Peck v. Schenectady Railway Co.

Smith, J.: Defendant’s objection to this judgment on the ground that the complaint failed to allege damage seems to be answered by the case of Amsterdam Knitting Company v. Dean (162 N. Y. 278). (See, also, Pratt v. Roseland Railway Company, 50 N. J. Eq. 150 ; Western Maryland Railroad Co. v. Owings, 15 Md. 199.) The appropriation by a street railroad company of a street in which the abutting owner has the fee is the taking of private property within the settled law of this State. (Craig v. Rochester City & Brighton R. R. Co., 39 N. Y. 404; Henderson v. N. Y. C. R. R. Co., 78 id. 423; Fobes v. R., W. & O. R. R. Co., 121 id. 505 ; Reining v. N. Y., L. & W. R. Co., 128 id. 157; Palmer v. [361] Larchmont Electric Co., 158 id. 231.) With the fee of the land then in the plaintiffs, and the threatened continued occupation of that land by the defendant, plaintiffs’- right to an injunction would seem to be clear. But upon the trial defendant offered, first, that the court should estimate the damage which the plaintiffs would suffer by reason of defendant’s appropriation of any property rights which the plaintiffs might have, and also to give any undertaking which the court might require to indemnify the plaintiffs for any damage they might suffer by reason of the defendant’s appropriation of their land. Upon this offer it is strenuously insisted that the court should not exercise its equitable power of injunction where the plaintiffs would thus have ample protection for any damage which they might suffer. The cases against the elevated railroad in New York city and Brooklyn are cited as cases where the courts gave the alternative judgment which permitted the defendant to pay the damage which it found to be due, in which case the injunction would be denied. As far as we have been able to examine, however, all of these cases were cases in which the plaintiff elected to try the question of damages before the court, and to take the alternative judgment. They were also all cases which sought to enjoin a road which was in operation. To this, however, there is one exception, to wit, Story v. New York Elevated R. R. Co. (90 N. Y. 122). In that case it was sought to enjoin the construction of a road and the trial court denied the plaintiff’s relief. When the case finally reached the Court of Appeals the decision was reversed, and plaintiff was there given relief. But at that time the road had been in operation for five years. In all those elevated railroad cases possession of the street had been given by the municipal authorities, the fee of the street being in the municipality, so that the plaintiffs were rightfully in possession. No case is cited where an alternative judgment, such as is asked for here, has been rendered, where the possession was still in the plaintiff and the road had not , been constructed. By section 1 of article 1 of the State Constitution it is provided that “ When private property shall be taken for any public use the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners, appointed by a court of record, as shall [362] be prescribed by law.”' To hold that the court should, against the protest of the plaintiffs here, assess the damage and grant an alternative judgment would practically deprive the plaintiffs of their con stitutional right to the assessment of such damage either by a jury, or by a commission of not less than three persons. We are of opinion, therefore, that the court should not, if it could, as against the plaintiffs’ protest, assess the damage in this action and grant, alternative relief. It is further urged by the defendant that the court should deny the injunction upon its giving adequate security for the payment of any compensation which might lawfully be found to be due the plaintiffs by reason of the defendant’s appropriation of théir land. To this proposition two answers seem pertinent. The first is that the defendant has established no right to this land. The record does not disclose that the defendant has taken the preliminary steps required by the statute to authorize the condemnation of private property. Another answer is that by the Condemnation Law (Code Civ. Proc. §§ 3357-3384) the possession of land sought to be condemned is only assured to a party already in possession of that land. If not in possession, possession will only be given by the court, prior to actual condemnation, after the defendant’s answer in. the condemnation proceeding is interposed, and then only by a deposit in court of the amount of damages claimed in said answer. While these statutes do not assume to limit the court in the exercise of its equitable discretion, they indicate the policy of the Legislature, which should be a guide to the court in the exercise of that discretion,-and to this extent create a limitation upon its power. The defendant further complains that, the injunction is permanent, and would restrain the defendant’s entry upon plaintiffs’ land even after a right acquired by condemnation. In the first place this apprehension is wholly speculative. If this judgment should be deemed so to operate, it would be at any time amended upon defendant’s subsequent acquisition of any right of entry. We are satisfied, however, that such is not the effect of the judgment. It is' not operative as against any rights hereafter acquired. These conclusions lead to an affirmance of the judgment .below. Judgment unanimously affirmed, with costs.