Miller v. New York & Erie Rail Road

21 Barb. 513 | N.Y. Sup. Ct. | 1856

By the Court, S. B. Strong, J.

The plaintiffs contend that the defendants are bound to construct over and across their rail road, without compensation, a part of a highway recently laid out in the town of Walkill pursuant to the act to regulate the construction of roads and streets across rail road tracks, passed March 29,1853. The first section authorizes the proper authorities to lay out a street or highway across the track of a,ny rail road without compensation to the corporation owning said rail road. The second section requires the rail road corporation to cause the proposed new street or highway to be taken across their track, and to cause all necessary embankments, excavations and other work to be done on their road for that purpose, and (inferentially) at their own expense. And the third'section imposes a penalty of $20 for the neglect or refusal to cause the work to be done within thirty days after notice, to be recovered by the officers laying out the road. The plaintiffs, after having laid out the new road, gave the notice required by the act, to the defendants, and as there has been an omission to perform the requisite work within the time limited by the act, they now seek to recover the penalty.

The act incorporating the defendants was passed on the 24th of April, 1832. That act did not impose upon the company the burthen of constructing new roads across their rail road, but it contained the usual reservation to the legislature of the power to alter, modify or repeal it. The defendants constructed their road previous to the passage of the act of 1853, and were using it when that act was adopted. The question is whether the power reserved to the legislature authorized the passage of an act which purported to allow the local authorities to take in effect a part of the road belonging to the defendants, and to impose a serious burthen upon them, without making them any compensation ; without giving to them the remuneration which the constitution in effect provides for the owners of private property taken for public purposes.

That the rail road is the property of the defendants there can be no doubt. The act of 1853 refers to- the corporations as “ owning” the roads. It is not material to inquire whether their property in the land an'd fixtures is absolute or qualified. The constitution {art 1, § 5) protects all private property, without any further discrimination. It hás been held, and no doubt correctly,, that the property of public corporations is so far private as to be entitled to the constitutional protection. By the terms of the act of 1853, the proper authorities may take a part of the property of the rail road company, for public purposes. A burthen (and it may be a very heavy one) is also thrown upon the company to make all necessary embankments, excavatious and other work to facilitate the passage on the new highway across their rail road, calling of course for the expenditure of the funds of the company. Can they exact these sacrifices of the property of rail road companies without paying them any compensation? If such arrangements were necessary for the safety of the passengers or the freight conveyed on the cars, they might doubtless be required of the companies, although not contemplated when they were organized. That would bring them within the powers reserved to the legislature, and could not violate the inhibition in the constitution. It would be taking the property of the rail road companies for purposes connected with, and for the benefit of, their own institutions. But the construction of new highways over their road is not for the benefit, but rather to the injury, of the companies. The public requiring such new roads may be benefited, and they, it would seem, should bear the consequent burthen. The fact that the local communities were bound to defray the expenses of these improvements would lead to greater caution in their representatives in adopting them, and would often prevent serious imposition upon those who have no voice in the matter.

[Dutchess General Term, April 8, 1856.

The plaintiffs contend that the reservation in the act incorporating the defendants justified this subsequent legislative assumption of their property. The legislature had probably a right to establish what characteristics they pleased in what should be created or acquired by their authority, and had the act incorporating the defendants originally contained a clause requiring them to construct new roads over their rail road at their own expense, they would have taken their charter with this bur-then. Their property would have been subject to the qualification. • But the provision was not in the original charter, nor did it at all qualify their property when it was acquired. The power reserved to the legislature to alter, modify or repeal the defendants’ charter, did not purport to authorize the assumption of their property without compensation, bio power to do that could have been- reserved, for none such could have existed. It would be preposterous to say that the legislature has the power to make any and every requisition upon the defendants as a condition of their retaining their corporate existence. To require them, for instance, to make donations to the towns through which their rail road may pass, or. to any other body politic, or to individuals.

It is not material to inquire whether the legislature has a right to repeal the defendants’ charter, unless it has been forfeited by the misconduct or neglect of its managers. It has not been repealed, and until it shall be, the company is, and will be, protected by the constitution, in its rights of property.

There should be judgment for the defendants.

Brown, S. B. Strong and Rockwell, Justices.]