Statement of the Case. give this right is not questioned, nor is it questioned that whatsoever is necessary to the practical enjoyment of this right has been impliedly and competently granted by the legislature. Between the trips to and from, the engines must remain for a time upon some place off from the tracks used for running, and should be under covering. An engine-house, or something of its kind, is therefore a necessary incident in the use of the franchise. The only objection made at this point by the learned counsel for the plaintiff is, that the implied authority to use an engine-house is not general, or at any convenient place to be chosen, even carefully, by the defendant, but it is confined by the terms of the act, properly construed, to the engine-houses and equivalent provisions of the Harlem road or its successors in right. The argument is, that the right to run being confined to running over the road of the Harlem Railroad Company, and as far into the city as the Harlem road may extend, the incidents of that right are meant to be confined to the use of such appurtenant structures or conveniences, as the Harlem road employs for the purpose of aiding its running. I do not understand that the plaintiff's counsel claim that the defendant's engine-house is an unlawful structure, because, as they insist, the defendant has not legal capacity to acquire title to the land on which it stands; but the claim is that the want of that capacity and the fact that the engine-house and its land are not owned by the Harlem Railroad, show that the defendant is not exercising the incidental right intended by the act. I do not think that the legal capacity of the defendant to take title to the land on which the engine-house stands is in question. All would agree that it has the right to use real estate to the extent that is necessary while the engines are waiting and getting ready to return. The question Statement of the Case. is, must the real estate on which the engines are to stand belong to the Harlem Railroad, or must the shelter or engine-house be such as the Harlem road previously used for the purpose. If it may be other real estate, then the value of the title to it is immaterial in this action. The construction of the act must be reasonable and not strained. The literal meaning of the words is not decisive one way or the other. To run over the road of the Harlem company with engines and cars does not determine where the cars and engines are to be placed when they are not running. The nature of the subjectmatter of the right granted is most important. What is the relation of such an incidental thing in the case of the Harlem road, to its running its own cars and engines? The act was passed in light of the fact that it was the duty and right of the Harlem road to furnish for its engines, and business, houses and like structures sufficient for its own purposes. It could not have been supposed that, in looking at its own needs, it would accidentally do what would accommodate the defendants. Such an accommodation might happen, but it would not be usual, nor could it be foreseen that it would be continued. There is no indication that the act meant to make it an obligation on the part of the Harlem Railroad to furnish conveniences to the defendant, in a quantity and of an expense or economy suited to the condition of the defendant, and which should properly be regulated by its directors. On the other hand, the legislature did not mean to make the enjoyment of the right it gave to defendant conditioned upon the will and pleasure of the Harlem road, except so far as that is involved in its being necessary that there should be an agreement for the running. When the act was passed, there was an improbability that the engine-houses of the Harlem road would be roomy enough, or fitted in other points to shelter Appellant's Points. the defendant's engines. With this, too, is to be taken, that neither public policy nor the interest or comfort of private land-owners would be served by obliging the defendant to use the buildings of the Harlem road. The effects would be the same if the business was done in Harlem railroad property. If the engines of both companies were under one roof there would not be less smoke or dirt or gas. I am therefore of opinion that the act does not intend to confine the defendant to the use of such structures as the Harlem road had provided or would provide for its own business, nor to such structures as the Harlem road might voluntarily build for the purposes of defendant's business. Under these considerations the complaint should be dismissed with costs and no allowance. Lewis Johnston, attorney, and W. M. Ivins and John Reynolds, of counsel, for appellant, among other things, urged:-I. Since the decision at special term here appealed from, the