APPEAL by the defendants, John B. Hoyer and others, from a final order confirming the report of commissioners in a condemnation proceeding, entered in the office of the clerk of the county of Niagara on the 10th day of October, 1908, and also from a judgment entered in said clerk's office.
Daniel J. Kenefick and George W. Thompson, for the appellants.
Alfred W. Gray, for the respondent.
The plaintiff is a street surface railroad company operating an electric railway from Rochester to Buffalo through the village of Middleport, a village duly incorporated in 1858. The railroad tracks run through a part of the village known as the common, and the defendants abut upon this open tract of land.
Prior to 1827 one John Copeland owned about eleven acres, including the common. He plotted a part of this land and upon his map left an open tract extending east from Main street about eighteen rods to a new street delineated on the map as Vernon street. Surrounding this common he divided the tract into lots, numbering each of them.
On December 14, 1827, Copeland and wife conveyed several of these lots, referring to the map, to one David Lindsey. Some of these lots were on Vernon street, as entitled on the map and referred to as a 'new street denominated on said map as Vernon, ground for which street and also ground
for a public common eight rods wide extending from Vernon Street to the above described highway (now Main Street) as exhibited on said map, * * * the said Copeland hereby agrees shall be faithfully devoted.'
On the same day Copeland and others conveyed to the Methodist Episcopal Church Society a lot on the south side of this common, and about midway between Main and Vernon streets. The deed contains this clause: 'With the privilege of a public common eight rods deep on the north side of the same, which common shall extend from Main street, running north and south through the said village of Middleport, to a new one called Vernon street.'
A church edifice was soon after erected on this lot, and continued to be occupied by the society until 1899, when it erected a church building on the northeast side of the common, which property is still owned and occupied by it--the main entrance to the church edifice being on Vernon street. The first lot owned by it had no other access to its front entrance except over this common, and during its possession ingress and egress were had over that tract. Dwelling houses were erected on the north side of this common, and the defendants Lahey and Hoyer own and occupy two of these lots fronting on the common, and there is no way of reaching them except by passing over the same. Long before the village was incorporated, Main and Vernon streets were connected by a roadway about thirty-four feet in width. Trees were planted on each side of this roadway, and sidewalks were constructed in front of the lots. After the village was organized in 1858 the roadway was improved, and is now macadamized, and is practically continued to the east in a street now designated as Park avenue. The whole common has been accepted and is under the control of the village authorities the same as any other street of the village. They have regulated the building of the sidewalks, travel has been extensive over it, and telephone and electric light poles were erected upon it. The abutting owners used private driveways to reach the road from their lots, and have hitching posts and stepping blocks adjacent to it. On the southeast corner there is a union school building, and a path much used and long well worn extends diagonally across
the common from this building. There has been no embellishment or ornamentation of the land on either side of the roadway. The trees and the grass have been permitted to grow, but there has been very little attempt on the part of the trustees to treat this common in any other way than a wide street. It was not inclosed. At one time posts were driven along each side of the roadway and a rail or board fastened on top of them, which remained for a few years, but was long ago abandoned. It did not interfere with access to any of the lots over the existing driveways. The use by the ...