WILLIAMS, C. J. (after stating the facts). The circuit court found, as the plaintiffs allege in their petition: That they are the owners of improved farms, on which they reside, that front and abut for considerable distances on the public road in question, and that they own the fee of their lands to the center of the road. This road has long been used by them as their means of ingress and egress to and from their farms, and for all the purposes of a public highway. That "the said highway, upon the westerly side of which these plaintiffs' lands are located, is sixty feet wide from fence to fence. The width of the sidewalk between ditch and fence on each side is eight feet, and the width of the roadway as established is thirty-two feet. Upon each side of said roadway, and immediately adjacent thereto, is a ditch six feet wide, from two to three feet deep, the entire frontage of plaintiffs' land, except seventy-five feet in front of the house on the land of said John Hurst, and about forty feet in front of the blacksmith shop on said land, and except, also, about 125 feet in front of the house on Daniel Hutchinson's property, in all of which said places said ditch has been tiled and filled in; and upon the easterly side of said traveled roadbed, immediately next to the ditch, is a brick pavement eight feet wide. And upon the extreme westerly side and edge of said roadway defendant railway company purposes to construct a railway by laying ties, and placing thereon Trails, such as are ordinarily used by suburban railways, the nearest part of which shall not be nearer to the center of said roadway than eleven feet, in accordance with the terms of said franchise, and nineteen feet from the nearest edge of the brick pavement upon the extreme opposite side of the said traveled roadbed, and to maintain upon the westerly side of said highway poles for the carrying of trolley wires, feed wires, and wires for the carrying of electric power to be sold to parties desiring electric light, heating, 'or power, and to operate on said railway cars propelled by electricity, and further to carry upon same passengers and freight." That the railway company, having presented to the board of county commissioners the written consent of the owners of more than half of the feet front of the lands abutting upon the public highway, but without the consent of any of the plaintiffs, obtained from that board the grant of a franchise to construct, lay, maintain, and operate for a period of twenty-five years, along and over this public highway, in all respects according to the plans and purposes of the railway company as hereinabove stated and set forth, “a single-track street railway, with all suitable convenient side tracks, switches, turnouts. turntables, stations, and appurtenances; also for the right to construct and maintain all necessary wires to connect its feed wires with adjacent prop

erty along the route therein petitioned for, necessary to supply light, heat, or power to such adjacent property, and all other things necessary to operate a street railway with electricity, or other approved motive power acceptable to the county commissioners. The right herein granted is, to operate a street railway for the transportation of passengers, baggage, packages, boxed and barreled freight, farm produce, express matter, and United States mail." The grant fixes a time within which the railway shall be commenced and completed, requires cars to be run over it "as often as three times each way daily," and contains some regulation relating to the fare. The board of commissioners reserved the right to grant similar franchises to other companies.

The court announced as its conclusion of law that upon this state of facts the plaintiffs were not entitled to the relief they sought, and rendered judgment accordingly. In that conclusion we are unable to concur. In our opinion, the construction and operation of the railroad, as authorized and proposed, must necessarily constitute a serious obstruction to the plaintiffs' use of the public highway as a means of access to their farms, and an additional burden on the highway, not contemplated in its originally intended uses. The whole burden of the railway, with all of its authorized appurtenan. ces, is thrown entirely upon the side of the public road next to the plaintiffs' lands, and between them and the traveled part of the roadway. The nature of that burden is not different in any material respect from that imposed by the construction and operation of a steam railroad. The difference, if any, is merely in the degree of the burden, and not in its character, and can scarcely be less in any degree. It may become more onerous and injurious. As shown by the findings of the court, the railroad is to be built and maintained on the "extreme westerly side and edge" of the traveled way of the public road (that is, between the traveled roadway and the plaintiffs' lands), and the tracks are to be laid with the ordinary T rails, which project some distance above the ties,--the same kind of rails usually employed in the construction of steam railroads through the country. While public crossings and extensions of farm lanes are required to be planked to a certain extent, it often becomes convenient and necessary to drive onto and off the traveled roadway, elsewhere, with loaded and empty vehicles, to which this railway will present the same obstructions, and cause the same hindrance, delay, and annoyance, that attend the crossing of steam railroads. Then this railroad company is authorized to construct and use, on the same side of the public road between its traveled way and the plaintiffs' lands, "all suitable and convenient side tracks, switches, turnouts, turntables, stations, and appliances," without limit to their

