25 N.Y.S. 218 | N.Y. Sup. Ct. | 1893
Proceedings were instituted on behalf of the city to acquire lands for park purposes, pursuant to chapter 466 •of the Laws of 1892. The lands so proposed to be taken include a portion of the appellant’s lands, occupied by its main tracks, in the town of West Seneca. Upon the hearing before the special term, the appellant appeared by its attorney, and objected to the appointment of commissioners to appraise its lands, upon the grounds:
“(1) No authority is given by the act under which this proceeding is taken to take the lands of the Buffalo, Rochester & Pittsburgh Railway Company, or of any railroad company. (2) No authority is given by said act to acquire the right to carry the approaches of parks therein mentioned across the-lands of said railroad company, or to acquire an easement therein. (3) That the land of said company cannot be condemned or taken by the city of Buffalo for park purposes. (4) That the right or easement across the railroad of said company with the park or approaches can only be given by special legislative authority, which has not been given. (5) The said proposed parkway or approach is not a highway in the town of West Seneca, and has not been laid out as such, and that the said city of Buffalo cannot •carry said parkway across said railway, under the act relating to highways.”
The court overruled the objections so made, and appointed commissioners to appraise the lands so proposed to be taken. The statute under which the proceedings were taken provides that
Upon the argument, the counsel for the city announced that there was no intention on the part of the city to interfere with the appellant’s right to operate its railroad over the lands in question; but the taking from the railroad of its title to the lands puts it in the power of the city or its pa,rk commissioners to interfere with its use, and the intention of the officers of the city may be changed. There is another statute which provides for the extending of highways over the right of way of railroad companies, but in it there is no provision for the condemning and taking from the railroad company the fee to the land. The order appealed from, in so far as it appoints commissioners to appraise the lands of the appellant, should be reversed, with $10 costs and disbursements, and the motion to appoint commissioners of appraisal as to appellant’s lands should be denied. All concur.