The opinion of the court was delivered by

This is an application by the Yew York Bay Bailroad Company for a summary determination of the character of certain lands owned by the applicant and located within the bounds of the city of Jersey City for the purposes of taxation, which have been assessed by the local authorities of the city and also assessed by the state board of assessors as property used for railroad purposes, pursuant to the authority of section 28 of the revised act for the taxation of railroad and canal property. Pamph. L. 1888, p. 269. The lands thus doubly taxed are plot 2, block 1390, Miles street; block 1383, lot 2, Miles street; block 1404, lot 3 and gore, as plotted upon the assessment map of Jersey City. The case shows that these plots were assessed for taxes by the city for the years 1894 to 1902, inclusive, and that for the same years they were assessed by the state board of assessors, and that the taxes thus levied have been paid to the state. The *113lands thus assessed are within the right of way of the New York Bay railroad, the main stem which connects the Pennsylvania railroad at Waverly with a freight terminal yard on New York bay in that part of Jersey City called Greenville.

The company was formed in 1890 by a merger of other companies. Work was done on this railroad in 1889 and. 1890 by filling in back of the dike on Newark bay and running that filling westerly towards Waverly, and this work continued off and on at that point for several years, covering a distance of several thousand feet. Some work was also done in 1889 near the crossing of the Central railroad in Jersey City, four hundred feet of trestle being built west of the crossing and two hundred feet of embankment east of the crossing, but nothing was done in that part of the right of way which includes the blocks where the taxes in question were levied until the latter part of the year 1900, when the grading of the road and the building of bridges over streets and the laying of tracks commenced. Until that year the land in blocks 1383 and 1390 remained in its natural state unimproved and was not used for any purpose, but the land in block 1404, except the gore, was being used in 1900 for farming purposes, a truck farm being located therein, which was farmed until the farming was interfered with by work on the railroad. Construction trains ran over this property between 1900 and 1904, but the work was not completed so that the railroad could be operated until October, 1904.

The question therefore is, were the plots of ground covered by the assessments in question during the years named when they were levied, property used for railroad purposes within the meaning of the revised act for the taxation of railroad and canal property, approved March 27th, 1888. Pamph. L. 1888, p. 269. It was held by the Court of Errors and Appeals in United New Jersey Railroad, &c., Co. v. Jersey City, 26 Vroom 129, that the authorized right of way of a railroad duly acquired, over which a railway has been constructed and is in good faith operated, is used for railroad purposes within the meaning of the act named, although it may not, for the time being, be wholly occupied by tracks or other railroad *114appliances. But the case sub judice presents a different question, for the taxes in dispute were levied during the period of construction and before the road was in operation. The rule to be here applied was laid down by this court in State, &c., v. Haight, 6 Id. 40. That rule, briefly stated, is this: Where a company has not completed its road and appendages and is engaged in the work of construction, the exemptive words of the statute must be extended to property, not actually used for other purposes, which has been acquired as the means of carrying into effect the objects of the charter and is fairly within the plan upon which the work is being executed and will be necessary for the business of the company when the same is completed. Under this rule we would have no hesitation in extending the claim of exemption from local taxation to the lands assessed for so long a period as was reasonably necessary for the construction of the road. But where such a work has been delayed beyond the requirement of reasonable necessity in order to serve the interest or convenience of the company, then we think that lands in the situation that these were before the work of construction began in that part of the right of way would not be entitled to the benefit of such exemption. Such a ground of limitation in applying a rule of exemption to railroad property was laid down in the opinion in State v. Mansfield, 3 Zab. 510, where Justice Potts said that “the limitation must be fixed where the necessity ends and the mere convenience begins.” The burden was upon the company seeking the benefit of the exemption to show that they had brought themselves within the rule here stated. This, we think, they failed to do. Another ground for denying the exemption to block 1404, lot 3, is found in the fact that in 1900 and prior thereto it was used for farming purposes. State v. Mansfield, supra.

Our conclusion therefore is that the lands so assessed by the local authorities of Jersey City during the period from 1894 to 1900, inclusive, were not property used for railroad purposes within the meaning of the exemption act, and that the city taxes so assessed thereon during the period named should stand, and that the assessments made on said lands *115by the state board of assessors during the same period should be canceled and the taxes collected thereon by the state returned to the applying company; that after the year 1900 the exemption must apply and the taxes levied thereon by the city authorities for the years 1901 and 1902 must he canceled. The judgment will ho entered without costs to either party.