Colonial City Traction Co. v. Kingston City Railroad

47 N.E. 810, 153 N.Y. 540, 1897 N.Y. LEXIS 729

• Court: New York Court of Appeals
• Decided: October 5, 1897
• Status: Published

Opinion

Vann, J.

The appellant is a street railroad company, organized April 22, 1896, owning and operating a surface railroad in the city of Kingston running substantially east and west across the city, but in two sections, each about two miles long, and separated near the middle of the town by a portion of a street known as Broadway. The eastern section ends at the central line of Prince street where it crosses Broadway, and the western section at the central line of Cedar street where it crosses Broadway,' the distance between the two points, as measured on the street last named, being 870 feet. The respondent is also a street railroad company, organized June 7, 1879, operating a surface railroad in said city upon tracks laid in various streets, and, among others, through Broadway from the central line of Prince street to the central line of Cedaistreet. Both railroads are operated by electricity. The appellant, by extending its tracks through Broadway from Prince street on the east to Cedar street on the west, could connect its eastern and western sections, and thereby save itself the expense, and the public the inconvenience, of transferring passengers by omnibus from one part of its road to the other. The local authorities, up to the time of the trial, had refused to permit the appellant to extend or operate its road through the short strip of Broadway above mentioned, and thus unite the two sections, and the respondent had likewise refused to permit the use of its track over-said strip for the same purpose. Ho effort has been made by the appellant, so far as appears, to obtain the consent of the property owners whose lands abut upon Broadway between Prince and Cedar streets to such extension of its road or to the operation thereof when extended. This proceeding was instituted by the appellant to acquire by condemnation under the statute the right to use the respondent’s tracks over the strip in question, upon making proper compensation therefor. The application was resisted, an answer served and a trial had, which resulted in an adjudication that the proposed use of the respondent’s railroad, including “ poles, wires and appurtenances” was actually necessary within the meaning of the statute, and commissioners were appointed “ to determine the extent and the manner in which ” the appellant should “ have the right to take, hold and use the said track, poles, wires, incidents and appurtenances,” and to “ ascertain and determine the amount of the compensation to be made ” for the same. An appeal was taken to the Appellate .Division, which reversed the judgment and dismissed the proceeding, two of the learned justices dissenting. (15 App. Div. Rep. 195.) A further appeal has brought the matter before us for determination.

The proceeding was commenced in March, 1896, and was founded upon section 102 of the Railroad Law, which provides, so far as now material, that “ no street surface railroad corporation shall construct, extend or operate its road or tracks in that portion of any street * * * in which a street surface railroad is * * * constructed, * * * without first obtaining the consent of the corporation owning and maintaining the same, except that any street surface railroad ■company may use the tracks of another street surface railroad company for a distance not exceeding one thousand feet, * * * whenever the court upon an application for commissioners shall be satisfied that such use is actually necessary to connect main portions of a line to be constructed or operated as an independent railroad, * * * and that the public convenience requires the same, in which event the right to use shall only be given for a compensation to an extent and in a manner to be ascertained and determined by commissioners to be appointed by the courts as is provided in the Con- damnation Law.” (L. 1890, ch. 565, § 102, as amended by L. 1892, ch. 676 ; L. 1893, ch. 431 and L. 1894, ch. 693.)

The respondent, in opposing the effort to condemn the right to nse a part of its track and appurtenances, relies upon section 18 of article III of the Constitution, which provides, among other things, that “ no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the Appellate Division of the Supreme Court, in the department in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners.” (Cons. 1894, art. III, § 18; Cons. 1846, art. III, § 18, as -amended in 1874.) Reliance is also placed upon section 91 of the Railroad Law, which provides, in substance, that “ a street surface railroad, or extensions, or branches thereof, shall not be built, extended or operated unless the consent in writing, * * * of the owners * * * of one-half in value * * * of the property bounded on, and also the consent •of the local authorities having control of that portion of a .street or highway upon which it is proposed to build or operate such railroad shall have been first obtained.” (L. 1890, ch. 565; § 91, as amended by L. 1892, ch. 676; L. 1893, ch. 434; L. 1894, ch. 723; L. 1895, ch. 545.)

If the consent of the local authorities or of the abutting owners is required to enable the appellant to extend or operate its road through Broadway, under the circumstances, this proceeding cannot be maintained until the requisite consent has been obtained. If it is required at all, it must be liad before the proceeding is begun, for the statute in providing that the consent “ shall have been first obtained ” makes it a condition precedent. As said by this court, when construing a similar statute under somewhat similar circumstances: “ Sufficient vitality and strength to go on with and construct a railroad do not exist * * * until infused by the consents of the local authorities and property owners.” (Matter of Application of Rochester Elec. Ry. Co., 123 N. Y. 351, 358.)

