Williams v. The New-York Central Railroad Company.

the public thus acquire any greater interest therein than a right of way, with the powers and privileges incident to that right; such as digging the soil, and using the timber and other materials found within the limits of the road, in a reasonable manner, for the purpose of making and repairing the same. Subject to this easement, and this only, the rights and interests of the owner of the fee remained unimpaired. It is quite clear, therefore, even if the true construction of the eleventh section accords with the view taken by the counsel for the defendants, that the legislature had no power to authorize the company to enter upon and appropriate the land in question, for purposes other than those to which it had been originally dedicated, in pursuance of the highway act, without first providing a just compensation therefor."

It was urged in that case, as in this, that using the road for a railway was only a different mode of exercising the right which had been acquired by the people; that the use was virtually the same, viz., that of accommodating the traveling public. But the argument met with no favor from the court. Judge NELSON says: "It was said on the argument that the highway is only used by the defendants for the purposes originally designed, the accommodation of the public, and for this compensation has already been made. This argument might have been used with about the same force in the case of Sir John Lade v. Shephard (2 Strange, 1004)."

He adds, on this subject: "The claim set up (by the defendants) is an easement; not a right of passage to the public but to the company, who have the exclusive privilege of using the track of the road in their own peculiar manner. The public may travel with them over the track, if they choose to ride in their cars."

This case, decided by our late Supreme Court upon full consideration and in so emphatic a manner, ought to be conclusive, unless it appears upon principle to be clearly erroneous. It has never been overruled, nor has its force been materially impaired by any decision in this state. The case SMITH Voi II

14

Williams. The New-York Central Railroad Company.

of Adams v. The Saratoga and Washington Railroad Company (11 Barb. S. C. R., 414) might seem, both from the note of the reporter and from some of the remarks of the learned judge who delivered the opinion, to be inconsistent with the case just reviewed; but upon careful examination it wili be found that nothing which was necessarily decided in it conflicts in the slightest degree with that case.

The action was ejectment, to recover portions of a street in the village of Whitehall called Church-street, upon and along which the defendants had constructed their railroad track. Jeremiah Adams, under whom the plaintiff claimed, had originally dedicated the street to the use of the public, laying out lots on each side, all of which he had sold and conveyed to different individuals. The plaintiff's claim rested upon the ground that the title of the purchasers of these lots did not extend to the centre of the street. court, however, rejected this claim, and held that the plaintiff had no title whatever to the land occupied by the defendants' road. This certainly was sufficient to dispose of the case, and all that was said, therefore, upon the question depending here, was strictly obiter. The same may be said in regard to the case of Milhau v. Sharp (15 Barb. S. C. R., 193). The question did not arise in that case.

The

We might, therefore, with propriety, perhaps, consider the case of The Presbyterian Society in Waterloo v. The Auburn and Rochester Railroad Company (supra) as definitively settling the point in this state.

I will, however, refer to the case of The Philadelphia and Trenton Railroad Company (6 Whart., 25), by way of illustrating the reasoning that must be resorted to in order to sustain the right of a railroad company to occupy a highway, without making any compensation to the individual owners of the fee. The case came before the Supreme Court of Pennsylvania, upon exceptions to the report of the jurors or commissioners appointed by the Court of Quarter Sessions of Philadelphia county to designate the route of the road

Williams v. The New-York Central Railroad Company.

they having located a part of the road upon and along Front street, in the district of Kensington, a part of the city of Philadelphia.

Exceptions were taken by the commissioners having charge of the streets in Kensington, and also by the individual pro prietors of lots on Front-street; by the former, on the ground that the location of the road upon the street interfered with the public easement vested in the corporation of the city, and by the individual citizens on the ground that private property was taken for public use without compensation, contrary to the provision of the state constitution.

