It is not disputed that a railroad corporation on June 23, 1853, purchased in fee that tract of land "bounded by the two outward lines of the railroad constructed or to be constructed by the said company." The lands so described, so far as now under consideration, are further described as being seventy-five feet wide across lot 13 mentioned in the deed conveying said property. The plaintiff is the successor of such railroad corporation.
About the time when such land was purchased by it, the corporation constructed railroad tracks thereon, and it, with other lands constituting its roadway, has ever since been used by the corporation and its successors as railroad property. Upon it at the time of the trial of this action were railroad tracks, which are a part of the plaintiff's main roadway, from Buffalo to Niagara Falls, and over it were un about two hundred trains daily. It does not appear how many railroad tracks were maintained upon such piece of land in 1867, but at the time of the trial of this action there were two tracks and three side tracks thereon.
Upon a petition duly filed therefor, the city of Buffalo, in 1867, by resolution of its common council, declared that it thereby determined to take and appropriate the land and property necessary to lay out and extend Delavan avenue from its present (1867) termination on Niagara street in said city westerly to the towing path of the Erie canal. The land so declared to be necessary to lay out and extend Delavan avenue was a strip sixty-six feet wide across the land so purchased by the plaintiff's predecessor in title on June 23, 1853, *Page 117 and land of other persons adjoining the same on either side. The resolution was passed pursuant to the authority of title 8 of the charter of the city of Buffalo, being chapter 230 of the Laws of 1853. Proceedings were continued pursuant to said title of the charter, and commissioners were appointed to ascertain and award to the respective owners of the property taken such damages as were a just compensation to them respectively. Such commissioners duly reported, and their report was confirmed by the court. The plaintiff was made a party to the proceeding and was awarded damages "For all its rights, title and interest in, and in full of, all damages for parcel No. 2" (the strip across the railroad company's land) the sum of $132. The award to the plaintiff's predecessor was paid and accepted by it.
By section 18 of title 8 of the charter it is provided that "Upon such payment * * * the fee of the land shall vest in the city." It will not be helpful at this time to speculate upon what determination would have been reached by the common council if the plaintiff's predecessor in title, then the owner in fee of the land on which its roadway was maintained, had appeared before it, and urged that the land should not be taken and appropriated for the extension of Delavan avenue. The plaintiff's predecessor in title did not, so far as appears, oppose the resolution of the common council or appear in the proceeding. It apparently acquiesced therein, and it accepted the award for damages made to it.
In determining what interest the city of Buffalo obtained in the land by virtue of the resolution and proceedings mentioned, it is necessary to consider briefly the rule or rules of law affecting its right to take and hold the land or some interest therein.
Lands already taken by condemnation or acquired by purchase for public use should not be taken for another public use unless the reasons therefor are special, unusual and peculiar. For this reason it has been frequently held that where lands have once been taken or acquired for public use, they cannot be taken for another public use, at least if such other *Page 118 public use would interfere with or destroy the public use first acquired, unless the intention of the legislature that such lands should be so taken is shown by express terms or necessary implication. (Matter of Mayor etc., of N.Y. [East 161stStreet], 52 Misc. Rep. 596; affd., on opinion in the court below, 135 App. Div. 912; affd., 198 N.Y. 606; Matter of Boston Albany R.R. Co., 53 N.Y. 574; Matter of City of Buffalo,68 N.Y. 167; Prospect Park C.I.R.R. Co. v. Williamson, 91 N.Y. 552;Albany Northern R.R. Co. v. Brownell, 24 N.Y. 345;Suburban R.T. Co. v. Mayor, etc., of N.Y. 128 N.Y. 510;Matter of Folts Street, 18 App. Div. 568.)
Notice was duly published as required by the charter that the common council of the city had determined to take and appropriate the land and property necessary to extend Delavan avenue as therein stated. The plaintiff and its predecessor knew, or should have known, of the provisions of the city charter, including the one declaring that the fee of land taken for street purposes vests in the city. On the other hand the city knew that upon the land sought to be acquired there was constructed one of the railroad corporation's most important roadways. Was it the defendant's intention to exclude the railroad corporation therefrom?
