only from plaintiff's land, but from defendants' adjoining land; the right to connect the Marvin shaft with the adjoining land; the right to permit water to flow to Marvin shaft from adjoining lands of defendants, and pump it out into the river; the right to pile culm from mining coal on adjoining lands on surface of plaintiff's land. The alleged excessive capacity of the Marvin shaft and structures set up in the case at bar is based on the proposition that the right of defendants to mine coal on adjoining lands is not conferred by the contract. This issue is not only disposed of by the former action, but the provisions of the contract, already quoted in full, bearing on this point, very clearly establish, in express terms, the right of defendants to mine their coal on adjoining lands through the Marvin shaft.

It remains to consider any further questions of law properly before the court. The finding that the defendants had not been careless or negligent in the conduct of mining operations within the plaintiff's lands, but, on the contrary, have conducted such operations with ordinary and reasonable care and skill, is of great significance. The issue here disposed of was presented in a former action to this court, on demurrer to the complaint, in 136 N. Y. 593, 32 N. E. 1078, 19 L. R. A. 127. The special term overruled the demurrer, the general term reversed, and this court, in reversing the latter court, decided that, although there was no express stipulation in the contract against a negligent destruction of the mine, it was to be implied, and that plaintiff had a right of action on the implied promise. The complaint in the former action was thus sustained in January, 1893. That action was never tried, but in February, 1893, this action was begun, embracing the cause of action of negligent mining, among others. The final determination thereof in favor of defendants has a most important bearing on this case, as the failure of defendants to mine a large quantity of coal in plaintiff's lands during a certain period was due in great part to the cave-in of 1886, which necessitated a further development of mining facilities. The findings presumed to have been made in the present case in support of the short decision are ample to sustain the dismissal of the complaint on the merits, when considered in connection with the judgment record in evidence, pleaded as a bar to this action.

There are two questions of law which have been argued by appellant's counsel as having survived the unanimous decision of the appellate division. The first question arises under the third ground of decision already quoted, which is, in substance, that the various acts of defendants are authorized by the contract. The appellant insists that the construction of the contract is before the court as a question of law. If the former judgment of this court, and the facts found in the case before us, leave any questions

open as to the construction of the contract, they may be considered.

It is finally settled that there has been no careless or negligent mining by defendants; that defendants had the right to mine their own coal over the lands of plaintiff; that water may be conducted from defendants' land to the shaft on plaintiff's land, and from thence removed by pumps to the river; that defendants have conducted and are conducting their mining operations on the plaintiff's land and their own premises properly. This being the state of the record, and this court having held in 136 N. Y. 593, 32 N. E. 1078, 19 L. R. A. 127, as already pointed out, that the writing between the parties is an executory contract, there is little remaining to discuss. It is clear that the contract is not a revocable license, and can only be terminated by the plaintiff when the acts of the defendants amount to a complete repudiation thereof. Dubois v. Canal Co., 4 Wend. 285; Graves v. White, 87 N. Y. 463; Hubbell v. Insurance Co., 100 N. Y. 41, 2 N. E. 470; Freeth v. Burr, L. R. 9 C. P. 208; Iron Co. v. Naylor, 9 Q. B. Div. 648, affirmed in 9 App. Cas. 434; Johnstone v. Milling, 16 Q. B. Div. 460; Railroad Co. v. Richards, 152 Ill. 59, 38 N. E. 773, 30 L. R. A. 33. The amended complaint avers that since about May 1, 1888, the defendants wholly ceased to mine any coal whatever from plaintiff's lands, and thereby the said lands became exhausted of coal under the terms of the agreement. The third trial of this case was had in March, 1899, and it must be presumed from the state of the record that the trial court found that coal was mined on the plaintiff's lands by defendants up to the year 1899, and that royalties were paid by the defendants to the plaintiff up to the early part of 1899. It follows that the plaintiff has failed to bring herself within the rule which justified her in serving a notice on defendants terminating the contract, and in asking the court to ratify her action by its judgment.

