The validity of the act of 1853 authorizing the laying out of streets and highways across the track of railroads, without compensation to the owners of such railroads, was affirmed inThe Albany and Northern Railroad Co. v. Brownell
(24 N.Y., 345), upon grounds entirely satisfactory to this court, and we concur in the construction of the act given in that case. The only debatable question is whether the track proposed to be crossed is such a track as is authorized by the act to be crossed without compensation. The "track" specified in the act may include one or more single tracks, but should, I think, be limited to the track used for public traffic, whether composed of one or more, including turn-outs and switches, or, in other words, what may fairly be regarded as the roadway. Grounds upon which tracks are laid for storing cars, or exclusively for making up trains, are not embraced in the term "track." The finding of fact is that the seven tracks proposed to be crossed are in "constant use for passing trains, and for switching off cars and making up trains." This finding does not relieve the premises from the operation of the statute. We cannot infer that these grounds were used substantially for storing cars. On the contrary, the import of the finding is, that although in constant use for passing trains, the tracks were also used for switching off cars and making up trains. This might be done at any point on the road where there is a turn-out or switch.
The finding is controlling upon this point, and the judgment must be affirmed.
All concur.
Judgment affirmed.
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