Lands may be used for railroad purposes and for a highway, crossing at the same time. Such uses are not necessarily inconsistent. When lands in use as a railroad right of way are taken by condemnation for the purpose of opening a street across such right of way, the municipality ordinarily obtains a common right with the railroad company for the use of the land condemned and the railroad company continues to use its right of way for its corporate purposes not inconsistent with its use as a street crossing. (Chicago N.W. Ry. Co. v. Town of Cicero, 157 Ill. 48;Illinois Central R.R. Co. v. Town of Normal, 175 Ill. 562. )
The amount awarded the plaintiff for damages, and the history of the proceeding and the subsequent conduct of the parties, show that it was not the intention of the city to *Page 119 interfere with the railroad company's easement for railroad purposes. The municipality knew and should be presumed to have taken into consideration that there is no express authority given by the city charter to take the lands sought by it for street purposes to the exclusion of the railroad corporation for its right of way. By the proceedings maintained by the city, and in which the plaintiff's predecessor in title apparently acquiesced, the city should be held to have obtained the fee of the land and all interest therein, subject to the plaintiff's easement.
It appears from the deed by which the plaintiff's predecessor in title acquired the property in question, that it was so acquired for railroad purposes; and it does not appear in this action that the land over which the proposed highway is to be carried is more in width than is required or may reasonably be required by the plaintiff for its right of way.
The plaintiff should have, as a part of the judgment herein, an adjudication that its easement in such land for right of way extends over the whole width thereof.
It is claimed by the plaintiff that because the defendant failed to open and work Delavan avenue across the strip of land described in the complaint within six years from the time it acquired title by virtue of the proceeding in 1867, such strip of land has ceased to be a highway, and the municipality, has lost all right, title or interest in such land.
Section 234 of the Highway Law and the statutes from which it is derived, and of which it is a substantitl re-enactment, is not applicable in this case, because the defendant obtained the fee of such strip of land subject to the plaintiff's easement as stated. (Vanderbeck v. City of Rochester, 46 Hun, 87; Matterof Lexington Avenue, 29 Hun, 303; affd., 92 N.Y. 629; Woodruff v. Paddock, 56 Hun, 288; Raynor v. Syracuse University,35 Misc. Rep. 83, 92.)
The period of six years mentioned in the statute is a limitation upon the life of an unused easement. When an easement is acquired by purchase or otherwise, by which a street can be opened and worked across a piece of land, such land *Page 120 does not thereby become a street in fact for public use until it is opened, and it is such an easement, consisting of a right to open and work a highway, which is deemed abandoned if not exercised within six years.
Where the title is taken in fee, although for the purposes of a highway, there is no limitation upon the municipality's ownership of the land. After the fee of the land over which a highway is to be opened is obtained, if the municipality decides that the public interest does not require that the lands be immediately opened as a public highway, and it consequently delays opening the same, it does not thereby either lose the title to the land or its right to open the same to public use. When the municipality decides to open the same to the use of the public, its construction across the roadway, of a railroad corporation, must conform to the determination of the public service commission. (Section 61, Railroad Law.)
The discussion by the Appellate Division of the question as to the necessity of applying to the public service commission to determine whether Delavan avenue if constructed across the lands in question shall be carried over the same at grade or otherwise, is convincing, and it is unnecessary to add to it at this time.
The judgment should be modified so as to include an adjudication that the plaintiff's easement for a railroad right of way in that part of the lands purchased by its predecessor in title, on June 23, 1853, which were taken by the defendant for the purpose of extending Delavan avenue in 1867 extends to the entire width thereof and as so amended it should be affirmed, without costs in this court.
CULLEN, Ch. J., VANN, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur.
Judgment accordingly. *Page 121