by plaintiffs in the absence of any evidence on the part of the defendant. There should not have been a nonsuit. The defendant should have been put upon its defense and the case submitted to the jury. The defendant now claims that some of the evidence given in behalf of the plaintiffs was incompetent and improper and was received under exceptions which do not appear in the record. We must rely upon the record and nothing of this kind appears therein. So far as we know the evidence in question was taken without objection or exception. The defendant further claims the bonds were pledged to defendant for other indebtedness besides the $5,000 note, and that some of the evidence on cross-examination shows this. The most that can be said upon this subject is that there was conflict in the evidence, and that was for the jury to settle, not for the court. The court limited the examination on this subject rather closely. It might well have allowed more latitude, and the apparent conflict might then have disappeared. Many objections are now made to the sufficiency of the plaintiffs' proofs to maintain the action. I do not think it necessary to discuss them in detail. I do not think them well made. They relate largely to the incompetency of the evidence herein before referred to, the failure to put the will in evidence and to produce the books of the Rochester Land Company, and the giving of parol evidence in their absence, the want of identity of the bonds in question, etc. There should be a new trial, and the respondent can then have the benefit of its objections, which it is not in a position to urge upon this appeal, and

App. Div.]

Fourth Department, November, 1911.

appellants will have a chance to avoid these objections, if they are able to do so, and all controverted questions of fact can be submitted to a jury, rather than be determined by the court.

All concurred.

Judgment reversed and new trial granted, with costs to appellants to abide event.

BUFFALO, LOCKPORT AND ROCHESTER RAILWAY COMPANY, Respondent, v. JOHN B. HOYER and Others, Appellants.

Fourth Department, November 15, 1911.

Eminent domain — construction of street railroad through village condemnation of way through common — when common not public park - public park defined - compensation where abutting owner has no fee in street-compensation to owner of fee-measure of damages.

A common established by a landowner who sold lots surrounding it to various grantees, with rights of access over the common to the village street passing through it, is not a public park, although it is under the control of the village authorities, if they have merely treated it as a wide street and have not attempted to embellish or ornament the common on either side of the roadway.

Hence, such common is not exempt from condemnation for street railroad purposes under section 108 of the Railroad Law.

A public park is an extensive area of land devoted exclusively to the use of the public and to be ornamented and embellished. An easement or privilege of an individual to occupy or use the same is contrary to an exclusive dominion in the public authorities, the latter being an essential characteristic of a public park.

Whether a grantee whose lands abut upon the street takes title to the street depends upon the intention of the parties, where the conveyance in terms does not include any part of the fee.

Conveyance examined, and held, that the grantor did not intend to transfer title to a street in conveying lands abutting thereon.

It is only where an owner whose lands abut upon a public street owns a fee in the street, or in some part thereof, that he is entitled to compensation when a street railroad condemns a right of way thereover. But the construction of a street railroad does lay an additional burden upon the lands of an abutting owner who has a fee in the street, and he is entitled to compensation.

Hence, where the grantor of lands surrounding a common subsequently granted a fee therein to a church society owning lands abutting

Fourth Department, November, 1911.

[Vol. 147. thereon, the society is entitled to more than nominal damages where a railroad is constructed on a public street running through the common. The damages should include the value of the strip actually taken by the railroad, subject to the right of passage by the public and also subject to easements of ingress and egress held by other abutting owners; also the value of trees destroyed by the railroad and the damages caused to the residue of the church property by their mutilation and destruction. The society should also be compensated for whatever damage may reasonably result to the residue of its contiguous land by reason of the fact that a portion of its fee is used for street railroad purposes.

KRUSE, J., dissented, with opinion.

APPEAL by the defendants, John B. Hoyer and others, from a final order confirming the report of commissioners in a condemnation proceeding, entered in the office of the clerk of the county of Niagara on the 10th day of October, 1908, and also from a judgment entered in said clerk's office.

Daniel J. Kenefick and George W. Thompson, for the appellants.

Alfred W. Gray, for the respondent.

SPRING, J.:

The plaintiff is a street surface railroad company operating an electric railway from Rochester to Buffalo through the village of Middleport, a village duly incorporated in 1858. The railroad tracks run through a part of the village known as the common, and the defendants abut upon this open tract of land.