general term of this court, in Caro . Metropolitan Elevated Railroad Company (46) Super. Ct. 138), has pronounced an opinion which is the direct contradiction in all respects of the judgment in the case at bar. II. A case very similar in its circumstances to the case at bar is Wesson v. Washburn Iron Company (95 Mass. 95 [1866]), in which the plaintiff succeeded. That the above case is correctly decided, see Campbell v. Seaman, 63 N. Y. 568; Mulligan v. Elias, 12 Abb. Pr. N. S. 259; Cleveland v. Citizens' Gas Light Co., 5 C. E. Green (N. J.) 201; Galbraith v. Oliver, 3 Pittsburg Reps. 78; Appeal of Penn'a Lead Co., 23 Alb. L. J. 209; Ross v. Butler, 19 N. J. Eq. 294; Tipping v. St. Helen's Smelting Co., 4 Best & Sm. 608; McKeon v. See, 51 N. Y. 300; Francis v. Schoellkopf, 53 Id. 152; Aldrich v. Howard, 8 R. I. 248. "The consideration is sometimes urged that the building of a railroad is a work of great public convenience Appellant's Points. and benefit. This may afford an excellent reason for taking the plaintiff's land in the constitutional manner, but not for taking it without compensation. If the work is one of great public benefit the public can afford to pay for it" (Eaton v. Railroad Company, 51 N. H. 518; citing GREEN, Chancellor, in Hinchman v. Paterson Co., 2 C. E. Green, 80). III. The injury here inflicted upon plaintiff's property is such as to amount to a taking of private property under the constitutional clause, and to require compensation from the injuring party (Cooley Const. Lim. [4 ed.] 680, et seq.). Also see following cases, in all of which, as we believe, there were these three elements, viz.: 1. An express statutory authority to do the injurious act in precisely the way in which it was done. 2. A public work. 3. No negligence, but due skill and care (Pumpelly v. Green Bay Co., 13 Wall. 166 [1871]; approved in Bertholf v. O'Reilly, 74 N. Y. 5, 16; and Arimond v. Green Bay Co., 31 Wis. 331, 334 [1872]; Eaton v. B. C. & M. R. R. Co., 51 N. H. 504 [1872]; approved in Grand Rapids Booming Co. v. Jarvis, 30 Mich. 321 [1874]; and Cooley Const. Lim. [4 ed.] 677; Harding v. Stamford Water Co., 41 Conn. 87 [1874]; Nevins v. City of Peoria, 41 Ill. 502 [1866]). Equally strong authorities are: Chicago R. R. Co. v. Hall, 99 Ill. 41 (1878); Tinsman v. R. R. Co., 26 N. J. L. 148; Hooker v. N. H. Co., 14 Conn. 146; Fletcher o. Auburn R. R., 25 Wend. 462; Gardner v. Village of Newburg, 2 Johns. Ch. 161; Trenton Co. v. Raff, 35 N. J. L. 335; Balt. R. R. Co. v. Reaney, 42 Md. 117 (1874); Delaplaine v. R. R. Co. 42 Wis. 214 (1877); Evansville R. R. Co. v. Dick, 9 Ind. 433; Stetson v. Faxon, 19 Pick. (Mass.) 158; Indianapolis R. R. Co. v. Smith, 52 Ind. 428 (1876); People v. Nearing, 27 N. Y. 306; Myers v. City of St. Louis, 14 Am. Law Review, 251 (1880); R. R. Co. v. Cumminsville, 14 Ohio St. 550; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 321 Appellant's Points. (1874); Matter of Townsend, 39 N. Y. 171; Wager v. Troy R. R. Co., 25 N. Y. 526. The sovereign State of New York, conducting a public improvement pursuant to an act of its legislature, and conducting such work carefully and skillfully, in strict accordance with said act, is under a legal liability to make good in damages the injury inflicted by it (from the necessities of the work) upon the private property of one of its citizens, where none of that property was literally taken (Coster v. Mayor of Albany, 43 N. Y. 399). Even where the injury is merely accidental, unforeseen and temporary, the public agent who causes it, in executing the legislative authority, must make compensation, irrespective of any negligence (Hay v. Cohoes Co., 2 N. Y. 159: Tremain v. Cohoes Co., 2 N. Y. 163; McAndrews v. Collerd, 42 N. J. L. 189 [March, 1880]; Drake v. R. R. Co., 7 Barb. et seq.; Mahon v. R. R. Co., 24 N. Y. 658). IV. Unfortunately, the idea was promulgated in some courts, and adopted by some excellent judges, thirty or forty years ago, that, where a public interest was at stake, it was the duty of a public-spirited judiciary to be generous, and not to allow the private property rights of a few obstinate individuals to obstruct or hinder the march of improvement. But a wiser theory of the true duty of a judge now prevails in almost every State, and certainly in New York, as the authorities above cited clearly show, and the earlier decisions looking the other way have been silently disregarded or squarely disapproved (see Widehamer v. People, 13 N. Y. 386, 387; Matter of Gilbert Elev. R. R. Co., 3 Abb. N. C. 449; see also language of WALWORTH, Chancellor, 18 Wend. 17; Guest v. City, 69 N. Y. 516, 517; see also, Nevins v. City of Peoria, 41 Ill. 5, 11). V. Any injury to the private property of a citizen, caused in the execution of a public work, requires that just compensation be made for it; pro |