Hatch, J.:
It cannot, I think, be doubted but that both statute and contract contemplated that the commissioners should exercise very broad powers in providing for the construction of the tunnel and in changing the detail of the plans after the same had been begun. In the exercise of power respecting changes the only limitation seems to be that departure should not be made from the general plan of construction. It logically follows, therefore, that whenever the commissioners, by reason of matters not contemplated when the contract was made, and the exigency of the situation, require -a change in method and manner of construction, they have the power to make such change, and the contractor is bound to observe and comply with the directions given concerning it. As motive power was in process of development when the contract was made, it was not definitely determined what power should be used. When this subject was settled, it was agreed that electricity was the only power practicable. The commissioners, when this conclusion was reached, [220]*220undoubtedly had the power to make such change as was necessary to conform the tunnel to meet the requirements of electricity as a motive power, and enlarge the same in order to make provision therefor. Consequently, the increased excavation, -which was found necessary for the walls of the tunnel in order to accommodate and apply the electric motive power to the best advantage, was clearly within the power of the commissioners to direct, and the work rendered necessary thereby became a part of the construction of the tunnel. Primarily, the construction of the tunnel was to furnish a place for a railroad. The whole purpose is to enable a railroad to be operated in this space, and when the space is excavated, it becomes a place in which to put the equipment of a railroad; and this embraces cars, rails, motive power and all else essential to the complete establishment of the same with the power which moves the trains over its tracks. The increased excavation, therefore, rendered necessary by the adoption of electricity as a motive power was clearly within the power of the commissioners to order the contractor to do, and when done it was properly chargeable to construction.
The vitrified ducts, which form a part of the solid wall of the tunnel, fall within the same category, and if the enlargement of the excavation be construction, the wall is also. I am quite ready to concede that within a strict definition and in a technical sense these ducts, or hollow vitrified brick, may be described as a conduit or way, and, therefore, within the words of the statute; but that is not the controlling consideration. The tunnel is that, and it is properly described as a conduit, or way, for the passage of cars, but because the cars run through it does not make it equipment. The real question is what are these vitrified ducts, within the meaning of the statute and the contract thereunder ? It is evident that the statute and the contract provide for two separate things, each one quite independent of the other in fact and in all the essential rights of property. The evident intention is to keep the two perfectly divisible. That part of the tunnel which is construction, the city is to furnish, pay for and own. That part which is equipment, the contractor is to furnish, pay for and own, subject, when provided, to a certain lien on the part of the city for its protection. The entire tunnel proper is regarded as a street, of which the city is the owner [221]*221in fee. The contractor cannot own any part of this structure, or have an interest therein, except to place therein a railroad, with the necessary power to operate it. His interest must, of necessity, be a severable, personal property interest in the equipment, which, if not paid for by the city at the expiration of the term of the lease, he may remove as his property. The language of the statute as to what constitutes equipment provides that it “ shall include all rolling stock, motors, boilers, engines, wires, ways, conduits and mechanisms, machinery, tools, implements and devices of every nature whatsoever used for the generation or transmission of motive power, and including all power-houses and all apparatus and all devices for signaling and ventilation.” (Laws of 1891, chap. 4, § 35, as amd. by Laws of 1896, chap. 729, and Laws of 1900, chap. 616.) Thus showing that the statute contemplated by this recital that the equipment in its essential characteristics should be personal property. So far as it speaks of real property, it is of such property as is independent of the tunnel, use of which is made for the generation and transmission of motive power to the tunnel proper. The property used for the generation of power to be supplied to the tunnel would not have been embraced within the term “ equipment ” had not the statute so named it. It is essentially real property, necessary for the operation of the railroad; and as it was essential in order to furnish motive power, the duty was devolved upon the contractor to furnish it, and upon that, the city was given a lien as well as upon the equipment used in the tunnel. The title to this property, whether real or personal, is in the contractor, and upon it the city is given a lien. It is incomprehensible that the city can have a fee in real property and another person own a part of it at the same time. Either the city’s property right in the tunnel is less than a fee, and the contractor has a property right therein, or else that which forms an integral part of the tunnel is owned by the city, and, if so, must necessarily be- a part of the construction. It must be conceded, I think, that the commissioners had the power in the original plan to construct the side walls of the tunnel entirely of hollow, vitrified brick, whether thereafter used as a receptacle for the conduits proper, or not. If such had been the plan, it could not be contended but that the wall itself, even though constructed of hollow [222]*222brick, would be a part of the construction. It could have constructed the walls of the tunnel of solid brick, leaving holes therein, through which the conduits transmitting the power could be placed, and no one would then contend but that the wall was construction, even though used by the contractor as a place for his conduit. What the commissioners could do in the beginning, they could do during the progress of the work with the same force and effect as though it was originally planned. What they did was to change the plan by providing for the enlarged excavation. There was then constructed a wall next the side of the excavation made of hollow brick coated with water proofing. Next this structure was placed the vitrified ducts, inclosed in mortar. On the outside of this and forming the inner wall of the tunnel, has been placed a mass of solid concrete thirteen inches thick, the whole inclosed at top and bottom in a solid mass of concrete and mortar. As the wall reaches the stations constructed along the line, the vitrified brick ducts are carried under the floors of the stations and covered over with about three inches of concrete, over which is placed a tesselated floor; and leaving the station, the vitrified brick ducts again enter the continuing wall. This whole construction is as firm and solid a part of the structure as are the steel supporting columns — is as much an integral part of the whole as is the roof which spans the top.
