Parker, P. J.:
The Long Lake Railroad Company filed its certificate of organization on April 11, 1895, and it proposes to build a railroad from Axton, in Franklin county, southerly along the Racquette river, a distance of about ten miles, to Long lake. It applied, under the provisions of section 59 of the Railroad Law, to the Board of [235]*235Railroad Commissioners for the certificate required by that section. The board refused to give the certificate, and, upon the maps and proceedings certified to this court, the company, under the provisions of such section, now asks from us an order directing that such certificate be issued. On the hearing before the commissioners the application was opposed by the New York Central and Hudson River Railroad Company; also by certain individuals organized for the purpose of protecting the State Forest Preserve. And such parties have also appeared by attorney and opposed the application now made to this court.
For the purposes of this case I will concede that the burden is upon the applicant to show us affirmatively that the Railroad Commissioners have erred in their refusal to grant the necessary certificate. And, further, I will concede that due weight should be given by us to that greater technical knowledge which they, rather than this court, are presumed to possess. And yet I cannot but think that in this case the board should have given the certificate desired.
Aside from the question whether the proposed road crossed lands owned by the State, there was but a single question presented to the board for its consideration. That was whether “ public convenience and necessity require the construction of said railroad as proposed in said articles of association.” As bearing upon that question, some facts appear in the case that are too plain for discussion. First, the entire community to be affected by the road is desirous that it be built. All seem to be of one accord that it would be a benefit to them, for no voice from that locality is raised against it. As bearing upon some objections that have been made to its construction, it is a significant fact that the Forest Commission, who have in charge the interest of the State in this domain, although notified of the hearing before the Railroad Commissioners, have no word to say against it. The principal objector is a railroad company which is at this very time operating a railroad through the very heart of the Adirondack forests. Next, it is apparent that there is no other road which can furnish the same advantages, or approximately the same advantages, to the community that this road would furnish. It competes with no other road, for there is none nearer to it than a distance of twenty-five miles through a wilderness, without highways, and through which there are no means of passing, [236]*236except by the natural streams and over difficult “ carries.” Into such a wilderness the road extends, and so desirous are the owners of the land over which it will pass, for its construction, that they stand ready to assist the company by donating to it the right of way.
It further appears that from Axton, the northern terminus of the road, the Racquette River Railroad Company is about to construct a road to Tupper lake, a distance of about ten miles, in a northwesterly direction, where it will connect with both the Adirondack and St. Lawrence railroad and the Northern Adirondack railroad. A company has been organized to build that road, and a certificate of its necessity has been granted to the company by the Board of Railroad Commissioners. Although it is intimated in the decision of the board that such road is not to be built, there is not a particle of evidence to that effect. For aught that appears, it is already in process of construction, and we should assume upon this hearing that it will be built as proposed in its articles of association.
Thus Axton, although but a hamlet, is a place of importance, inasmuch as it is the point where communication to points outside of the Adirondack wilderness begins. From this point the road in question extends to the northeastern end of Long lake, whence steamboat communication on that lake extends to the village of that name, and also the whole length of the lake, a distance of about twelve miles.
It is objected that the country through which this road passes is so sparsely settled and furnishes so little business that such a road is not necessary.
The evidence discloses that there are large lumber interests in that neighborhood; that on Long lake there are several hotels, much frequented in summer; that at Blue Mountain lake, about twelve miles further south, there are other hotels ; and in fact that all the country in that vicinity is a favorite summer resort; that now all the supplies for those engaged in lumbering, and for the hundreds, if not thousands, of summer boarders and visitors in that locality are taken in some forty miles by wagon haul from North Creek, a place in the southeastern corner of the Adirondack domain, at an expense of seventy-five cents per 100 pounds. If this road is constructed, such freights will come in from the north to Long lake all the way [237]*237by rail, and can be distributed to Blue Mountain lake, Racquette lake, Indian lake and divers other points of summer resort in that locality, at a much shorter haul and much less expense. So, also, the hundreds of tourists, who in the summer visit that locality, will be equally and in the same manner accommodated. Those who locate on Long lake can go all the way by rail or steamboat. Those who locate on the lakes adjoining will have so much less transfer through the woods to endure. There is an immense water power close to the line of this road, and large tracts of lumber extend on either side of it and of Long lake. Clearly, the opening of such a locality to a' market by rail is not only of immense advantage to such industries, but also the profits derived from that business are likely to prove a profitable source of income to the railroad company. Without going more into detail, it seems very clear to me that the interests of the public in that locality will be very greatly promoted by the construction of that road.
