Fourth Department, March, 1910. [Vol. 137. per month during her lifetime or until such time as the principal and interest of such trust fund is exhausted, and in case one of my sisters shall die before said estate is exhausted leaving issue her surviving, pay to them such forty dollars per month share and share alike." It seems to me that the result of the decision of a majority of the court as outlined in the prevailing opinion is to construe the will in question in such manner as to thwart the express intention of the testator in respect to the disposition of his property. I fail to find in the will any warrant for the proposition that the testator intended that in case either or any of his sisters died before their interest in the trust estate was exhausted, such interest should be regarded as the unbequeathed property of the testator. Unless there was such intention of the testator, and it can be sustained under the provisions of the statute, the disposition which he sought to make of his property under paragraph 4 of his will is void. As was said by Judge MARTIN in Herzog v. Title Guarantee & Trust Co. (177 N. Y. 86): "The intent to be discovered is not whether he intended to make a valid disposition of his estate, but what provisions he in fact intended to make. When that is found, it is for the court to determine whether such intended provisions are valid or otherwise." The duty of the court, as the learned judge further and appositely remarked, "is not to make a new will or codicil to carry out some supposed but undisclosed purpose. * * *The duty of the court is to interpret, not to construct." The appellant is in effect asking this court to make a new will for the testator and one entirely different from what he intended as expressed in the will which he purported to make. As before said, he gave his residuary estate to his executor as trustee to be paid out to his five sisters who survived him at the rate of forty dollars per month to each, and that upon the death of either, such executor or trustee should continue to pay such forty dollars per month to the children of such deceased sister share and share alike. There is no suggestion in the will of an intention on the part of the testator that in case of the death of one of such sisters, although leaving issue, the balance of her interest in such estate should go to the heirs of the testator as unbequeathed assets. All the provisions of the will relating to this question are included in one paragraph and App. Div.] Fourth Department, March, 1910. each is dependent upon the other. It is impossible, as it seems to me, to construe one independent of the other. If, as suggested in the opinion of brother KRUSE, the interest of any sister remaining after her death was not bequeathed or disposed of by such will, I consider that it would go into the residuary estate, provided the provision creating such residuary estate was valid, and, therefore, precisely the same difficulty would be presented. I understand the law to be that "A residuary gift of personal estate carries not only everything not in terms disposed of, but everything that in the event turns out to be not well disposed of. A presumption arises for the residuary legatee against every one except the particular legatee, for a testator is supposed to give his personalty away from the former only for the sake of the latter. It has been said that, to take a bequest of the residue out of the general rule, very special words are required, and accordingly a residuary bequest of property 'not specifically given,' following various specific and general legacies, will include lapsed specific legacies." (1 Jarman Wills [Big. 5th Am. ed.], 756.) I conclude that the disposition sought to be made of the testator's property under paragraph 4 of his will is void and that all of such property passed to his heirs and next of kin as unbequeathed assets, and, therefore, that the decree appealed from should be affirmed, with costs. ROBSON, J., Concurred. Decree modified in accordance with opinion of KRUSE, J., and as so modified, affirmed with costs to each of the parties or set of parties appearing by separate attorneys, payable out of the estate. Fourth Department, March, 1910. [Vol. 137. In the Matter of the Application of the GEORGE SWEET MANUFACTURING COMPANY V. JOHN VAN DER HOOF and Others, for Leave to Run a Railroad Switch upon a Certain Highway situated in the Town of North Dansville, Livingston County, New York. Fourth Department, March 9, 1910. Eminent domain — taking public highway for private use—construction of railroad switch for private use - application under Railroad Law, section 20-constitutional law. In a proceeding under section 20 of the Railroad Law the court will not appoint commissioners to pass upon the feasibility and propriety of constructing a railroad switch for the benefit of a manufacturing company upon a route not described in the petition or to substitute a new route not suggested therein. Private property cannot be taken by eminent domain for private use. Hence, a motion made under section 20 of the Railroad Law by a private manufacturing corporation for permission to construct a railroad switch upon a public highway for petitioner's private use will be denied where the plan includes the condemnation of lands belonging to private owners not included in the highway! as well as easements in the highway owned by the abutting owners by reason of the fact that they own the fee of the highway. The easement of an abutting owner in a public street is private property and cannot be condemned except for public use. Section 20 of the Railroad Law, in so far as it assumes to authorize the taking of private