The determination of the respondent that a street should he opened in the village through the lands of the appellants was conclusive as to the necessity and the propriety of such street. (The People ex rel. The City of Ithaca v. The D., L. & W. R. R. Co., 11 App. Div. 280, and cases cited.)
Tinder the laws of this State the respondent had the choice of two proceedings in the premises, one being authorized by chapter 62 of the Laws of 1853, which declares it to be lawful “ for the authorities of any city, village or town in this State who are by law empowered to lay out streets and highways, to lay out any street or highway across the track of any railroad now laid or which may hereafter be laid without compensation to the corporation owning such railroad; but no such street or . highway shall he actually opened for use until thirty days after notice of such laying out has been served personally upon the president, vice-president, treasurer or a director of such corporation.”
And the other proceeding could be taken under chapter 291 of the Laws of 1870, being the act for the incorporation of villages and the various amendments thereto. By subdivision 25 of section 3 of title 3 of that act the trustees of the village are authorized “ to-lay out and open new roads, alleys and streets,”
And it is further provided in section 1 of title 7 of that act that, a village incorporated thereunder should constitute a separate highway district, and “ shall have power to discontinue, lay out, open* widen, alter, change the grade or otherwise improve roads, avenues, streets, public parks or squares, lanes, crosswalks and sidewalks, and for that purpose may take and appropriate any lanid in said village / but no road * * * shall be opened or altered unless all claims for damages on account of such opening or altering shall be released without remuneration, except on the written petition of at least ten *572freeholders residing in said village, which petition shall specify the. improvement to be made, describe the land to be taken, state the owner or owners thereof when known, and shall be filed in the ■office of the clerk of the village.”
Provision is further made for the assembling of the trustees and the proceedings stated in the petition herein.
Section 2 of title 7 of the act we are considering was amended • hy chapter 243 of the 'Laws of 1896, taking effect on the fifteenth ef April of that year, and provided for the appointment of three •commissioners by the County Court to assess the damages to the landowners and persons interested in the route of the' proposed highway. 'The commissioners were required to . determine and ■award the owner of such lands such damages as he would sustain by the proposed alteration or improvement after making allowances for •any benefits that he might derive therefrom. This decision was required to be filed with the village clerk, and, within twenty days •after the filing, provisions were made for confirming or vacating the decision of the commissioners by the court," which decision was to be final unless' proceedings were duly taken for that purpose.
The determination of the village authorities to open the street ■and'take the land necessary .for that purpose was necessary as a preliminary step in proceeding to cross the railroad lands under either ■of the statutes cited.
Under the statute of 1853 it is only necessary, after such deter-' ruination has been made, that the thirty days’ notice required by that statute should be given to open the highway for use. The further duty of opening the same across the track devolved upon the railroad company.
Under the law providing for the incorporation of villages, for the purpose of ascertaining, the damages only, the proceedings must be had for the appointment of commissioners in the County Court, but the two statutes may be construed together in arriving at the legislative intent as to the right of towns and other municipalities to •open streets and highways that- shall cross railroad tracks, and they ■seem to indicate a well-defined policy in favor of the right to make ■such crossing under proper conditions.
In construing the act of 1853, it was held in The Albany Northern R. R. Co. v. Brownell (24 N. Y. 345) that a highway could *573not be laid out over grounds acquired by a railroad corporation for-the site of an engine house and necessary for its use at a station.
And in Boston & Albany R. R. Co. v. The Village of Greenbush (52 N. Y. 510) it was held that the act of 1853 did not. authorize the laying out of streets and highways across the tracks of' any railroad which were used for storing cars or exclusively for-mating up trains.
