The peremptory mandamus was denied by the special term, on the ground that “thereferees had no jurisdiction to lay out the road in question, over the route adopted by them,” because no notice was given to the Erie Railway Company, of the time and place of meeting to decide upon the application, before the determination to lay out the highway was made. The statute provides that before the commissioners shall determine to lay out the highway, they shall cause notice, in writing, to be given to the occupant of the land through which the road is to run, of the time and place at which they will meet to decide on such application. They acquire no jurisdiction until they have given such notice. (The People agt. Judges of Herkimer County, 20 Wend., 186; People agt. Robertson, 17 How. Pr. R., 74.)
It appears by the verdict, that in 1850, William S. Crandall, the ancestor of the relators, conveyed by deed to the New York & Erie R. R,. Company (of whom the Erie Railway Company are successors), “ a certain spring, or the use of the water of said spring, together with all the land necessary for a reservoir to contain the said water, for the purpose of supplying a water-tank to be erected on said railroad, by said company,’’ with the right of entering on his land whenever necessary to build and keep in order said reservoir and pipes or logs, to conduct said water. In 1851 the company constructed under this grant, a reservoir of rubble masonry, eighteen and one-half feet in diameter, into which water was conducted from said Crandall’s lands, and thence was carried in iron pipes, about half a mile *548to the tank on the railroad. This reservoir is within the lines of said highway, as laid out by the referees; the center line of the road passing over the reservoir, three and a fourth links from the outer edge. The reservoir was constructed under ground (the depth is not given, but it is fair to infer that it was put far enough below the surface to be secure from the action of frosts). It was and is covered with plank, and frequently has to be opened to clear it out. For the last three years earth and turf have been on portions of the plank of the same, and the cattle and animals of the relators in the field of about eighteen acres, have and do pass over and upon the same, as on other portions of the field, there being no enclosure around said reservoir.
The jury have also found, that there would be no difficulty in removing and rebuilding said reservoir outside of the highway, nor in bridging the same for traveling purposes. The assessment of damages to relators does not include the reservoir, but is only for the land around it and along the proposed highway in either direction from it.
There can be no question, I think, but that the Erie Railway Company are the owners of the reservoir and of the land above and beneath it, but the question of ownership is not a material one to the question of jurisdiction. The statute requires the notice above referred to, to be given to “the occupant” and not to “the owner” as such. By the phrase is meant, I doubt not, the actual occupant. The learned judge before whom the motion was heard in the court below, is very clear in his opinion, that the Railway Company was the occupant within the meaning of the statute. Their water was in the reservoir and was constantly being supplied and taken away by the pipes which extended several rods outside the limits of the road in one direction to several springs, and in the other direction for half a mile to the tanks at the railroad. They were therefore in the use of the reservoir and of. the pipes, and were constructively at least in possession of them.
*549But the verdict shows that the reservoir was under the surface of the ground, covered in part by earth and turfed over, in an eighteen acre field used by the relators for pasturing their cattle, and that their animals had as free range over and upon the reservoir as the rest of the lot. The relators were actual occupants of the surface of the entire lot, using it precisely as though no reservoir or pipes were beneath its surface. In my judgment, the statute means that kind of occupancy, and not one buried under the surface.
If the highway be laid over a farm, the statute means by occupant the person in possession of the soil, cultivating it for ordinary agricultural purposes, and not one who may be enjoying some beneficial interest beneath the surface, as for instance, the owner of a farm may have a quarry or mine beneath the surface, which he may be carrying on in the bowels of his land without disturbing the surface, while the farm itself may be leased and cultivated by a tenant precisely as though nothing was going on below. In such a case I think the tenant would be the occupant within the true sense of the statute, and not the subteranean worker. If having and using the reservoir of water below the surface, made the Bailway Company the occupant of the land above, so the use of the pipes in which the water flowed to and from the reservoir, made the company the occupant of the land above them; and hence it follow's, that commissioners of highways must ascertain and notify all persons drawing water in pipes across the line of the proposed road, or their jurisdiction to lay a highway on the surface must fail. Such a rule would be unreasonable and impracticable. It is not a question whether the railway might not have occupied the , eighteen and one half feet in diameter above their reservoir and fenced it in, or left it open if they chose, and in such a case have been entitled to notice as occupant nor whether the occupants of the pasture were rightfully occupying the land over the reservoir; but simply one of actual occupancy at the time notice was required to be given.' If the company *550chose to leave the surface of the reservoir in their use as the rest of the field in which it was situated, it subjected itself to the consequence as to sufficiency of notice, that the statute attaches to any agricultural occupancy. Nor are the rights of the company as owners to be at all prejudiced by this construction. Its reservoir cannot be disturbed till it is compensated, and as owner it is entitled to notice of the proceedings to assess the damages. I think upon the facts found by the jury, the notice given to the agricultural occupant of the land over which the route of the proposed road ran, gave the commissioners and referees jurisdiction to proceed in the case.
A point is made that the reservoir was within the Revised Statutes, as an erection or fixture for the purpose of trade. (1 R. S. Edmonds Ed., 473 § 57.) I think neither the reservoir nor the pipe (and both were, if either) are within the letter or intention of the statute. The laying out of the highway does not interfere with or prejudice the use of the water from the spring. The same artificial channel for conducting it to the tank may be continued. The same mode of passing over it may be adopted as over a natural stream, or open artificial channel. The company being entitled to its compensation if injured to any extent (the case of The People agt. Kingman, 24 N. Y. 559), is sufficiently analagous to be controlling of this question.
There are, I think, no such merits in .this case as to require a strained construction of the statute for the purpose of defeating the relators. It is obvious that the reservoir is no substantial obstacle to the use of the highway. The track for travel can be crossed by it without at all interfering with it or prejudicing the public or the Railway Company. And the reservoir can remain as hundreds of similar constructions do in the much travelled streets of our cities and villages. There is abundance of room to go around without crossing it with the track, but if desirable to pass over it every one knows that a strong covering with a “man *551hole” would be all that would be required to protect the company in its enjoyment and give the same free use that the public have over reservoirs in the towns.
I am of opinion that the order should be reversed and a peremptory mandamus awarded with costs.
All the judges concurred.