Matter of City of New York (Juniper Ave.)

Andrews, J. A number of years ago the Brooklyn City Railroad Company acquired by purchase a tract of land in the borough of Queens abutting upon its right *391 of way. This land it subsequently leased to the Brooklyn Heights .Railroad Company in whose possession it now is. No buildings have been erected but it is surrounded by a high fence and is covered by numerous railroad tracks. Upon these tracks the lessee stores its cars when not in use and it or some similar parcel is essential for the proper and convenient operation of the railroad. In 1905 the city of New York instituted proceedings for the opening of a street called Juniper avenue. Commissioners were duly appointed to appraise the damages resulting and to assess the benefits. The commissioners later made a report assessing the land in question for S3,953. Their report constituted a finding of fact that this particular parcel was benefited to that extent. The report was confirmed by the Special Term but on appeal to the Appellate Division the resulting order was reversed as a matter of law upon the theory that this property being devoted by the railroad company to a public use no possible benefit could have accrued to it because of the opening of a street in the neighborhood. That court, therefore, returned the report to the commissioners, with instructions to strike out the assessment and redistribute the amount thereof upon other property within the area benefited. The commissioners again heard evidence, considered the matter and finally in obedience to these instructions made a new report in the form required of them. An order confirming this second report was made and unanimously affirmed by the Appellate Division. Then an appeal was taken to this court from such final order and also from the intermediate order of the Appellate Division reversing the original report of the commissioners. As the action of the commissioners involved a finding of fact that no benefits were received and this finding has been unanimously approved, we might not review the last order appealed from were it not for the fact that we are also *392 reviewing the first order. The question is, therefore, properly before us. whether the reversal of the first order may be sustained. Whether or not a particular parcel of land has been benefited by a particular improvement is ordinarily a question of fact. The test is not whether as now used by its present owner any advantage is received but whether its general value has been enhanced. It is immaterial whether land is owned by a railroad company or by a church or by an individual unless we can say as a matter of law that the improvement may not by any possibility increase the value of the property. If we cannot, the extent of the benefit is for the determination of the commissioners. They may consider all the circumstances. A certain parcel may be held under such a restricted title as to enjoyment or alienation that a local improvement is of less advantage to it than to another parcel of equal size owned in fee simple absolute. (Owners of Ground, etc., v. Mayor, etc., of Albany, 15 Wend. 374; Matter of Mayor, etc., of N. Y., 11 Johns. 77; People ex rel. Howlett v. Mayor, etc., of Syracuse, 63 N. Y. 291.) But in one case, and one only we have said that the opening or widening of a street cannot as a matter of law be of benefit — where a railroad occupies a strip of land for its right of.way. (N. Y., N. H. & H. R. R. Co. v. Vil. of Port Chester, 149 App. Div. 893; affd., 210 N. Y. 600.) Such land is used permanently by the railroad corporation in its operation. As a practical matter it may not be severed from other property and sold. It is a highway devoted to public travel. (Allegheny City v. W. P. R. R. Co., 138 Penn. St. 375.) Not because the owner is a railroad corporation was the rule adopted; not because the land is devoted to a public use, but because the public use to which it is devoted is in all probability permanent and is inconsistent with the idea of any benefit from such an improvement as we are here considering. Even so used other *393 improvements might be of advantage to the right of way. It has been said that an assessment for a sewer might properly be imposed upon it. (Troy & Lansingburgh R. R. Co. v. Kane, 9 Hun, 506; affd., on other grounds, 72 N. Y. 614.) However this may be, we are here dealing with a different question. The land in dispute is used to-day for railroad yards. This use it is true is a public one. The property doubtless might not be condemned for other purposes without express authority conferred by the legislature (Matter of City of New York, 226 N. Y. 128), but the use is not of such a character that we can say as a matter of law no benefit could possibly be acquired by the opening of Juniper avenue. A mere glance at the map shows that as a result it may fairly be inferred that its market value will be increased. The land is not devoted as a permanency to railroad uses. To-morrow it may be sold and its present owners obtain the benefit of the advance. This being so we think that the result reached in the Appellate Division was erroneous. (Mt. Pleasant Borough v. B. & O. R. R. Co., 138 Penn. St. 365; L. & N. R. R. Co. v. Barber A. P. Co., 197 U. S. 430.) The orders of the Appellate Division and that of the Special Term must be reversed and the matter remitted to the commissioners for further consideration in accordance with this opinion, with costs in all courts. His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin and Crane, JJ„, concur. Orders reversed, etc.