extent, other than as the company may deem them convenient and suitable. And in addition to this, the company is given authority to erect and maintain on the same side of the public roadway, and next to the plaintiffs' lands, all poles, which are of large dimensions, and all wires and other appli ances, necessary to enable it to operate an electric plant for supplying light, power, and heat to consumers, for profit. Besides, this company is authorized not only to carry passengers, but also to transport over the road "baggage, packages, boxed and barreled 'freight, farm produce, express matter, and United States mail"; and, though it is required to run cars over its road at least three times each way daily, it is not limited as to the number of cars or trains for freight or passengers, or both combined, or the size or make-up of the trains. All things considered, it is reasonably certain, from the facts found, that the practical operation of such a road, within its capacity, must necessarily produce annoyance and inconvenience to the plaintiffs, and interfere with their property rights as abutting owners, of the same general character that result from the operation of steam railroads, and become an additional burden on the public highway, and taking of the plaintiffs' property, in the same sense. The law governing the rights of parties in such cases is well settled in this state, and we need only to refer to the case of Railroad Co. v. Williams, 35 Ohio St. 168, for a clear and satisfactory statement of the law. It is there held that: "As between the public and the owner of land upon which a common highway is established, it is settled that the public has a right to improve and use the public highway in the manner and for the purposes contemplated at the time it was established. The right to improve includes the power to grade, bridge, gravel, or plank the road in such a manner as to make it most convenient and safe for use by the public for the purposes of travel and transportation in the customary manner, which is well understood to be by the locomotion of man or beast, and by vehicles drawn by animals, without fixed tracks or rails to which such vehicles are confined when in motion. These constitute the easement which the public acquires by appropriating land for the right of way for a highway, and these, in legal contemplation, are what the owner is to receive compensation for when his land is appropriated for this purpose. The fee of the land remains in the owner; he is taxed upon it; and, when the use or easement in the public ceases, it reverts to him free from incumbrance. In the exercise of the right of eminent domain, the state, through the general assembly, may delegate to a railroad corporation the power to appropriate a right of way for its road along and upon a public highway. But the appropriation for this purpose cannot be con

stitutionally made without making compensation to the public for the injury thereby occasioned to its easement in the highway, and also making compensation to the owner of private property taken for the use indicated. In such case the rights of the public and the rights of the owner are entirely distinct, and the consent, express or implied, of one to the appropriation, would not bind or affect the rights of the other. But we are not dealing with the public right. It has already been said that the plaintiff in the probate court was the owner in fee of the land covered by the highway. This was her private property, within the meaning of the constitution, subject only to the easement of the public therein. The nature and extent of this easement was above shown. The railroad company, by occupying the highway, constructing its track, and operating its trains thereon by steam motive power, completely diverted the highway from the uses and purposes for which it was established. This new use to which the highway has been diverted imposes burdens on the land that are entirely different from, and in addition to, those that were imposed by the highway. The right to so divert the use, and impose additional burdens on the land, could only be acquired by the corporation by agreement with the owner, or by appropriating and making compensation therefor in the mode prescribed by law."

We are aware that decisions in other states may be found which do not entirely agree with ours; but the Ohio rule above announced has been established for many years, going back to Crawford v. Village of Delaware, 7 Ohio St. 459, and has never been departed from. We are entirely satisfied with it. And it is obvious, also, that within this rule the construction and operation of an electric plant, with its appliances, in connection with such railway, and on the same side of the traveled public roadway, for supplying heat, power, and light to consumers for profit, constitutes another and additional burden, which is an invasion of the plaintiff's property rights. The relative rights of an owner of land, and of a private electric company which seeks to erect and maintain electric poles and wires in a public way on which such land abuts, without the owner's consent, or without the compensation guarantied to him by the constitution, were thoroughly considered in the case of Callen v. Light Co., 66 Ohio St. 166, 64 N. E. 141.

The right of the owner to injunction against the threatened invasion and subjection of his property rights for the benefit of the corporation in such case is so logically and satisfactorily maintained in the opinion of Spear, J., that the citation of other authorities is not deemed necessary. The case on that subject is equally decisive of this one.

