If the plaintiffs' testator could have recovered all that he was entitled to in the first action, it is, of course, a bar to the second. And this depends, chiefly, though not altogether, upon the question whether the Utica and Schenectady *Page 660 Railroad Company in any way transcended the authority constitutionally vested in them by the legislature. If they did, their road is a nuisance — a perpetual nuisance; and every day's continuance of it is a legal wrong, for which they are liable in damages after they have accrued. If they did not transcend their authority, and yet, in constructing their road, have necessarily injured the rights of others, they are equally liable to respond for prospective as well as accrued damages; and, in such case, they cannot be vexed again in a second action.
Did the Utica and Schenectady Railroad Company transcend the authority constitutionally vested in them by the legislature? If the plaintiffs' testator owned the fee of the land over which the Turnpike Company's road ran, at the time of the transfer of the road to the Utica and Schenectady Railroad Company, it could not be taken away from him without causing his damages to be assessed and paid; and the illegal appropriation of it would make them liable for damages in successive actions as the damages accrued. It seems to be admitted that no such damages were assessed or paid.
The rule that owners of land bounded on public highways primafacie own the land to the centre of the highway is not alone applicable to ordinary highways, but also to turnpikes (Hooker v. The Utica and Minden Turnpike Co., 12 Wend., 371); and although the general act relating to turnpike companies passed March 13, 1807, declares, when the president and directors pay the owners of the lands the sums assessed and awarded by the appraisers in their inquisition, they shall have and hold to them, and their successors and assigns forever, the lands and tenements described in their inquisition; yet it has been always held that this and the special act of incorporation vests in the company the title to the lands over which the road passes only for the purposes of the road, and, when the road is abandoned, the land reverts to the original owners. The company only acquired such an estate in the land taken by it as was necessary to fulfill the end and intent of the corporation, and could hold it to no other use, intent or *Page 661 purpose. Having ceased to occupy the land in question for the purpose of a turnpike road, the Mohawk Turnpike Company, in transferring it, in effect abandoned it; and, although they were authorized by the legislature to transfer it to the Utica and Schenectady Railroad Company, this could not, constitutionally, deprive the original owners of the land of their right of reversion, without compensation. (Davis v. The Mayor, c., ofNew York, 14 N.Y., 526; Williams v. The N.Y.C.R.R. Co., 16 id., 97.) An easement for the purpose of a highway does not authorize, as against the proprietor of the soil, the laying down of a railroad upon the track of the highway. The use of the land for a railroad is totally different from that public right of passage for which highways were designed.
The Railroad Company, therefore, having, without compensation to those entitled to the reversion of the land, constructed, maintained and operated their road upon the highway in question, acted and continued to act unlawfully, and are liable to damages from time to time as they accrued; and, on this ground, the second action is maintainable.
The learned judge then discussed another ground on which he thought the action maintainable, notwithstanding Mahon's recovery in a previous suit, viz., the enlargement and raising of the embankment in 1847 was a new injury for which compensation could not have been recovered in the first action.
WRIGHT, J., was for reversal, on the ground last stated; but SELDEN, DENIO, DAVIES and WELLES, Js., without passing upon that question, were for reversal on the ground first stated, that the appropriation of the land for a turnpike did not authorize its use for a railroad. COMSTOCK, Ch. J., and BACON, J., did not sit in the case.
Judgment reversed, and new trial ordered.
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