2 Lans. 294 | N.Y. Sup. Ct. | 1870
Before the railroad was constructed upon the streets and highways over which it passes, the relator, by voluntary grants from the owners of the fee in the soil, acquired the right of way for it, for the purpose of building, laying down, constructing and operating its railroad. These were the terms used in the grants for the purpose of designating and describing the interest which the relator acquired in the land required to be appropriated to the use of the railroad. And they were taken from all the adjacent land owners, whose lands were bounded by the streets and highways made use of, with one single exception, and in that, the interest required by the relator in the land was taken under the proceedings provided for by the general railroad law, which in that and other respects, was rendered applicable to this corporation. The relator was authorized and empowered to construct and maintain a railroad through the streets and highways made use of, for a period not exceeding fifty years. (Laws of 1864, 626, § 4.) And the interest, acquired by means of the grants and proceedings taken, were therefore commensurate with the extent and duration of that privilege. This interest, although an easement, qualified by, and to some extent subject to, the more general one existing in favor of the public over the same streets and highways, was- still an interest as well as an important one in the land itself, beyond that previously secured to the public. ( Williams v. N. Y. Central R. R. Co., 16 N. Y., 97; Mahan v. Same, 24 id., 658, 661; Craig v. Rochester City and B. R. R. Co., 39 N. Y., 404.) It conferred upon the relator not only the right of passing over the streets and highways, but the additional right of appropriating so much of them as was conveniently required for the purpose, to the permanent support of the superstructure required for their use. While this did not necessarily exclude the traveling public from the use of that portion of the streets and highways, it did none the less on that account amount to an actual appropriation of that portion of them to the relator’s usés. And for any. tortious injury to the relator’s superstructure, an action could
If the interest acquired had formed no part of the streets and highways of the town, but had been solely confined to private property, the relator would not have claimed that the superstructure afterward placed upon that was not to be
The statute defining the term “ land,” for the purposes of taxation, does not require that the fee, or any other particular estate, shall be owned in it, in order to render it taxable as -land. For that purpose the term is required to be construed as including not only the land itself, but all buildings and other articles erected upon or affixed to the same, &c. And that is broad and comprehensive enough to include the relator’s superstructure, for it was composed of articles affixed to the land itself, not for a temporary purpose, but for permanent use and profit. This definition was declared to be a general one, and to include the terms “ real estate” and “real property,” whenever they occur in the chapter relating to the subject of taxation. (1 R. S., 5th ed., 905, § 3.) The next section of the same title providing that corporations shall not be taxed upon their capital as personal estate, for that portion of it that may have been invested in real estate, indicates that it was not intended that any particular estate should be required to constitute the term land. (1 R. S., 5th ed., 906,
A similar interest was held to be taxable as land under this statute in the case of the People v. Beardsley (52 Barb., 105). In that case, the relator had secured the privilege of constructing a railway over the Allegany reservation of Indian lands. And by the contract conferring it, there was a special restriction imposed upon the relator by which it was provided that it should not vest the fee of the land, as it clearly could not while it was a portion of the reservation, in the railroad company, nor the right to occupy the same for any purposes other than what might be necessary for the construction, occupancy and maintenance of the railroad. (Id., 107.) This certainly was no greater interest than the relator in the present case acquired. And it was held, as to that interest in that case, that it could be properly taxed as real estate. Since then, that decision has been affirmed by the Court of Apj>eals solely upon the ground that the interest secured by the contract, and the superstructure made upon the land was legally taxable as real estate under the terms of the statute.
The case of the People v. The Board of Assessors of Brooklyn (39 N. Y., 81), contains nothing in conflict with this conclusion. For the main pipes which were then held not to be taxable as land, were neither erected upon nor affixed to the land. And for that reason they were held to be exempt from taxation as real estate. (Id., 87.)
The assessment complained of as erroneous in the present
Marvin and E. Darwin Smith, JJ., concurring. Assessment confirmed.