It being ascertained that such an additional burden as has been stated will be imposed on this public highway and the plaintiffs'

abutting right and property, the extent of the burden and its effect on the value of the property, including the damages which the owners will sustain, are not questions for the determination of the court, but belong, under the constitution, to a jury, unless that mode of assessment is waived. Nor is it any objection to the relief sought in this case that the plaintiffs might have brought an action for damages. They are entitled to injunction against the threatened invasion of the property rights. That is the primary remedy, long established, and best adapted to the preservation of their rights. They are not required to wait until the threatened injury is done, and then undergo the vexations and expense of a protracted litigation, that in the end may afford but incomplete and inadequate relief. It was the primary duty of the railway company, before attempting to take from the plaintiffs property rights which the constitution guaranties to them, to institute in a proper tribunal the necessary appropriation proceedings, to obtain an assessment of compensation and damages to them. The company cannot interpose its violation of that duty as a defense to the plaintiffs' injunction.

Judgment reversed, and judgment for plaintiffs in error for an injunction against the construction and operation of either the said railroad or electric light plant; and, in case the defendants in error have commenced work on either, it is ordered and decreed that within 30 days from the entry of this decree they remove all material and obstructions placed in the public highway by them, and restore the said public highway to the condition it was in at the time and before the commencement of said work.

BURKET, SPEAR, DAVIS, and PRICE, JJ., concur.

(171 N. Y. 373)

PEOPLE ex rel. DADY v. COLER, City Comptroller.

(Court of Appeals of New York. June 10, 1902.)

MANDAMUS-PEREMPTORY WRIT-UNLIQUI

DATED CLAIMS.

Where a contractor, who had been fully paid for work done under a contract with the city, assigned his claim for extra work to relator, who applied for a peremptory writ of mandamus to enforce it, and many of the material allegations of the moving papers were denied by affidavits asserting that all the work for which payment was claimed had been fully paid for under the terms of the contract, and the claim had never been adjudged valid or audited, it was error to grant a peremptory writ, and the question whether relator should be allowed an alternative writ must be left to the sound discretion of the trial court.

Appeal from supreme court, appellate division, Second department.

Application by the people, on the relation of Michael J. Dady, for writ of mandamus to Bird S. Coler, comptroller of the city of New York. From an order of the appellate

division (75 N. Y. Supp. 37) reversing an order of the special term granting a motion for a peremptory writ of mandamus, plaintiff appeals. Dismissed.

Charles F. Brown and Charles W. Church, Jr., for appellant. George L. Rives, Corp. Counsel (James McKeen, of counsel), for respondent.

O'BRIEN, J. The relator is the assignee of a contract made by John Curran with certain commissioners for grading and improving Neptune avenue, in the town of Gravesend, dated February 26, 1893. This town was subsequently incorporated in the Greater City of New York, and, if anything is due upon this contract or for the work provided for therein or connected therewith, it is assumed to be a claim against that city. On the 23d of September, 1901, the court at special term, upon the relator's application, awarded a peremptory mandamus requiring the defendant, as comptroller of the city, to forthwith pay to the relator the sum of $15,185.03, with interest thereon from July 19, 1901, for work done upon said avenue not inIcluded in the contract. The amount stipulated in the contract for the work embraced therein has been fully paid to the contractor or his assignee, but the present claim is for extra work. The relator, in his application for the writ, stated in detail the grounds upon which his claim was founded, the amount thereof, and the circumstances under which the work was performed. The defendant resisted the application, and his counsel read upon the hearing an affidavit of the principal assistant engineer of the department of finance of the city, who had been assigned by the defendant to oversee the work, in which many of the material allegations contained in the moving papers were denied, and it contained affirmative statements substantially to the effect that all the work for which payment was claimed was fairly included within the contract, and had been fully paid for. But, notwithstanding this affidavit, which raised a direct issue concerning the merits of the claim and the obligation of the defendant to pay, the peremptory writ was allowed. The claim has never been adjudged to be a valid one against the city in any judicial proceeding, or audited, allowed, or liquidated by any competent authority, so as to create an obligation which could be enforced by a peremptory mandamus. The relator having been awarded a peremptory writ in the face of the opposing affidavits, all the allegations and denials in the opposing papers must now be taken to be true in the same way as if the relator had demurred to the answer. People v. Cromwell, 102 N. Y. 477, 7 N. E. 413; Smith v.. Supervisors, 148 N. Y. 187, 42 N. E. 592.

