In re Broadway Surface Railroad

41 N.Y. Sup. Ct. 414

• Court: New York Supreme Court
• Decided: December 19, 1884
• Status: Published

Opinions

Davis, P. J.:

That act of May 6, 1884, entitled “ an act to provide for the construction, extension, maintenance and operation of street surface railroads and branches thereof in cities, towns and villages,” provides two modes in which a railroad company organized under its provisions may acquire a right to construct and operate such street surface railroads. One of these modes is by obtaining, after the passage of the act of 1884, the consent in writing of the owners of ■one-half in value of the property bounded on that portion of the street or highway upon which it is proposed to construct or operate such railroad, and the consent of the local authorities, having control of the same. The other mode is by applying, in case the consent of the owners of one-half in value of the property cannot be obtained, to. a General Term of the Supreme Court for the appointment of three commissioners to determine, after a hearing of all parties interested, whether such railroads ought to be constructed and operated, and obtaining the confirmation of their report, if favorable to such construction, by said General Term of the Supreme-Court ; and also obtaining the consent of the local authorities. In cities the common council of the city, acting subject to the power possessed by the mayor to veto ordinances, is declared to be the local authority with power to give the consent required by the' act; and provision is made for the form of an application for the-consent of the common council,/ and tbe proceedings to be taken on such application before the consent is given. The act declares that such consent of the common council shall operate also as the consent of the city as the owner of any property upon and along the street through which the proposed railroad is to be constructed, except that when such city property is a public park or square, the consent of one-half the owners of property on the other side of the street, and opposite the park or square, shall also be obtained. The act further declares that for its purposes the value of the property bounded on the street to be occupied by the railroad shall be ascertained and determined from the assessment-roll of the city confirmed or completed last before the common council shall have given its consent, except that the value of the property owned by the city shall be ascertained and determined by allowing therefor the same price or value as is shown by such assessment-roll to be the valué of the equivalent in size and frontage of any adjacent property on the same street. It will thus be seen by these several provisions of the act that the consent in cities of the common council is an absolute prerequisite in all cases to the acquisition of the right to construct any surfac.e street railroad under the act.

There is nothing in the act prescribing the order in which the several steps of either mode must be taken ; nor is it, we think, at all material to the acquisition of the right to construct a railroad that such steps shall be taken in any particular order. It is enough that steps required by either mode shall appear to have been actually taken and consummated, within the intention of the act, before the power to construct a railroad is exercised.

It is thought and strenuously argued that, because for the purposes of the act the value of the property and its ownership for the purpose of serving notices, under the fifth section, are to be ascertained and determined from the assessment-roll of the city confirmed and completed last before the local authorities shall have given their consent, therefore the consent of the common council must be obtained before any other step can be taken. But this construction does not seem to us to be either a necessary or a reasonable one. The sole purpose of the provision is to declare from, what assessment-roll of the city such valuation and ownership must be ascertained, so as to exclude the use of anj other assessment-roll than the one thus defined and pointed out by the act. When it appears that the assessment-roll from which the value and ownership for the purposes of the act have been taken, is in fact that confirmed and completed last before the common council has given its •consent both the spirit and the letter of the statute are complied with.

If it were the intention to provide .that the consent of the common council to the construction of a road must in all cases be ■obtained before any other of the steps required by the act can be taken, the legistature would doubtless have so expressly enacted •and not, left so important a requirement to be ascertained only by inference, or arguments from doubtful language. Such a construction would have the effect to annul the written consent, duly acknowledged of every property owner on a street, if such consent happened to be given before the common council had given its consent although such consent of the common council 'was given upon undoubted evidence that the assessment-roll, upon which the value was to be ascertained, was that confirmed and completed last before the action of the common council. Besides it is manifest that a rigid construction of the character now under consideration might be used to operate to exclude all competition, and invest the common council with a power greater than is-intended by the act.