Prior to 1827 one John Copeland owned about eleven acres, including the common. He plotted a part of this land and upon his map left an open tract extending east from Main street about eighteen rods to a new street delineated on the map as Vernon street. Surrounding this common he divided the tract into lots, numbering each of them.

On December 14, 1827, Copeland and wife conveyed several of these lots, referring to the map, to one David Lindsey. Some of these lots were on Vernon street, as entitled on the map and referred to as a "new street denominated on said map as Vernon, ground for which street and also ground

App. Div.]

Fourth Department, November, 1911.

for a public common eight rods wide extending from Vernon Street to the above described highway (now Main Street) as exhibited on said map, * the said Copeland hereby

*

agrees shall be faithfully devoted."

On the same day Copeland and others conveyed to the Methodist Episcopal Church Society a lot on the south side of this common, and about midway between Main and Vernon streets. The deed contains this clause: "With the privilege of a public common eight rods deep on the north side of the same, which common shall extend from Main street, running north and south through the said village of Middleport, to a new one called Vernon street."

A church edifice was soon after erected on this lot, and continued to be occupied by the society until 1899, when it erected a church building on the northeast side of the common, which property is still owned and occupied by it—the main entrance to the church edifice being on Vernon street. The first lot owned by it had no other access to its front entrance except over this common, and during its possession ingress and egress were had over that tract. Dwelling houses were erected on the north side of this common, and the defendants Lahey and Hoyer own and occupy two of these lots fronting on the common, and there is no way of reaching them except by passing over the same. Long before the village was incorporated, Main and Vernon streets were connected by a roadway about thirty-four feet in width. Trees were planted on each side of this roadway, and sidewalks were constructed in front of the lots. After the village was organized in 1858 the roadway was improved, and is now macadamized, and is practically continued to the east in a street now designated as Park avenue. The whole common has been accepted and is under the control of the village authorities the same as any other street of the village. They have regulated the building of the sidewalks, travel has been extensive over it, and telephone and electric light poles were erected upon it. The abutting owners used private driveways to reach the road from their lots, and have hitching posts and stepping blocks adjacent to it. On the southeast corner there is a union school building, and a path much used and long well worn extends diagonally across

Fourth Department, November, 1911.

[Vol. 147. the common from this building. There has been no embellishment or ornamentation of the land on either side of the roadway. The trees and the grass have been permitted to grow, but there has been very little attempt on the part of the trustees to treat this common in any other way than a wide street. It was not inclosed. At one time posts were driven along each side of the roadway and a rail or board fastened on top of them, which remained for a few years, but was long ago abandoned. It did not interfere with access to any of the lots over the existing driveways. The use by the public and the exercise of the easement created by Copeland for the benefit of the lot owners have been concurrent, as was intended by the dedicator.

In March, 1849, Copeland, who owned the fee of the common, conveyed the same by quitclaim deed to the trustees of the Methodist Episcopal Church Society, expressly providing, however, that the conveyance was not to interfere with the equitable rights of prior grantees abutting on the common.

The plaintiff, or its predecessor, obtained from the State Railroad Commissioners the requisite certificate of necessity, the consent of the trustees of the village to construct and operate this railroad over the roadway in the common, and the necessary consent of the owners of more than one-half in value of the property bounded on the common. All the preliminaries were complied with.

The defendants, who are the abutting owners on the common, claim it was a public park, and, hence, exempted from appropriation by the plaintiff. (Railroad Law [Gen. Laws, chap. 39; Laws of 1890, chap. 565], § 109, as renumbered § 108 by Laws of 1892, chap. 676, and amd. by Laws of 1899, chap. 710; now Railroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], 191.) The referee correctly held that this open tract of land was not a public park within the meaning of that term in section 108 of the Railroad Law. (Brooklyn Parn Comrs. v. Armstrong, 45 N. Y. 234; Perrin v. New York Central R. R. Co., 36 id. 120; 21 Am. & Eng. Ency. of Law [2d ed.], 1066.)

A public park signifies an extensive area of land devoted exclusively to the use of the public and to be ornamented and embellished. An easement or privilege to occupy or use the