The second question of law is raised by the exception to the fourth ground of decision, already quoted, which deals with the question of waiver. The trial judge, on the facts found, decided that the plaintiff had waived the right to terminate the contract, if for any reason it ever existed. At the second trial of this action the appellate division reversed the judgment in favor of plaintiff on the ground that the plaintiff had waived her right to terminate the contract, for reasons about to be considered. 28 App. Div. 328, 51 N. Y. Supp. 377. The trial court in the case at bar found that the plaintiff, "with full knowledge of the acts claimed to constitute careless or negligent mining, and with full knowledge of the manner in which defendant has conducted and is conducting its mining operations, and of the use it was and is making of plaintiff's lands, has treated the contract as in force,

by accepting royalties accruing thereunder, and by bringing actions against the defendants in affirmance thereof," etc. The facts thus found, under the unanimous decision of affirmance, are conclusive upon this court. It only remains to consider whether such acts are a waiver of the plaintiff's right to terminate the contract, if such right ever existed. It would seem to require no argument to establish the proposition that the acceptance of royalties under the contract, and the bringing of actions in affirmance thereof, are clearly a waiver of the right to terminate it for any cause then existing. It is a familiar principle that, when it becomes necessary to elect between inconsistent rights and remedies, the election, when made, is final. Terry v. Munger, 121 N. Y. 161, 24 N. E. 272, 8 L. R. A. 216, 18 Am. St. Rep. 803; Pryor v. Foster, 130 N. Y. 171, 29 N. E. 123; Conrow v. Little, 115 N. Y. 387, 22 N. E. 346, 5 L. R. A. 693. It is a rule founded on common sense and common justice that a party ought not to accept benefits under a contract, and at the same time challenge its validity. In City of Buffalo v. Balcom, 134 N. Y. 532, 32 N. E. 7, it was held that one who had the full benefit of a contract with a municipality, which is ultra vires, will not be permitted, in an action upon it, to question its validity. See, also, Whitney Arms Co. v. Barlow, 63 N. Y. 62, 20 Am. Rep. 504; Raft Co. v. Roach, 97 N. Y. 378; Starin v. Edson, 112 N. Y. 206, 19 N. E. 670; Mayor, etc., v. Sonneborn, 113 N. Y. 423, 21 N. E. 121; Mayor, etc., v. Huntington, 114 N. Y. 631, 21 N. E. 998; Railroad Co. v. Proctor, 29 Vt. 93; Davis v. Railroad Co., 131 Mass. 258, 41 Am. Rep. 221. The general principle of waiver and estoppel is considered in the following cases: Sherman v. McKeon, 38 N. Y. 266; Townsend v. Scholey, 42 N. Y. 18; Maynard v. Anderson, 54 N. Y. 641. The plaintiff, under the facts found, waived the right to terminate the contract, if such a right ever existed.

As

Our attention is called to the form of the receipt which plaintiff gave to defendants on receiving royalties. The receipt is in the usual form, with these words added, "without waiver or prejudice." As there is no finding as to the form of these receipts, and the manner in which they were given or accepted, this question is not before us. suming that it is here, I am of opinion that the receipt in no way qualifies the acceptance of royalties by plaintiff. A receipt is not a contract, but a mere declaration or admission in writing; but, if a contract is embodied therein, it would receive, to that extent, judicial recognition. Ryan v. Ward, 48 N. Y. 204, 208, 8 Am. Rep. 539. We have here the naked statement, "without waiver or prejudice." The language of Van Brunt, P. J., when this case was before the appellate division on a former trial, is apposite: "It is true that, in the receipt for the royalties and minimum rents given by the plain

tiff for this series of years, the money is said to be received without waiver or prejudice. Without waiver of what, or without prejudice to what, is not stated; and there is no evidence tending to show that the defendant, upon the payment of the money, agreed that it might be received without the ordinary incidents attending receipt." 28 App. Div. 328, 51 N. Y. Supp. 377.

I have examined the other exceptions, but find none presenting reversible error or requiring discussion.

This opinion was written on the assumption that it expressed the views of a majority of the court, which proved to be erroneous. It is now published, with the approval of the court, notwithstanding its length, as containing a detailed statement of the facts and history of the cause.