If the convenience and necessities of the public in that locality require the road, it plainly answers the requirements of the statute, unless some other public interests are prejudiced by it.
One of the objections urged against the road is that it proposes to cross lands belonging to the State. If this were so, I should consider it an insuperable objection. But, upon the evidence, it cannot be determined that such is the fact. The proof is by no means sufficient to enable us to adjudicate that the title to any part of the land over which the road passes is in the State, and, even if a doubt is raised upon that question, it would be unjust to deny this company the right to exercise their corporate franchises because of that doubt. Granting them the certificate they ask will not affect the title of the State, if it has any, nor prejudice its right to stop the construction of the road upon any land that belongs to it. And it is apparent from their decision that the Railroad Commissioners have not found such to be the fact, nor based their refusal on any such ground.
A further objection urged is that, by the building of the road, the lands in that locality will be greatly enhanced in value, and that it will, therefore, be more difficult and expensive for the State to purchase the same and add them to the “ State Park,” provided for by section 120 of chapter 332 of the Laws of 1893.
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Parker, P. J.:
The Long Lake Railroad Company filed its certificate of organization on April 11, 1895, and it proposes to build a railroad from Axton, in Franklin county, southerly along the Racquette river, a distance of about ten miles, to Long lake. It applied, under the provisions of section 59 of the Railroad Law, to the Board of [235]*235Railroad Commissioners for the certificate required by that section. The board refused to give the certificate, and, upon the maps and proceedings certified to this court, the company, under the provisions of such section, now asks from us an order directing that such certificate be issued. On the hearing before the commissioners the application was opposed by the New York Central and Hudson River Railroad Company; also by certain individuals organized for the purpose of protecting the State Forest Preserve. And such parties have also appeared by attorney and opposed the application now made to this court.
For the purposes of this case I will concede that the burden is upon the applicant to show us affirmatively that the Railroad Commissioners have erred in their refusal to grant the necessary certificate. And, further, I will concede that due weight should be given by us to that greater technical knowledge which they, rather than this court, are presumed to possess. And yet I cannot but think that in this case the board should have given the certificate desired.
Aside from the question whether the proposed road crossed lands owned by the State, there was but a single question presented to the board for its consideration. That was whether “ public convenience and necessity require the construction of said railroad as proposed in said articles of association.” As bearing upon that question, some facts appear in the case that are too plain for discussion. First, the entire community to be affected by the road is desirous that it be built. All seem to be of one accord that it would be a benefit to them, for no voice from that locality is raised against it. As bearing upon some objections that have been made to its construction, it is a significant fact that the Forest Commission, who have in charge the interest of the State in this domain, although notified of the hearing before the Railroad Commissioners, have no word to say against it. The principal objector is a railroad company which is at this very time operating a railroad through the very heart of the Adirondack forests. Next, it is apparent that there is no other road which can furnish the same advantages, or approximately the same advantages, to the community that this road would furnish. It competes with no other road, for there is none nearer to it than a distance of twenty-five miles through a wilderness, without highways, and through which there are no means of passing, [236]*236except by the natural streams and over difficult “ carries.” Into such a wilderness the road extends, and so desirous are the owners of the land over which it will pass, for its construction, that they stand ready to assist the company by donating to it the right of way.
It further appears that from Axton, the northern terminus of the road, the Racquette River Railroad Company is about to construct a road to Tupper lake, a distance of about ten miles, in a northwesterly direction, where it will connect with both the Adirondack and St. Lawrence railroad and the Northern Adirondack railroad. A company has been organized to build that road, and a certificate of its necessity has been granted to the company by the Board of Railroad Commissioners. Although it is intimated in the decision of the board that such road is not to be built, there is not a particle of evidence to that effect. For aught that appears, it is already in process of construction, and we should assume upon this hearing that it will be built as proposed in its articles of association.