While the learned court below apparently reversed the order on the ground that the relator had not produced any certificate from any of the town officers mentioned in chapter 171 of the Laws of 1893, and which was

necessary under the act, yet, as these officers had ceased to exist under the present charter, and as their powers and duties properly devolved on the defendant, we are not sure that its point was a conclusive answer to the application. However that may be, we think there is a clear ground upon which the order of reversal must be upheld. If the work was embraced within the contract, then clearly the relator had no claim at all, since the contract price has been paid in full. If, on the other hand, it was outside of the contract, and authorized by some competent authority, the relator was entitled to recover only upon a quantum meruit. As the claim was in every legal sense disputed and unliquidated, the learned judge at special term erroneously allowed a peremptory mandamus requiring the defendant, as the financial officer of the city, to pay it. The most that the relator was entitled to was an alternative writ, under which the disputed question of fact could have been settled. The granting of the writ of mandamus, whether peremptory or alternative, generally involves the exercise of discretion. The court, in cases of this kind, has the undoubted right to refuse the writ in either form, and remand the party to an action. If, in this case, there was a clear obligation on the part of the city to pay the sum of money which the relator demanded, and nothing else was wanting except the certificate of the town officers named in the statute, whose offices have been abolished and their powers and duties transferred to the officers of the city, or to the defendant himself, we think the order could be sustained, since it might be construed as a direction to the defendant to audit and pay the claim. But the difficulty is that this is not only an unliquidated, but a disputed, claim, as it appears upon the record before us, and such a claim cannot be enforced by a peremptory writ of mandamus, but in some other way. People v. Board of Sup'rs of Greene Co., 64 N. Y. 600; People v. Wendell, 71 N. Y. 171; People v. New York Infant Asylum, 122 N. Y. 190, 25 N. E. 241, 10 L. R. A. 381. Under the circumstances of this case we do not think this court should modify the judgment by ordering an alternative writ to issue, if we now have that power, but that such course should be left to the sound discretion of the trial court, especially in view of the fact that the appellate division granted the relator the right to renew this motion in the court below, which he did not accept. The learned court below therefore properly reversed the order, and, while it proceeded upon a different view of the case than is herein indicated, yet the decision was correct.

The order appealed from must, therefore, be dismissed, with costs.

PARKER, C. J., and GRAY, BARTLETT, HAIGHT, CULLEN, and WERNER, JJ.,

concur.

Appeal dismissed.

(171 N. Y. 377)

MAGAR v. HAMMOND et al. (Court of Appeals of New York. June 10, 1902.)

CONTRIBUTORY NEGLIGENCE-INJURY TO

TRESPASSERS.

Defendant had established a fish preserve, and posted notices as prescribed by statute. To protect the fish from poachers, he employed a night watchman, who was in the habit of discharging firearms into the air to frighten off the poachers. Plaintiff, with knowledge of such facts, on a dark night entered the park for the purpose of poaching, and was injured by a bullet fired by the watchman in the direction of the noise made by plaintiff. Held error to refuse to charge, in an action to recover for the injuries, that, if the plaintiff knew the habit of the watchman, he could not recover, even if defendant or the watchman were negligent.

Appeal from supreme court, appellate division, Second department.

Action by Frank L. Magar against Stoddard Hammond and another. From a judgment of the appellate division (67 N. Y. Supp. 63) affirming a judgment for plaintiff, defendants appeal. Reversed.

Henry Bacon and George H. Carpenter, for appellants. Thomas Watts and William Vanamee, for respondent.

O'BRIEN, J. There is very little dispute with respect to the leading and important facts of this case, but the rule of law to be applied to the facts is not so clear. The defendant Hammond and his servant have been sued jointly in an action, based upon a personal injury that the plaintiff sustained resulting from the servant's negligence, as is claimed. The jury rendered a verdict for the plaintiff of $15,000, and the judgment has been unanimously affirmed below.

In the year 1893 Hammond purchased over 300 acres of wild forest land in Sullivan county. By damming up small streams or springs, and other operations, he created an artificial lake upon the property, of considerable dimensions. There was some low land, free from timber, which, it seems, furnished a natural bed for the lake, and it was surrounded by a dense growth of timber and bushes. Having created the lake, he proceeded to stock it with trout. It seems that it was impossible for the fish to get into the lake through the dams on the surrounding springs or streams, but the fish were propagated by artificial means; and it became an industry that produced some revenue to the owner, by selling the trout, and permitting people to fish there for a compensation. He also built a house, boat house, and hatchery for trout spawn, in which it is said 2,000,000 of the same were produced annually. He had to employ men to attend to the hatchery, and otherwise in and about the property, and to prevent vermin from destroying the eggs. He prepared and posted notices around the tract to warn off trespassers, as prescribed by the statutes of the state. The owner's co-defendant in this action was the night watch

