We think the order appealable. Although by its terms the matter is remanded to the tax commissioners, we are referred to no statute under which they can proceed further. Both parties agree that the proceeding is a special one, and we find no aspect in which the order can be regarded as other than a final one. In this respect it differs from the Moore Case (67 N.Y. 555), where a rehearing was ordered before the Special Term, andMatter of the Harlem Railroad (98 N.Y. 12), where the appeal was dismissed, because for aught that appeared, the order was made in the exercise of discretionary power conferred by statute, and from the other cases cited by the respondent for one or the other of these reasons.
Upon the merits the appeal is well taken. That the things in question form an essential and necessary part of the relator's railroad, as now constructed within the city of New York, cannot be doubted; that of themselves they constitute land within the definition of that term, given in the statute relating to property liable to taxation (1 R.S., tit. 1, chap. 13, art. 1, § 2), is equally clear (People, ex rel. Elevated *Page 326 R.R. Co., v. Comrs. of Taxes, 82 N.Y. 459), and if so, they are liable to assessment to whomsoever has that interest in the real estate which will protect the erection or affixing thereon of these structures, and their possession. (Smith v. Mayor,etc., 68 N.Y. 552.) As to the tacks, rails, sleepers, switches and sidings forming the superstructure upon which the relator's cars run, it is necessarily conceded that, under the law as interpreted in this State, they are to be regarded as real estate belonging to the corporation, and assessable as such, but as to the other subjects which have been treated by the commissioners as equally liable, the contention of the learned counsel for the relator is, that they form part of a public work, erected for the accommodation of the public as part of the improvement known as the Fourth avenue improvement, and belong, not to the railroad company, but to the city, and in its support is cited the statute entitled "An act to improve and regulate the use of the Fourth avenue in the city of New York." (Laws of 1872, chap. 702.)
We find in none of its provisions warrant for such exemption, nor any intention on the part of the legislature to release the defendant from any obligation or liability previously existing, or to which it was bound by the general law. A corporation can construct or operate a railroad only for public use; it cannot exercise its necessarily great powers, except in furtherance of the objects of its incorporation. It may without special permission, and in carrying out its own plans, cross a railroad or highway, not only upon a level, but by means of bridges, viaducts, culverts, under or over passages, and in one way more than another conduct its operations with greater concern for the public safety, but it has never yet been held that the bridge or tunnel by which this safety was promoted did not partake of the incidents of its other property. It may go through a cutting, or upon an embankment, and in either case by walls provide against danger from the slipping of the earth. The whole line might be executed in tunnel, but one as much as the other would be, within the meaning of the law, land, and each equally in possession of the company. Now when we *Page 327 look at the statute (1872, supra) upon which reliance is placed for a different rule, we find authority conferred upon the relator, under certain conditions, to regulate the grade of its railroad in the Fourth avenue, and to construct viaducts, foot and road bridges over any such excavations and tunnels under it, as will make the same safe and convenient to persons crossing, and railroad trains and passengers traveling thereon; at certain streets it prescribes crossings, stone arches and iron bridges, some for foot passengers, others for foot passengers and carriages, and in those places, iron railings or brick walls outside the railroad tracks, to prevent crossing at a level; and where there is an open cut, retaining walls; and when all is done, the same law declares that the "tunnel and railways shall be exclusively for the uses and purposes of said railroad company," and it is made unlawful for any person other than a public officer, in the execution of his duty as such, "to enter or pass upon or through the same, or any portion thereof, on foot or in any other way than in the proper cars of this corporation provided for that purpose." The premises, therefore, upon which these various structures are placed are in the exclusive use of the relator, and they are for the accommodation of the public in no other sense than is the railroad itself for public use. The act of the legislature permitted that appropriation, and its effect is not impaired because the city of New York is compelled by the same act to pay a portion of the expense of construction. The power to make the improvement was conferred solely upon the relator. The city was forbidden to obstruct either the improvement, or the use of the Fourth avenue above Forty-second street for that purpose. Thus it neither controlled the improvement, nor can it be said in any sense to possess it. On the other hand the relators not only controlled the improvement, but when completed could not only use it themselves, but by lease or otherwise, and on their own terms, permit the trains of other railroads to move over it. The principles applied in theElevated Road Case (82 N.Y. 459), and in the cases there cited, apply here. It can make no difference in respect to taxation, whether the rail is laid upon the surface of the *Page 328 road, or placed on pillars, or carried through a covered way or tunnel. In either case the structures adopted to sustain it, or facilitate and protect its use, are, within the meaning of the law, land, and for them, as described by the commissioners, the relators were liable to be taxed.
There was, therefore, no error on the part of the commissioners, and it follows that the order of the General Term should be reversed, and the order of the Special Term affirmed.
All concur, except RAPALLO, J., not voting.
Ordered accordingly.