In Pres., etc., Delaware & Hudson Canal Co. v. The Village of Whitehall (90 N. Y. 21), under the statute of 1853, it was held that the word “ track ” signifies the entire roadbed, and not .merely the iron or railway, but roadbed, including turnouts and switches or other contrivances for passing engines or cars from one line of rails to-another or for public traffic purposes. In that case the court found that the railroad premises sought to be crossed were “ five rods in width, is covered by four railroad tracks, two of which are the main tracks for the railroad for the passing'of cars, and two of which are-extra tracks extending several hundred feet, both to the north and south of the proposed street crossing, and are used in' connection with others for switching cars, making up trains, and for allowing cars to stand upon them until they can be put into trains about to> depart,” which are characterized more like a yard for the transfer-of cars than depot grounds. The court here sustained the contention of the village as against that of the railroad company, and Judge Danforth concludes the opinion with a statement which seems to refute the contention of the appellants here, that the railroads in the case at bar should be protected from this street crossing because it was a “ railroad yard,” and is as follows: “ To hold otherwise would enable a railroad company by a judicious adjustment of switches, turnouts, turntables, water tanks and other accessories, of its roadway or business so to control its whole way as to exclude- ' a. new street or highway crossing at any point along its line.”
The learned counsel for the appellants earnestly contends that the railroad lands sought to be crossed, having been devoted to one public use, cannot be taken for another without special authority from, the Legislature. (Citing In re The Gity of Buffalo, 72 Hun, 422, and cases there cited.) This rule only applies where it is sought to. deprive the person or corporation to which the first public use ia granted, of the substantial use of the property. An easement may*574be acquired in invitum in such property when it may be enjoyed without detriment to the public or without interfering with the use to which the lands are devoted. (In the Matter of the Rochester Water Commissioners, 66 N. Y. 413.)
The'respondent in the case' at bar did not seek to deprive the appellants of the title to their property or of its beneficial use, but to secure a passage for the public as a right of way over the lands. Again, it will be observed that the Village Corporation Act authorizes the village to take any lands within its borders. Is this not a legislative declaration'of the right to use the' railroad lands for streets as well as any other lands ?
The respondent has assumed in its proceeding for the appointment of commissioners that the appellants would sustain damages by crossing their tracks, which damages should be assessed and paid before the street could be opened. Of this the appellants complain; not, that they have not sustained damages, but that the County Court had. no power to appoint commissioners to assess them. Whether the appellants have sustained damages is a question to be determined by the commissioners; they may hold-that under the act of 1853 no damages should be awarded, leaving the respondent to proceed under that act and give the thirty days’ notice required by it. In any event, we do not perceive how the appellants are aggrieved or injured by the proceeding. If entitled to damages, ■such damages will be awarded' and the appellants will have the benefit thereof; if no damages are awarded, the appellants will be in no worse situation than if the proceedings were entirely under the act of 1853.
The appellants make the further point that the County Court had no jurisdiction to appoint commissioners to assess the damages, if any, for crossing the appellants’ lands with this street, because the appellants’ principal place of business was outside of the county, of Herkimer, and they cite the closing paragraph of section 14 of the 6th article of the State Constitution, which is as follows: “ The Legislature may hereafter enlarge- or restrict the jurisdiction of the County Court, provided, however, that their jurisdiction shall not be so extended as to authorize an action therein for the recovery of money only, in which the sum demanded exceeds two thousand dollars, or in which any person not a resident of the county is a defendant.”
*575This grant of power to the Legislature as to the County Courts is not restricted except in an action for the recovery of money in which a person not a resident of the county is a defendant. The proceeding at bar is not an action. It is not an action for the recovery of money. It is a special proceeding appertaining to the lands of the appellants which are located in the county of Herkimer, and we entertain no doubt but that the County Court had authority to appoint the commissioners. (See limen v. Smith, 148 N. T. 415.) Chapter 243 of the Laws of 1896 was passed after the constitutional amendment above quoted, authorizing the Legislature to enlarge the jurisdiction of the County Court.
These views lead to the conclusion that the order appealed from should be affirmed, with costs.
All concurred.
Order affirmed, with costs.