property for private use, is unconstitutional and void. No one can invade a public street or highway solely for his private use. The rule that those having authority over public highways may grant certain privileges to abutting owners although the exercise thereof interferes to some extent with the convenience of the traveling public is based on the theory that all abutting owners similarly situated also enjoy the privileges. APPLICATION by the George Sweet Manufacturing Company for leave to construct a switch on a public highway and take certain lands for that purpose. Fred W. Noyes, for the petitioner. Newton B. Gorham, for the defendants. MCLENNAN, P. J.: The material facts are not in dispute. The petitioner is a domestic manufacturing corporation, having its plant and principal place App. Div.] of business in the town of North Dansville, Livingston county, N. Y. Such plant is located on the southerly side of a highway in the town of North Dansville known as the "Hartınan Highway," which extends from the petitioner's plant westerly, crossing the tracks of the Dansville and Mt. Morris railroad at a point about a mile distant from such plant. Said highway is straight and practically level, is three rods wide, and extends through a farming community. The defendants own property upon either side of such highway, including the fee to the center thereof. The petitioner is engaged in manufacturing upon its plant, which consists of about ten acres and upon which have been erected extensive furnaces, shops, etc., heavy machinery and castings which are transported to various parts of the country, the initial carrier being the Dansville and Mt. Morris Railroad Company; and in the prosecution of its business it requires a large amount of raw material, coal, iron, etc., all of which must be shipped over such railroad. The amount of incoming and outgoing freight aggregates about a carload a day. It is alleged that it is essential to the successful conduct of petitioner's business at its present plant that it be permitted to build a switch on the highway in question connecting its plant with the tracks of the Dansville and Mt. Morris railroad, and that only in such way can it obtain proper shipping facilities. It is alleged that the construction of such a switch upon the center line of such highway will not impair its usefulness as a highway; that it is proposed to construct a driveway upon each side of such switch twelve feet in width, which will afford ample facilities for all having occasion to drive upon or use such highway. On the 18th day of November, 1909, the town board of North Dansville duly passed a resolution granting permission to the petitioner to construct the switch asked for upon the center line of such highway, upon condition, however, that it make a driveway on either side of the rails of such switch twelve feet in width. The petitioner, however, was not required to maintain such driveways after their construction. It is not suggested in the petition that the switch asked for is to be used for any purpose other than for the petitioner's private use and convenience. It is not pretended that any one of the public would be entitled to use the same for any purpose whatsoever, or that it Fourth Department, March, 1910. [Vol. 137. would convenience any one other than the petitioner and its allied company, the Power Specialty Company, in the slightest degree. It is not pretended that any other party, corporation, or person would have the right to use it for any purpose. Concededly, such switch, if constructed, will be the private property of the petitioner and will be operated by it solely for its private use and benefit. The petitioner asks by its petition that it be permitted to take a portion of the property belonging to the defendant Jerry Wall, which adjoins its plant, but is not included within the boundaries of the highway, in order to connect its plant with such highway and the switch which it asks to construct thereon. Such property is included in the description of the route set forth in the petition. It is now conceded, and was upon the oral argument, that such property cannot be acquired under section 20 of the Railroad Law or otherwise. The description of a route being thus concededly faulty, this court might properly deny the motion upon that ground. It is not competent for this court to appoint commissioners to pass upon the feasibility and propriety of constructing a switch upon a route not described in the petition, or to substitute a new route not suggested therein; certainly not except upon motion made for that purpose, even although it may appear that there is another feasible route by which the petitioner's plant could be connected with such highway and the switch which it asks to construct thereon. But independent of that consideration, we think the motion must be denied for the reason that the petitioner is seeking to acquire private property for private use and property which has been devoted to the public use in which the defendants have a private property right and easement. It is settled beyond controversy that the easement of an abutting owner in a public street is private property. (Story v. N. Y. Elevated Railroad Co., 90 N. Y. 122.) In the case of Abendroth v. Manhattan Railway Co. (122 N. Y. 1) it was held: "An owner of a lot adjoining a city street, although his title extends only to the side of the street and he has no interest therein save as abutting owner, has incorporeal private rights therein which are incident to his property, and which may be so impaired as to entitle him to damages. Such rights are private property within the provision of the State Constitution (Art. 1, § 6). * * *" |