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Hatch, J.:
It cannot, I think, be doubted but that both statute and contract contemplated that the commissioners should exercise very broad powers in providing for the construction of the tunnel and in changing the detail of the plans after the same had been begun. In the exercise of power respecting changes the only limitation seems to be that departure should not be made from the general plan of construction. It logically follows, therefore, that whenever the commissioners, by reason of matters not contemplated when the contract was made, and the exigency of the situation, require -a change in method and manner of construction, they have the power to make such change, and the contractor is bound to observe and comply with the directions given concerning it. As motive power was in process of development when the contract was made, it was not definitely determined what power should be used. When this subject was settled, it was agreed that electricity was the only power practicable. The commissioners, when this conclusion was reached, [220]*220undoubtedly had the power to make such change as was necessary to conform the tunnel to meet the requirements of electricity as a motive power, and enlarge the same in order to make provision therefor. Consequently, the increased excavation, -which was found necessary for the walls of the tunnel in order to accommodate and apply the electric motive power to the best advantage, was clearly within the power of the commissioners to direct, and the work rendered necessary thereby became a part of the construction of the tunnel. Primarily, the construction of the tunnel was to furnish a place for a railroad. The whole purpose is to enable a railroad to be operated in this space, and when the space is excavated, it becomes a place in which to put the equipment of a railroad; and this embraces cars, rails, motive power and all else essential to the complete establishment of the same with the power which moves the trains over its tracks. The increased excavation, therefore, rendered necessary by the adoption of electricity as a motive power was clearly within the power of the commissioners to order the contractor to do, and when done it was properly chargeable to construction.
The vitrified ducts, which form a part of the solid wall of the tunnel, fall within the same category, and if the enlargement of the excavation be construction, the wall is also. I am quite ready to concede that within a strict definition and in a technical sense these ducts, or hollow vitrified brick, may be described as a conduit or way, and, therefore, within the words of the statute; but that is not the controlling consideration. The tunnel is that, and it is properly described as a conduit, or way, for the passage of cars, but because the cars run through it does not make it equipment. The real question is what are these vitrified ducts, within the meaning of the statute and the contract thereunder ? It is evident that the statute and the contract provide for two separate things, each one quite independent of the other in fact and in all the essential rights of property. The evident intention is to keep the two perfectly divisible. That part of the tunnel which is construction, the city is to furnish, pay for and own. That part which is equipment, the contractor is to furnish, pay for and own, subject, when provided, to a certain lien on the part of the city for its protection. The entire tunnel proper is regarded as a street, of which the city is the owner [221]*221in fee. The contractor cannot own any part of this structure, or have an interest therein, except to place therein a railroad, with the necessary power to operate it. His interest must, of necessity, be a severable, personal property interest in the equipment, which, if not paid for by the city at the expiration of the term of the lease, he may remove as his property. The language of the statute as to what constitutes equipment provides that it “ shall include all rolling stock, motors, boilers, engines, wires, ways, conduits and mechanisms, machinery, tools, implements and devices of every nature whatsoever used for the generation or transmission of motive power, and including all power-houses and all apparatus and all devices for signaling and ventilation.” (Laws of 1891, chap. 4, § 35, as amd. by Laws of 1896, chap. 729, and Laws of 1900, chap. 616.) Thus showing that the statute contemplated by this recital that the equipment in its essential characteristics should be personal property. So far as it speaks of real property, it is of such property as is independent of the tunnel, use of which is made for the generation and transmission of motive power to the tunnel proper. The property used for the generation of power to be supplied to the tunnel would not have been embraced within the term “ equipment ” had not the statute so named it. It is essentially real property, necessary for the operation of the railroad; and as it was essential in order to furnish motive power, the duty was devolved upon the contractor to furnish it, and upon that, the city was given a lien as well as upon the equipment used in the tunnel. The title to this property, whether real or personal, is in the contractor, and upon it the city is given a lien. It is incomprehensible that the city can have a fee in real property and another person own a part of it at the same time. Either the city’s property right in the tunnel is less than a fee, and the contractor has a property right therein, or else that which forms an integral part of the tunnel is owned by the city, and, if so, must necessarily be- a part of the construction. It must be conceded, I think, that the commissioners had the power in the original plan to construct the side walls of the tunnel entirely of hollow, vitrified brick, whether thereafter used as a receptacle for the conduits proper, or not. If such had been the plan, it could not be contended but that the wall itself, even though constructed of hollow [222]*222brick, would be a part of the construction. It could have constructed the walls of the tunnel of solid brick, leaving holes therein, through which the conduits transmitting the power could be placed, and no one would then contend but that the wall was construction, even though used by the contractor as a place for his conduit. What the commissioners could do in the beginning, they could do during the progress of the work with the same force and effect as though it was originally planned. What they did was to change the plan by providing for the enlarged excavation. There was then constructed a wall next the side of the excavation made of hollow brick coated with water proofing. Next this structure was placed the vitrified ducts, inclosed in mortar. On the outside of this and forming the inner wall of the tunnel, has been placed a mass of solid concrete thirteen inches thick, the whole inclosed at top and bottom in a solid mass of concrete and mortar. As the wall reaches the stations constructed along the line, the vitrified brick ducts are carried under the floors of the stations and covered over with about three inches of concrete, over which is placed a tesselated floor; and leaving the station, the vitrified brick ducts again enter the continuing wall. This whole construction is as firm and solid a part of the structure as are the steel supporting columns — is as much an integral part of the whole as is the roof which spans the top.
