In re the Prospect Park & Coney Island Railroad

BaiíNAiid, P. J.:

It was decided at the last term of this court, that the Prospect Park and Coney Island Railroad Company obtained no title to the lands as against the owners of the fee, by the legislative permission to lay down their railroad on Gravesend avenue.

Their application for the appointment of commissioners to assess the value of the lands is made for the purpose of making compensation to the owners. I think the case falls within that part of the statute which permits a railroad company to perfect a title found defective. The company claimed that the people took the fee of the lands in Gravesend avenue, not in direct terms but as a necessary consequence of the language used. They built their road under this supposition. It has been held otherwise. The direction of the law that the company shall attempt to buy by agreement, is sufficiently complied with. The company believe that the landowners’ interest is merely nominal and therefore they offer a merely nominal price therefor. The parties cannot agree and there is no other way but the appraisal of a commission.

The legislature have located the defendant’s road in this avenue. This dispenses with all necessity of notice and agreement with the commissioners of highways. I think no sufficient cause was shown why the court should not grant the order.

Affirmed, with ten dollars costs and dibsursements.

Present — BARNARD, P. J., and DyKMAN, J.; Gilbbkt, J., not sitting.

Order affirmed, with costs and disbursements.