Thus Axton, although but a hamlet, is a place of importance, inasmuch as it is the point where communication to points outside of the Adirondack wilderness begins. From this point the road in question extends to the northeastern end of Long lake, whence steamboat communication on that lake extends to the village of that name, and also the whole length of the lake, a distance of about twelve miles.
It is objected that the country through which this road passes is so sparsely settled and furnishes so little business that such a road is not necessary.
The evidence discloses that there are large lumber interests in that neighborhood; that on Long lake there are several hotels, much frequented in summer; that at Blue Mountain lake, about twelve miles further south, there are other hotels ; and in fact that all the country in that vicinity is a favorite summer resort; that now all the supplies for those engaged in lumbering, and for the hundreds, if not thousands, of summer boarders and visitors in that locality are taken in some forty miles by wagon haul from North Creek, a place in the southeastern corner of the Adirondack domain, at an expense of seventy-five cents per 100 pounds. If this road is constructed, such freights will come in from the north to Long lake all the way [237]*237by rail, and can be distributed to Blue Mountain lake, Racquette lake, Indian lake and divers other points of summer resort in that locality, at a much shorter haul and much less expense. So, also, the hundreds of tourists, who in the summer visit that locality, will be equally and in the same manner accommodated. Those who locate on Long lake can go all the way by rail or steamboat. Those who locate on the lakes adjoining will have so much less transfer through the woods to endure. There is an immense water power close to the line of this road, and large tracts of lumber extend on either side of it and of Long lake. Clearly, the opening of such a locality to a' market by rail is not only of immense advantage to such industries, but also the profits derived from that business are likely to prove a profitable source of income to the railroad company. Without going more into detail, it seems very clear to me that the interests of the public in that locality will be very greatly promoted by the construction of that road.
If the convenience and necessities of the public in that locality require the road, it plainly answers the requirements of the statute, unless some other public interests are prejudiced by it.
One of the objections urged against the road is that it proposes to cross lands belonging to the State. If this were so, I should consider it an insuperable objection. But, upon the evidence, it cannot be determined that such is the fact. The proof is by no means sufficient to enable us to adjudicate that the title to any part of the land over which the road passes is in the State, and, even if a doubt is raised upon that question, it would be unjust to deny this company the right to exercise their corporate franchises because of that doubt. Granting them the certificate they ask will not affect the title of the State, if it has any, nor prejudice its right to stop the construction of the road upon any land that belongs to it. And it is apparent from their decision that the Railroad Commissioners have not found such to be the fact, nor based their refusal on any such ground.
A further objection urged is that, by the building of the road, the lands in that locality will be greatly enhanced in value, and that it will, therefore, be more difficult and expensive for the State to purchase the same and add them to the “ State Park,” provided for by section 120 of chapter 332 of the Laws of 1893.
[238]*238I have no doubt that public interests require the preservation of the forests in the Adirondack domain, and the benefit of the scheme on the part of the State to purchase and preserve them can hardly be overestimated. But I am not willing to adojit the theory that, in order to do so at the cheapest possible figure, the officers of the State are called upon, either by direct or indirect action, to use their official powers to depreciate the market value of such lands. Undoubtedly it is to be regretted that the State did not long ago purchase these lands, but inasmuch as it has not, and others have done so, it is not unreasonable that they should now desire to utilize their property for all that it is worth. They are asking no other or greater privileges for the benefit of their property than the State has freely granted to all other localities; and for the State to refuse them, simply because it wishes itself to acquire their property, is but a method of confiscating the property of a few for the benefit of the many, and is utterly at variance with the theory of our Constitution as well as with the first principles of justice. In my judgment, the idea that the State can purchase these lands cheaper if this railroad is not built, is an element that should have no control in the decision of the question now before us. But the concession that it would enhance the value of such lands is strong evidence of its public convenience and necessity.