Upon what principle of law can it be held that the contractor owns under the terms of this contract a part of this structure, and how, if vested with such ownership, can the city have a fee therein ? The conduit which conveys the motive power to run the railroad consists of lead tubes lined with copper, in which run the electric wires; and the actual conductor of the power is drawn through the ducts from the manholes. Because the vitrified brick chambers are used as receptacles for this conduit does not make it a part of the equipment any more than does the open space of the tunnel make it equipment because the cars run therein; and the ducts do not become any less a part of the solid wall because they are used for holding the conduits which carry the live electric wires. As we have before observed, the contract itself contemplated a severable interest of property rights, distinct and independent. No construction of it ought, therefore, to obtain which makes such rights joint, instead of several, and which gives a part ownership in the fee of the [223]*223tunnel, when the statute vests it absolutely in the city. It is to be borne in mind that at the expiration of the lease the city is to take and pay for the equipment, and intermediate that time it has a lien thereon. It must follow that if the city for any reason refuses to take and pay for the equipment upon the termination of the lease, the contractor will have the right to remove the same. He has title to the property and is either entitled to be paid for the same, or have the right to take possession. This is his legal right, if he has title thereto. The city upon its part is authorized to enforce its lien against the property of the contractor and is invested with all legal remedies in enforcement of the same, in the event that the contractor is guilty of a breach of the contract. Suppose the city forecloses its lien and sells the vitrified brick, which has become an integral part of the wall, what would it deliver to the purchaser, and how would the latter get possession of the property thus sold ? A judgment of foreclosure would not provide for a destruction of the wall of the tunnel as it would not be the appropriate relief in such an action, and a purchaser could take nothing unless he acquired the right to destroy a portion of the wall. Certainly, neither the statute, nor the contract, contemplated such a result. The presence of the vitrified brick does not make the structure any less a wall nor change its permanent character, nor is it more or less a way or conduit than the place where the rails are laid and the cars operated. By the provisions of the contract, the contractor is not to furnish equipment until after two-thirds of the work of construction is done. This clearly contemplates that the tunnel should be excavated and the walls finished before the contractor should begin to supply equipment, and the same thing is true as to the schedules of equipment, which he is required to file. Clearly, therefore, the contract contemplates that equipment was considered as something entirely aside from and independent of the permanent structure constituting the tunnel proper. Such provision is inconsistent with the idea of ownership of any part of the permanent structure of the tunnel. The metal tubes which carry the electric wires answer completely the statutory definition of equipment and the terms of the contract. This is introduced after the structure is completed, and may be removed therefrom without damage to the structure or interference with its integrity. It is property to which [224]*224a lien can attach, and upon which it may be enforced. There is no inconsistency of title as to it, even though it passes through the walls of the tunnel. Such view harmonizes the provisions of the statute and contract as to what is essentially construction and what is essentially equipment. I am not able to see that any other view does, SO' far as this matter is concerned. Equipment in this respect can be introduced after the tunnel is completed. The vitrified brick cannot be so introduced; when it is introduced it becomes a part of the permanent structure.
It seems to me, therefore, that as the commissioners could have originally authorized the enlarged excavation, and this method of constructing the wall for the purpose for which it is to be used, they possessed the same power after determination was made to use electricity as the motive power, and they had then the same reserved power to direct the construction of both tunnel and wall in this manner as they had in the beginning. When the commissioners so determined, the contractor had no alternative but to obey and construct the tunnel and its walls in that particular manner. The engineer in charge of the work and every one in authority have placed this construction upon the statute and the contract, and determined what is the physical fact, that this vitrified brick was an integral, inseparable part of the wall. Being such, the city has the absolute title to the whole structure, and it seems to me absurd to say that the contractor can have any ownership therein or the city any lien thereon. If this view obtains, it necessarily follows that the contractor became entitled to be paid for the items for which the warrant was directed to be drawn. There are some small items of steel, expanded metal and cast iron, which the record does not make clear whether they are a part of the structure. I do not understand, however, that there is any dispute but that the contractor is entitled to be allowed those items, as forming a part of the construction if our view obtains as to what constitutes equipment and what construction. If otherwise, as to these items an alternative writ would be necessary.
If these views are sound, it follows that the order should be reversed, with ten dollars costs and disbursements, and the writ directed to issue, with fifty dollars costs.
Van Brunt, P. J., and McLaughlin, J., concurred.