The questions arising under this contract, which is now nearly 40 years old, are, as was said by this court in 136 N. Y. 593, 32 N. E. 1078, 19 L. R. A. 127, "difficult and important," but it would seem as if 20 years of litigation must have settled some of them.

The judgment appealed from should be affirmed, with costs.

GRAY, MARTIN, and CULLEN, JJ., concur with PARKER, C. J. VANN and WERNER, JJ., concur with BARTLETT, J.

Judgment reversed, etc.

(170 N. Y. 298)

PECK et al v. SCHENECTADY RY. CO. (Court of Appeals of New York. April 1, 1902.)

ELECTRIC STREET RAILWAYS

ABUTTING OWNERS-COMPENSATION-ADDITIONAL BURDEN-INJUNCTION -EMINENT DOMAIN APPEAL-REVIEW.

1. The use of a city street for a surface railroad operated by electricity is an additional burden on the property rights of the owners of the fee, subject to the easement of the highway.

2. The question whether an injunction restraining the construction of an electric street railway on a street, the fee of which is in abutting owners, shall restrict the construction of the railway until the payment of compensation, and denying a perpetual injunction if such damages are paid, or whether the injunction shall be made perpetual, leaving the railway company to its proceedings to condemn, is in the discretion of the court; and an order of the special term granting a perpetual injunction, affirmed by the appellate division, is not reviewable, as a question of law. by the court of appeals.

The

3. The trial court granted an injunction perpetually restraining an electric street railway from constructing its road on a street the fee of which was in the abutting owners. judgment was affirmed by the appellate division. Held, that the court of appeals could modify such judgment so as to provide that it should not prevent the railway company from bringing condemnation proceedings, and that if the rights of the abutting owners were acquired, and compensation paid, it should not be prevented from entering on the premises for operating its road.

Parker, C. J., and Werner, J., dissenting.

Appeal from supreme court, appellate division. Third department.

Action by Katherine K. Peck and others against the Schenectady Railway Company. Certain street railroad companies intervened. From a judgment of the appellate division (73 N. Y. Supp. 794) affirming a judgment for plaintiffs, defendant appeals. Affirmed.

Marcus T. Hun, James A. Van Voast, Learned Hand, and James O. Carr, for appellant. William F. Sheehan, Charles A. Collin, and John L. Wells, for interveners. Edward Winslow Paige, for respondents.

MARTIN, J. The purpose of this action was to enjoin the defendant from building an electric railroad upon Washington avenue, in the city of Schenectady, N. Y., in front of the plaintiffs' premises, and upon land of which they were the owners, subject to a public easement for street purposes. That the plaintiffs were the owners in fee of the portion of Washington avenue described in the complaint, and that the defendant, without the consent, and obviously against the protest, of the plaintiffs, threatened and intended to construct and operate an electric railroad upon tracks laid upon the surface of that street, and to supply power therefor by the erection of poles and wires to conduct the electricity necessary for the operation of its road from its power house to and along such street, was, in effect, found by the trial judge, and unanimously affirmed by the appellate division. Therefore, in determining this appeal, those facts must be regarded as conclusively established.

The primary and the most important question involved upon this appeal is whether the use of a city street for the purposes of a street surface railroad operated by electric power imposes an added burden upon the property rights of the owners of the fee, subject to the public easement for street purposes. If this were an open question in this state, much could be said to sustain the contention of the appellant that the acquisition of the use, from the owner, of the land for a public street, includes the right to apply it to all the beneficial public uses for which it may be adapted, not only at the time of its acquisition, but such as may arise in future. It is strenuously claimed that an electric surface street railroad in a city, as constructed and operated at the present time, in its use by, and by reason of its necessity to, the people of the municipality, constitutes an essential feature not only of public use, but of street use, and that such means of transportation have largely superseded the former use of streets, and are now the methods by which a great portion of the people are transported, and, hence, as the street was originally established for the accommodation of the traveling public, the change in methods of transportation does not