It is further objected that it is against the policy of the State to allow railroads to be built into the Adirondack forests. It is the policy of the State to procure title to all the lands it can in that region; to preserve the forests thereon, and to prevent other parties from running roads through lands so acquired. Beyond that I do not discover any legislation indicating an intent to exclude that locality from the benefits of railroad communication with the rest of the State. Nor can I discover that the proper preservation of the forests in that domain requires the total exclusion of an additional line of railroad through it. There has recently been constructed one line which enters at its southwestern edge and extends through to the northeastern corner; also a line which extends from the northwest down to the center of that region at or near Tupper lake. Such roads have proved to be a great convenience, not only to those living in the localities where they run, but to thousands, of other citizens, who annually seek that region for the benefits to their health, [239]*239or for the pleasure which it affords. The line of a railroad is such an insignificant strip through the immense area of forests that it practically detracts nothing from their beauty and is hardly an invasion of their solitude. These lines, however, add but little to the facility of access to the southeastern portion of the Adirondack region.
The line proposed stretches down into that section, and instead of extending too far, if it could be extended forty miles further to North Creek, and there connect with the railroad extending down the Hudson river, it would, in my judgment, be a great public convenience to hundreds of citizens who make their summer resort throughout the forests in that region.
I have carefully read the decision of the Board of Railroad Commissioners, and I am somewhat in doubt as to the real ground upon which they denied this application. Upon the only question before them, to wit, “ Whether the public necessity and convenience required the road,” they are quite indefinite. They say that the evidence upon that point is “far from strong,” “ is very slender,” but they do not say that in their judgment “ public necessity and convenience do not require the construction of the road.” The consideration which really controlled their decision seems to have been that the articles of association for the Racquette River Railroad Company, above mentioned, were filed at the same time with those of this applicant, and that the directors of both companies are the same, but that this apjjlicant did not apply for a certificate under section 59 until one had been granted to the other company. They say that had they known that it was the purpose to extend a railroad twenty miles instead of ten miles into this region they would not have granted the certificate to the Racquette River Company, and for this reason they deny the application of the second company. I gather from this that the real reason for denying this application is, not that it is unnecessary to the locality through which it extends, but that it penetrates too far into the forest, and is, therefore, not in harmony with “ the general policy of the State as to the preservation of the Adirondack domain.”
Concede.that that is a question to be considered by them, yet, as I have stated above, I cannot discover that the construction of a road twenty miles into this region would at all conflict with the general policy of the State. On the contrary, I think it would be [240]*240in entire harmony with its procedure in this respect. It has already allowed a railroad from the southwest to the northeast corner of that domain, and from the northwest down to Tupper lake, greatly to the advantage not only of the country itself, but also to that of very many citizens residing elsewhere; and it is but an invidious distinction to now deny equal facilities to those seeking to enter the southeastern portion of that domain. It is the destruction of the forest, and not facility of access to a few central points in that domain, that the policy of the State is seeking to prevent.
It is further objected that the promoters of this road are not acting in good faith, because they have organized two companies to build the road from Tupper lake to Long lake.
If they intend, by so doing, to charge extravagant rates, there are provisions of law which can control that; and that there are any other evils to be apprehended from the building of twenty miles of road by two companies, I am unable to discover. At all events, that fact is not at all controlling upon the question whether public convenience and necessity require the road.
None of the evils which the statute was designed to prevent are apparent in this case. There is no existing railroad company whose interests are to be unfairly affected by it, and no alluring but profitless investments are offered by it to the unwary citizen. It seems to be a plain case where the necessities and convenience of the public, in that locality, as well' as those of a large number of citizens, who annually in the summer time seek access to that vicinity, require the construction of the road, and where no other public interests proper to be considered in connection with that question, will be prejudiced thereby. In my judgment, the Railroad Commissioners erred in not granting the certificate asked for, and an order should be made by this court requiring them to do so.
Landon and Putnam, JJ., concurred; Herrick and Merwin, JJ., dissented.