man, whose business it was to be on the lake at night to protect the fish from poachers and wild animals that frequently came to the place to take the fish. The owner had two guns, one a shotgun, and the other a rifle. The watchman had been in the habit of carrying one or the other of the guns with him when on the lake in a boat for the purpose of killing muskrats, mink, and other animals about the lake. He sometimes fired into the air in order to frighten off poachers. On the 9th day of June, 1899, the plaintiff and two other young men went to the lake to take fish, and were there after 10 o'clock in the evening, the night being very dark. They did some fishing, and retired into the thick woods on the shore. It does not appear that the watchman had seen them or knew that they had been fishing, but the crackling of the brush in the woods indicated to him that some one was there, or at least the jury could have so found. There is no claim that the watchman knew that the plaintiff was in the woods, but there was some evidence tending to show that he knew, or should have known, that some human being was there, and the verdict affirms this proposition. The watchman had the rifle, and, on hearing the noise in the woods, fired at least three shots in the direction; and one of the bullets struck the plaintiff in the hip, inflicting a very serious, if not permanent, injury. The master was not present, and knew nothing of the transaction; but he did know that the guns were on the premises, and that the watchman was accustomed to use them in the manner and for the purposes described, and, if he is responsible at all for the act of the servant, it must be implied from these facts.

There were several propositions decided by the learned trial judge at the close of the case, which, for all the purposes of this appeal, must be treated as the law of the case. He ruled that there was no question for the jury, and it could not be found, that the shooting was willful or malicious, and the only question was whether the watchman was negligent, and the owner responsible for such negligence. He instructed the jury that the plaintiff was guilty of a crime in going upon the defendant's premises to fish in the manner described, and that the defendant owed him no duty, except to refrain from intentionally doing him an unnecessary injury, or an injury through wanton or reckless negligence; that the owner gave no express authority to the watchman to shoot at any human being, but, on the contrary, ordered him not to shoot at any human being, and that there was no evidence that it was within the scope of his employment to so shoot; that there was no evidence in the case that either of the defendants intended or desired to injure any human being, or expected that the shooting would result in such injury. The theory upon which the case was submitted to the jury will clearly appear by the following passage from the charge: "Now the ques

man.

tion which I will leave to you in this case, gentlemen, is this, and I hope you will understand it: Did this man Tompkins, when he fired in the night and into the woods as he did, have reason to believe that there were human beings there, or did he in fact know they were there? Did he know when he fired into the words as he did that human beings were where he fired, or by the exercise of ordinary care could he have ascertained, from what has been described here as having happened, that human beings were there, and knowing they were there, or having the ability to find out by the exercise of ordinary care, did he, notwithstanding that, wantonly, recklessly, fire in the direction where these human beings were? That is the vital question in this case. Because, as I have stated, this defendant had a right to have a watchThe watchman had a right to have a gun. He had a right to have a rifle loaded with a bullet. He had a right to fire his gun in the night anywhere, and as often as he pleased, on his own land. But did Tompkins, when he fired on that occasion, know he was firing where there were human beings, or in the immediate proximity of where there were human beings, and knowing that, or being able to find it out by the exercise of ordinary care, did he still, recklessly and wantonly, discharge his bullet in the direction where these human beings were?" It will be seen that the learned judge excluded from the jury very important elements tending to support the plaintiff's case. Willfulness, malice, intention to injure, or desire or motive to do so, express authority from the owner, and perhaps other elements, were eliminated from the case. It is not very plain how the jury could, with all these elements excluded, have found that the shooting was wanton or reckless, assuming always that the watchman had the right to do all the things that the court held that he had; but it is quite likely that the form in which the case comes here precludes any discussion in this court upon that question.

The

There is, however, an exception in the case that we think is fatal to the judgment. defendants' counsel asked the court to instruct the jury that if the plaintiff knew that the watchman on the lake was in the habit of discharging a gun, and went there after receiving such information, he cannot recover, even if the defendants, or either of them, were negligent, and that if the plaintiff knew or had heard that the lake was generally protected by a watchman, who had and discharged a gun, there could be no recovery. The court refused to so charge, and the defendants' counsel excepted. This request embodied the general rule that, where the negligence or misconduct of the injured party is a contributing cause of the injury, he cannot recover, even though negligence could be imputed to the defendants. With all the elements to which reference has been made excluded from the case, the defendants were