constitute a new servitude, but only a new and necessary method of accomplishing the purpose for which the street was originally intended, and does not entitle the owners of the fee to additional compensation. This contention is not without force, and there are not a few authorities in other jurisdictions which sustain it. In this state, however, the clear weight of authority is adverse to that contention. Craig v. Railroad Co., 39 N. Y. 404, is an important and leading case upon the subject. The plaintiff in that action was the owner of a lot on East avenue, in the city of Rochester, extending to the center of the street. The defendant asserted the right to construct a horse railroad therein without obtaining the plaintiff's consent, or instituting proceedings to acquire the right to construct it across his premises. The trial court granted a perpetual injunction restraining the railroad company from building its road over the portion of the street of which the plaintiff owned the fee. The defendant appealed from the decision of the trial court to the general term, where the judgment was affirmed, and then appealed to the court of appeals, where the decisions below were also sustained. There, as here, it was claimed that the defendant possessed the right to construct its railroad through the streets of a city, by virtue of the consent of the common council, without making compensation for damages to the owners of lots along the street over which the railroad passed. It was there urged that the building of such a road was not an infringement upon the rights, or any injury to the interests, of the owner in fee of the land in the street, as it was only a mode of exercising the public right of passage with which he had parted, and not such an additional or further appropriation as entitled him to pecuniary remuneration. This court decided adversely to that claim, and held that establishing and running a horse railroad in a public street of a city was an imposition of an additional burden upon the land of an adjoining proprietor covered by such street, and that the latter could maintain a suit to perpetually enjoin the railroad company from laying down its track and from running its cars over the street. The same doctrine as to running steam cars upon a street or highway had been previously held in several cases (Trustees of Presbyterian Soc. in Waterloo v. Auburn & R. R. Co., 3 Hill, 567; Williams v. Railroad Co., 16 N. Y. 97, 69 Am. Dec. 651; Davis v. Mayor, etc., 14 N. Y. 506, 67 Am. Dec. 186; Mahon v. Railroad Co., 24 N. Y. 658; Carpenter v. Railroad Co., 24 N. Y. C55; Wager v. Railroad Co., 25 N. Y. 526), -a doctrine which has since been so firmly established that it is not even controverted by the defendant (Henderson v. Railroad Co., 78 N. Y. 423; Uline v. Railroad Co., 101 N. Y. 98, 107, 4 N. E. 536, 54 Am. Rep. 661;

McGean v. Railroad Co., 133 N. Y. 9, 15, 30 N. E. 647; Coatsworth v. Railroad Co., 156 N. Y. 451, 457, 51 N. E. 301).

In the Craig Case the appellant insisted that there was a distinction between a railroad operated in the streets of a populous city by steam and one operated by horse power, and that the rule laid down in the former cases was inapplicable to the latter class of roads. This court, after examining the question, while conceding that there was a difference between a steam road and a horse railway, in the manner in which the road was constructed and the speed with which the cars were propelled, said, "But there is precisely the same exclusive appropriation of the track for the purposes intended in each case, to the absolute exclusion of all who may interfere with its mode of operation," and distinctly held that the building and operation of a horse railroad in the public streets of a city imposed an additional burden upon the land of an adjoining proprietor covered by a street, and that such a proprietor could maintain a suit to perpetually enjoin a horse railroad company from laying down its track in the street, and from running its cars over it. While the appellant contends that the Craig Case does not decide that the construction of a street surface railroad operated by horse power entitles the owner of the fee of the street to compensation or to the relief awarded in the case at bar, we think otherwise. Since the decision in the Craig Case, it has been regarded as an authority holding that doctrine, and has been followed with great unanimity by our courts. In Gaslight Co. v. Calkins, 62 N. Y. 386, 388, the question of the right of an owner of the fee of land in streets was again quite fully discussed, and it was there said: "The introduction of railroads in this state presented the question whether a railroad corporation could use a public highway for the purpose of constructing and running its road, and it was held that it imposed an additional burden upon the soil of the highway, besides what was included in the public easement; that the legislature had not the power to make such imposition, within the meaning of the constitutional provision which forbids the taking of property of the owner of the fee without compensation; and that the company can derive no title by any act of the legislature, or of any municipal authority, without the consent of the owner of the fee, or without the appraisal and payment of damages in the mode prescribed by law. Fletcher v. Railroad Co., 25 Wend. 463; Trustees of Presbyterian Soc. in Waterloo v. AuburL & R. R. Co., 3 Hill, 567; Davis v. Mayor, etc., 14 N. Y. 506, 67 Am. Dec. 186; Williams v. Railroad Co., 16 N. Y. 97, 69 Am. Dec. 651; Wager v. Railroad Co., 25 N. Y. 526. These cases settle the law, beyond peradventure, as to the right of railroad corporations to appropriate public highways to

