173 N.E. 224 | NY | 1930
In the month of July, 1927, the county of Orange instituted condemnation proceedings under sections
In this State a distinction is made between the burdens that may be imposed upon a road, urban or rural, when *369
an easement over land is taken for a right of way for highway purposes and when the fee is acquired. When an easement is taken all uses of the land directly or indirectly conducive to the enjoyment of the public easement which the necessity and convenience of the public may require, either then or in the future, are not deemed to be paid for even though the landowners get practically the full value of their land. Only such uses as appertain directly or indirectly to the right of passage and tend in some way to preserve or make more easy the exercise of such right may be imposed upon the easement. For other uses, public and municipal in their character, the landowner is entitled to additional compensation. Thus the lighting of a highway has been held to be one of the burdens upon the fee which must be borne as an incident to the public right of traveling over the way. (Palmer v. Larchmont Electric Co.,
If, however, the fee has been transferred to the municipality such municipality may grant the use of the highway for any public or municipal purposes not inconsistent with nor prejudicial to its use for street purposes. (Osborne v. Auburn Telephone Co.,supra.) The distribution of electricity for light and power purposes is a public and municipal use but not a street use under these decisions.
No distinction can now be drawn between city streets and country highways in this regard. Farmers generally *370 avail themselves of electric current whenever it is available. The electric light has taken the place of the tallow dip or the kerosene lamp. The electric motor has now been installed in lieu of man, woman or child power on so many farms as to be no longer a novelty. The distinction rests on the interest, if any, which remains in the adjacent landowner after the taking of a right of way for highway purposes.
Article 6 of the Highway Law, entitled "State and County Highways," has its origin in the development of a modern scheme of new or improved highways of sufficient public importance to constitute a part of a properly developed system of improved market roads either at State or county expense. It is broad and comprehensive. Such highways are no longer a matter of local consequence. Town highways are provided for by a separate article (Art. 8).
By section
It is, however, urged that the law will not by construction effect a grant of a greater interest or estate than is essential for the public use; that the general rule is that when the language of the statute will bear a construction which will leave the fee in the landowner, such construction will be preferred; and, therefore, that we are bound to hold that the fee remains in the landowner (Bradley v. Crane,
"The extent of the appropriation, in the case of a highway, or of a street, whether of a public easement therein, or of the fee, is to be determined by the language used and upon a consideration of the need to be supplied." (Mott v. Eno,
By section
When land specifically described by metes and bounds is taken for highway purposes without limitation on the nature of the taking; when the owner has been paid its full value and when the title has been vested in the public forever, it is more in keeping with modern concepts of the purpose of a highway to hold that it may be used, with public authority, for all public and municipal purposes not inconsistent with its use for street purposes, rather than to hold that the taking is presumptively for street purposes as strictly understood when the rule was first formulated and that, therefore, any additional burden on the highway, customary and necessary though it may be as an incident to the public use, requires a new taking and additional compensation.
The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.
CARDOZO, Ch. J., CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Judgments reversed, etc. *373