Prior to 1804 the road now in the possession of the relator was an ordinary highway, but in that year the legislature passed an act incorporating the relator and granting it the right to convert the highway into a turnpike and to charge toll for the privilege of traveling thereon. (L. 1804, ch. 90; L. 1805, ch. 77.) This grant was made upon the condition that within five years after the passage of the act the relator should open the highway four rods wide, grade it so that the greatest ascent should not exceed fourteen inches in any one rod and face the surface thereof to the extent of twenty-eight feet of its width with broken stone or gravel to a depth of not less than twelve inches, well compacted together. This condition was performed and since 1809 the road has been a turnpike in the exclusive possession of the relator, which has kept it in repair and has charged the tolls authorized by law. On three occasions the relator has received through contract or condemnation considerable sums of money from different railroads for the privilege of crossing its road or occupying a portion thereof with tracks.
In 1903, apparently for the first time in nearly a century, an assessment was made upon that part of the property of the relator lying within the town of Bethlehem in the county of Albany, which was substantially in the following form: The entire assessment was under the general head of "Incorporated companies," and in the column headed "Names of Taxable persons" was written "Albany and Bethlehem Turnpike Co." In the next column under the head "Description" were these words, "From city line to Babcock's Corners and a branch from Corning's Hill to gate of Isaac Sanders on the River Road below Abbey Hotel — 5 miles of highway." In the third column under the head of "Full valuation of real property taxed" were the figures "$20,000," and in the fourth, under the head of "Total value of real and personal property taxed," the figures were repeated.
The relator does not own the lands over which the road passes, for from the facts stated in the return the fee is presumed to be in the abutting owners. It owns a right, however, *Page 412 granted by the state, which is attached to and cannot be severed from the land. While less than the fee it is practically the same as the fee and worth as much. It is an interest in the land because it cannot exist without it, and includes the exclusive possession of the land and the structures thereon. It is the right to the exclusive possession of land which was once a highway, for the purpose of maintaining it as a turnpike and charging tolls for traveling over the same. It is an actual property right in the soil for an invasion of which, as was held many years ago, trespass quare clausum fregit would lie. (Seneca Road Co. v. Auburn Rochester R.R. Co., 5 Hill, 170, 179.) The possession includes the superstructure erected thereon by the relator, five miles long, twenty-eight feet wide and twelve inches high, as required by the grant from the legislature. Power to maintain that structure on the land is part of the right and includes an interest in the land sufficient to authorize and protect the structure. Said right is property, assignable by contract and transferable by sale under execution or the Tax Law, but it is not easy to assign a name thereto. It is not like the privilege of maintaining a ferry where there is no occupation of land and no superstructure erected and maintained as a condition of the grant. It is not a license, for it is irrevocable except by way of forfeiture for cause. It is more than a franchise, for it is an interest in the land and includes the exclusive possession thereof and of the structures thereon. It is in the nature of an easement in gross which has no dominant tenement, or a right of way in gross "which has neither of its termini on the premises of the owner and is not appurtenant to any estate." (14 Cyc. 1140; 15 Am. Eng. Encyc. [2d ed.] 350; Jones on Easements, §§ 33-49; Elliott Roads and Streets, §§ 1-68; Gale on Easements [7th ed.], 3.) It is the right which formerly belonged to the public, and public easements are always in gross, for there can be no dominant estate. (Id.) It is property, but neither personal nor exempt from taxation and, hence, it was properly assessed as real estate in accordance with the provisions of the Tax Law. (§§ 2, 3, 4, 11 and 21.) *Page 413
The judgment about to be pronounced does not proceed upon the theory that the relator has no interest in the highway subject to taxation, but that the assessors have failed to adequately describe the interest. The superstructures were not assessed, but the highway was. It was not assessed as an ordinary highway, which is not assessable for it belongs to the public, but as the highway of a turnpike company. The assessment is against a turnpike company as owner, and is laid upon five miles of highway between definite points, the total valuation being placed in the real estate column. What else should be included in order to give the property owner adequate notice? There is no room for legal definitions in an assessment roll. It was unnecessary to declare that the property assessed was an easement in gross, or a right of way in gross, neither of which would have been strictly accurate, or even that it was in the nature of the one or the other, for the assessment described the highway of a turnpike company, and that was precisely what the relator owned. The law did not require the assessors to say that the property taxed was the exclusive right to possess, maintain and charge toll for the privilege of traveling over a strip of land in the shape of an oblong parallelogram five miles long and four rods wide, extending from the city line to Babcock's Corners. Assessors are not lawyers, but practical men, and a practical description is a lawful description. Five miles of highway belonging to an incorporated turnpike company does not mean ownership of the fee of the highway, but ownership of the usual right of such companies in the highway. No person could have reasonably understood that it meant anything but the peculiar right of a turnpike company, which, though not easily defined, is known of all. It would have been difficult, without more circumlocution than the necessary brevity of an assessment will permit, for the assessors to have written a better description. While they might have used the word "turnpike," which formerly meant a gate turning on a pivot with pikes for protection, but now means a turnpike road, still the road of a turnpike company is necessarily *Page 414 a turnpike road. The charter of the company is in terms a public act, and, hence, all are presumed to know the nature and extent of the right conferred by it upon the relator. (§ 22.) The act virtually becomes a part of the description, so far as the relator's right in or to the road is concerned. The relator knew its own right, no one could know it better, and I think that right was taxable and was sufficiently described to meet all lawful requirements. For these reasons, I vote for affirmance.
HAIGHT and WERNER, JJ., concur with GRAY, J.; O'BRIEN, J., also reads for reversal; CULLEN, Ch. J., and BARTLETT, J., concur with VANN, J.
Order reversed, etc.