At a

their benefit without compensation. later day an attempted distinction was sought to be made in favor of horse railroads in cities, and the question as to the right of these corporations to use the streets of cities for their roads and cars was presented in Craig v. Railroad Co., 39 N. Y. 404; and it was there.decided, after full consideration by the court of appeals, that the running and establishing of such a road in the public streets of a city was an imposition of an additional burden on the land of the adjoining proprietor, for which compensation must be made." In Fobes v. Railroad Co., 121 N. Y. 505, 515, 24 N. E. 921, 8 L. R. A. 453, this general question was discussed by Judge Peckham, who said that, under the decisions of the courts of this state, "to construct even a horse railroad in a city street is to place a new and additional burden upon the land, the right to do which does not exist by reason of the general right of passage through the street; but if the adjoining owner of land is not the owner of the fee in the street, and the railroad company has obtained the proper authority, he has no right to compensation for such added burden, nor to complain of such use so long as it is not exclusive or excessive. The same reasoning applies, as we have seen, in the case of a steam surface railroad. Such a use of the streets would be an additional burden upon the land; and, of course, if the adjoining owner had title in fee to the center of the street, subject only to the public easement, he would have a right of action, as held by the Williams and other cases." The doctrine of the Craig Case was again recognized by this court in Reining v. Railway Co., 128 N. Y. 157, 163, 28 N. E. 642, 14 L. R. A. 133, where Judge Andrews, upon reviewing the cases, said: "These latter cases, as will be observed, decide that neither a horse nor steam railroad can be authorized in streets, the fee of which is in the adjacent owner, without his consent, while the former cases hold that, where the fee is in the municipality, horse railroads may be authorized against the will of the abutting owner, and without making compensation. The distinction is made to rest on the location of the fee." In Eels v. Telegraph Co., 143 N. Y. 133, 38 N. E. 202, 25 L. R. A. 640, this court held that the state can neither appropriate to its own exclusive use, nor can it authorize a corporation to so appropriate, any portion of a rural public highway, by setting poles therein for the purpose of supporting telegraph or telephone wires; and in that case the authority of the Craig Case was again recognized, and its principle applied. Palmer v. Electric Co., 158 N. Y. 231, 235, 52 N. E. 1092, 43 L. R. A. 672, also recognizes the principle that the general purposes of a highway or street do not include the transportation of persons or property by railroads over them. The Craig Case has also been followed in Thayer v. Rail

road Co., 15 Abb. N. C. 52; In re Gilbert El. R. Co., 38 Hun, 438, 447; Spofford v. Railroad Co., 15 Daly, 162, 165, 4 N. Y. Supp. 388; Edridge v. Railroad Co., 54 Hun, 194, 195, 7 N. Y. Supp. 439; In re Rochester Electric Ry. Co., 57 Hun, 56, 60, 10 N. Y. Supp. 379; In re The Terrace (Super. Buff.) 15 N. Y. Supp. 775; McCruden v. Railway Co., 5 Misc. Rep. 59, 61, 62, 25 N. Y. Supp. 114, affirmed in 77 Hun, 609, 28 N. Y. Supp. 1135, and 151 N. Y. 623, 45 N. E. 1133; Clark v. Traction Co., 10 App. Div. 354, 41 N. Y. Supp. 1109, followed in 16 App. Div. 631, 44 N. Y. Supp. 1113; Mangam v. Village of Sing Sing, 11 App. Div. 212, 216, 42 N. Y. Supp. 950; Syracuse Solar Salt Co. v. Rome, W. & O. R. Co., 67 Hun, 153, 161, 22 N. Y. Supp. 321.