It is, however, insisted that the appellant does not seek to build a railroad through Broadway but to acquire the right to use a road already built after consent had been duly obtained from all sources required. It is true that the appellant does not intend to build a railroad through Broadway, in the sense of laying a track there, but it does intend to “extend and operate” its railroad by so using the tracks of the respondent as to unite the two sections of its own road. Tracks alone do not constitute a railroad within the meaning of a statute which declares that a railroad shall not be “ built, extended or operated ” until certain preliminaries have been complied with. Gars and other appliances are required in order to make or operate a railroad. If the appellant shall finally succeed in acquiring the right to run its cars for a short distance on the respondent’s tracks, it will still be operating its own railroad, not that of another company, over that part of its route as well as any other. It clearly would not be operating the respondent’s railroad, but using a portion of the tracks of the respondent to operate its own railroad. Two different companies cannot operate the same railroad at the same time, although both may use the same track in part to operate their respective roads. When the statute provides that “ any street surface railroad company may use the tracks of another street surface railroad company ” upon certain conditions, permission to “use the tracks” implies use for the purpose of operating its cars thereon. Manifestly no other use is intended. A railroad is none the less in operation between two points because it runs its cars for a part of the way over the tracks of another road. When a railroad corporation acquires the right to run its cars over a street, whether upon its own track or that of another, that right becomes a part of the railroad, and in exercising that right the corporation operates its own road. The operation of a railroad includes the running- of cars, and when a company runs its own cars, receives its own passengers and collects its own fares over a continuous route of four miles, and all the trackage belongs to it except a connecting link of a few hundred feet in the middle, which it acquires the right to use through the power of eminent domain, we think it is to be regarded as operating its own railroad over the entire route, within the meaning of the Constitution and the statute. The prohibition is in the disjunctive and is directed against operation the same as it is against construction.

It is further insisted that where one company has the consent of both local authorities and abutting owners to build and operate a railroad through a street, no further consent from either of those sources is necessary to enable a second company to use the tracks of the first, and hence that neither the Constitution nor statute applies to the case in hand.

The consent required is not simply to the laying of the tracks, but also to the operation of the road. When the municipal authorities consented that the respondent might operate its road through Broadway, they did not consent that another company might operate a distinct and independent line through that street. The operation of one railroad might cause so slight an interference with the use of the street as not to seriously impair its usefulness, whereas, if two or more railroads were permitted to operate their lines through the street, it might virtually destroy it for the ordinary purposes of a highway. The danger of crossing at grade steam surface railroads, of which there are two running across the strip in question, would be greatly increased by the traffic of several street railroads, which shows the necessity of keeping the subject thoroughly under the control of the public authorities by conservative legislation and conservative construction of that legislation. So an abutting owner might be willing to permit one company to operate its line through the street in front of liis property, which would involve the passage of but three or four cars an hour, but not be willing that several companies should have that privilege, which might involve the passage of a car every two minutes. It is not the laying of tracks but the running of cars that constitutes the chief burden both upon the street and the property of the abutting owners. Consent to the burden of one road should, in reason, be limited to that road with whatever increase of business it may have, but should not be extended to as many roads as can crowd their cars into operation upon the street. It would be an unreasonable construction to hold that this is what the public authorities or. the private citizens intend when they consent to the building and operation of a street railroad. Instead of an advantage to the public, or to those owning property on the street, which is the inducement to obtain consent, it might result in a heavy and unexpected burden upon both, without any power to prevent it, and yet with no intention to consent to it. It would be a perversion of the consent given by extending it far beyond the intention of the parties. The object of the statute is to protect the public against injury to the streets, without the consent of their representatives, and also to protect the property of the citizen against injury without his personal consent or the consent of a majority of the abutting owners, or, where the refusal to consent is unreasonable, the order of the Appellate Division of the Supreme Court. The consent thus required is of such importance as to be embedded in the Constitution itself, not in the interest of railroad corporations, but of public and private rights. The statute, however, goes a step farther than the Constitution by providing through section 102 of the Eailroad Law additional protection to the public by prohibiting a second company from laying a track in a street already occupied by the track of another company and thus incidentally protecting the latter from competition on the same street without compensation. Sections 91 and 102 relate to the same general subject and should be construed together. The latter does not provide an alternative right, but is an additional requirement to regulate the construction and operation of street railroads so that the public interests may be promoted and private rights protected. (In re Thirty-fourth St. R. R. Co., 102 N. Y. 343.) Construed as an alternative provision, it would be in violation of the Constitution, for it would authorize the operation, if not the construction, of a street railroad without the consents required by that instrument. Even if the old road should consent under section 102, the new ro.ad could neither extend nor operate without the consents required by section 91.

We agree with the reasoning of the learned Appellate Division in this case, and should have adopted their opinion as our own had it not been silent upon the question as to the necessity of consent on the part of property owners. In order to avert further litigation in this as well as in other cases that may arise, we have deemed it our duty to express our views upon that subject also.

We think that when consent is given either in behalf of the public, or the abutting owners, to one company, it is for its own use and not for the use of an indefinite number of other companies, regardless of the interests of the city or of the owners of property on the street.

The ordér appealed from should be affirmed, with costs.

All concur, except Gray, J., absent.

Order affirmed.