The exception of the commissioners is answered by Chief Justice GIBSON in this wise. He says: "The legal title to the ground, therefore, remains in him who owned it before the street was laid out; but even that is an immaterial consideration, for an adverse right of soil could not impair the public right of way over it, or prevent the legislature from modifying, abridging or enlarging its use, whether the title was in a corporation or a stranger." It is unnecessary here to question the soundness of this position, although ▲ doubt might arise whether an easement which is quasi at least a matter of contract can properly be abridged or enlarged by the legislature. The doctrine may perhaps be true in respect to the streets of a city, so far as the corporation alone is concerned, on the ground that the easement is not for the exclusive benefit of the corporators but of the whole people, and, therefore, that the ultimate trust is in the state government; but that the legislature have the power to enlarge a use, as against the donor or vendor of such use, is a doctrine to which I cannot give my assent.

But the chief justice gives a different answer to the excep tion by the individual proprietors. He says: "What, then, is the interest of an individual inhabitant, as a subject of compensation, under the constitutional injunction that private property be not taken by a corporation for public use without it? Even agreeing that his ground extends to the middle

Williams. The New-York Central Railroad Company,

of the street, the public have a right of way over it. Neither the part used for the street nor the part occupied by himself is taken away from him; and as it was dedicated to public use, without restriction, he is not within the benefit of the constitutional prohibition, which extends not to matters of annoyance."

Is this sound doctrine? Is it true that one who dedicates land, for a highway or street, dedicates it to the public use without restriction? I apprehend it is an assumption wholly unfounded, and contrary to a multitude of cases in which it has been held that the public acquire nothing beyond the mere right of passing and repassing upon the highway, and that in all other respects the rights of the original owner remain unimpaired.

I will not dwell longer upon this case, as it will not be seriously, and cannot be successfully, contended either that the dedication of land for a highway gives to the public an unlimited use, or that the legislature have the power to encroach upon the reserved rights of the owner by materially enlarging or changing the nature of the public easement.

The only plausible ground which can be taken is that which was assumed in the case of The Presbyterian Society of Waterloo v. The Auburn and Rochester Railroad Company (supra), and which has also been assumed here, viz.: That to convert a highway into a railroad track is no material change in, or enlargement of, the uses to which it was originally dedicated; that the construction of a railroad along a highway is simply one of the modes of accomplishing the object of the original dedication, viz., that of creating a thoroughfare and passage-way for the public; in short, that the railroad is a species of highway, and that the two uses are substantially identical.

But is this assumption just? Are the two uses the same? If the only difference consisted in the introduction of a new motive power, it would not be material. But is there no distinction between the common right of every man to use

Williams v. The New-York Central Railroad Company.

upon the road a conveyance of his own at will, and the right of a corporation to use its conveyances to the exclusion of all others; between the right of a man to travel in his own arriage without pay, and the right to travel in the car of a railroad company on paying their price?

It may be said that the use of the road as a common highway is not subverted; that a man may still drive his own carriage upon it. Without pausing to notice the fallacy of this argument, and the impracticability of the enjoyment of such a right where railroad trains are passing and repassing every half hour, let us look at the subject in another point of view. The right of the public in a highway is an easement, and one that is vested in the whole public. Is not the right of a railroad company, if it has a right to construct its track upon the road, also an easement? This cannot

be denied, nor that the latter easement is enjoyed, not by the public at large, but by a corporation; because it will not be pretended that every man would have a right to go and lay down his timbers, and his iron rails, and make a railroad upon a highway. Here, then, are two easements; one vested in the public, the other in the railroad company. These easements are property, and that of the railroad company is valuable. How was it acquired? It has cost the company nothing. The theory must be that it is carved out and is a part of the public easement, and is therefore the gift of the public. This would do, if it was given solely at the expense of the public. But it is manifest that it is at the joint expense of the public and the owner of the fee. Ought not the latter, then, to have been consulted?

But it is unnecessary to refine upon this case. Any one can see that, to convert a common highway, running over & man's land, into a railroad, is to impose an additional burden upon the land, and greatly to impair its value. As no compensation has, in this case, been made to the owner, his consent must in some way be shown. The argument is, that as he has consented to the laying out of a highway upon his