The doctrine of the Craig Case has now become a rule of property, which this court cannot, in justice, overthrow. Although that case was decided by a divided court, yet it is obvious that the principle there stated has since been generally, if not universally, recognized as the law of this state, and been followed with great uniformity by its courts, as will be seen by reference to the cases to which we have already referred. Therefore, notwithstanding the fact that many jurisdictions have held a contrary doctrine, still a principle which has been so thoroughly ingrafted upon the law of our own jurisprudence should not be lightly disregarded. We are of the opinion that the contention of the appellant in this respect cannot and ought not to be upheld. The doctrine that a horse railroad invades the property rights of the owner of the fee in a public street, and imposes upon him a burden for which he is entitled to compensation, being firmly established, it obviously follows that the building and operation of an electric road must be controlled by the same principle. Assuming, as we must, in view of these authorities, that the defendant's entry upon the plaintiffs' property in the street would constitute a trespass upon their property rights, it follows that the judgment appealed from must be affirmed.

The defendant, however, insists that, if the proposed construction and operation of its railway would be an additional burden upon the plaintiffs' land, yet the only relief to which they are entitled is to compensation for the damages which they may thereby sustain, and therefore, as they have invoked the equitable powers of the court, it should compel them to accept just compensation as an alternative to the injunction. We think this court has no power to deal with that question. If it be conceded that the defendant has the right to exercise the power of eminent domain, and to condemn the plaintiffs' interest in the street by proceedings instituted for that purpose, and also that the trial court or appellate division had authority to render such alternative relief, still, as the power or discretion existed in the trial court to award the latter, or

relegate the defendant to the former, whichever it should deem more proper, its adoption of the former, by omitting to render the alternative relief now sought, presents no question of law which this court can review. Although the courts of this state have often, in cases somewhat similar, awarded the defendant the alternative relief of paying an ascertained compensation as damages, and denying a perpetual injunction if such damages were paid, when it was clear that the right of condemnation existed in the defendant, still we think the question whether a court of original jurisdiction shall award to a defendant such alternative relief, or leave it to its proceedings to condemn, is one resting in the sound discretion of the trial court,-a discretion which may be reviewed by the appellate division, but which presents no question of law reviewable by this court, especially if there be a dispute or doubt as to the legal right of the defendant to acquire the title sought by condemnation proceedings. Henderson V. Railroad Co., 78 N. Y. 423; Pappenheim v. Railway Co., 128 N. Y. 436, 28 N. E. 518, 13 L. R. A. 401, 26 Am. St. Rep. 486. If the defendant had no legal right to acquire the property of the plaintiffs, a court of equity would not be required to grant to the defendant a right to which it was not legally entitled. If such is the case, obviously it cannot be held that the court below committed a legal error in not requiring the plaintiffs to transfer their property to the defendant, to which it had no legal right, and to which it could legally acquire no title by condemnation. Under the circumstances, we think the trial court was justified, in the exercise of a sound discretion, in leaving the parties to pursue such legal remedies as were necessary to enforce their respective rights, and was not required to decide in this action any disputed question as to the defendant's right of condemnation.

The judgment which was entered upon the decision of the trial court, and affirmed by the appellate division, provided that "the defendant, its agents and servants, be, and they are, perpetually enjoined from operating a railroad upon any of the said part of Washington avenue, and from doing any act tending thereto and thereabout, and from suffering any such act to be done in its or their name or behalf." It was evidently claimed at the appellate division that the provisions of this injunction were too broad, and would, in effect, restrain the defendant from an entry upon the plaintiffs' land, even after a right to do so was acquired by condemnation. That court was satisfied that the judgment would have no such effect, and that, if so, it might be amended by application to that court. While we are disposed to think that the judgment would not have the effect claimed, still it may well be modified by providing that it shall not interfere with or restrain the defendant from