The act intended to give to the consent of the property owners great weight before the common council in determining whether its consent should also be given ; and where several roads are contemporaneously making applications to the common council for its consent, the manifest desires of the property owners along a street, •expressed in the binding manner indicated in the act, ought to-and doubtless would have great influence with that body. But no company would seek to obtain the consent of property holders in advance of the consent of the common council if it were to be regarded as a nullity and required afterwards to be repeated. It is enough, in our judgment, to comply with the requirements of the act that it appears .that all the several steps have in fact been taken and consummáted within a period of time which shows that the assessment-roll of the city, confirmed and completed last before the common •council gives consent, has actually had the effect and operation indicated by the statute. Either of the several steps requisite to acquire tbe right under the act may be primarily taken, and all of them may proceed pari passu; but when the process is complete it must appear that each one has been consummated, so that the prescriptions of the statute are satisfied. Indeed it would not in any case be an unreasonable requirement on the part of the common council, before giving its consent to any projected railroad, that it should first show that the construction of such road is consented to-by the property owners, or that the propriety of its construction has been certified by a commission with the approval of the court. We think, therefore, there is no force in the objection that the application to the court in this case preceded the. consent which now appears to have been given by the common council of the city.

But it is objected that the value of the property has been ascertained and determined in this case by the assessment-roll of 1883, instead of the assessment-roll of 1884. It is true that it was so-ascertained in the original application. But inasmuch as the assessment-roll of 1884 was confirmed and completed in August last,, while the proceedings were pending on the former application, and before the consent of the common council had been legally obtained, that proceeding was abandoned and the one instituted which is now before us. The present proceeding is based, as is shown by the affidavits and papers, upon the value of the property as ascertained by the assessment-roll of 1884, and upon the ownership of such property appearing in the last named assessment-roll, for the pulpóse of notices, to be given under section 5 of the act. The affidavits previously used were resworn and thus made -new-affidavits for the purposes of this application ; and if their statements are true, there can be no question but that they relate to the assessment-roll last confirmed and completed.

This application is based upon an alleged refusal of the owners of one-half in value of the property bounded on the road, to give their consent to the construction of the road. The affidavits show that of the owners representing on the assessment-roll three-quarters-in value have refused to give their consent. This is stated in general terms, and it is also sworn to that the owners of more than one-half' of the actual or market value of the property, independently of its-assessed value on the roll, have refused to give such consent. The names of all the owners, agents and representatives, as they appear1 on tbe assessment-roll, are set forth. The efforts made to obtain their consent are detailed. This is done for the purpose of showing that the statement of such refusal is not the mere conclusion of the affiants, but the fair result of the facts as detailed in the affidavits. And taking these several statements together there can be no reason to doubt that the fact is established by the affidavits that more than one-half the owners in value along the line of the proposed railroad have refused their consént to its construction. It, is no matter what their reasons for the refusal are. Whether they are good, bad or indifferent is wholly unimportant. It is enough to establish, in order to satisfy the act, that the consent of the property owners, required by any of its provisions, “ cannot be obtained.” The reasons why it cannot be obtained may be extremely .various in such a case. Inability to find the owner, his absence from the country so that an application cannot be made to him, his infancy or insanity .or other disability are as proper to be considered as his actual refusal. The statute requires a fair and reasonable effort to be made to obtain the consent of more than half in value of the property owners. But when more than one-half have refused to give consent, or whenever it is established that such consent cannot be obtained by reason of refusal or other controlling circumstances, then the provision which allows, under the Constitution, an application to a court for the appointment of commissioners becomes operative. We have carefully scrutinized the affidavits accompanying the petition in this case, and are satisfied that they do present abundant evidence that the consent of more than one-half in value of the property owners along the line of Broadway cannot be obtained.

It is also objected that notice of this application has not been given, as required by the fifth. section of the act. That section authorizes personal service of the notice, or service by mail in the manner particularly indicated; and the notice required is to be served either personally, by delivering the same to the property owner, “ or his agent or representative, as such owner, agent or representative appears upon such assessment-roll,” * * * “or by mailing the same, properly folded and directed, to such owner, agent or representative, at the post-office nearest his usual place of residence, with the postage paid thereon, at least ten days prior to. such application.” It then provides tbat if tbe person on whom such service is to be made is unknown, or his residence is unknown and cannot by reasonable diligence be ascertained, no service of such notice, either personally or by mail, need be made. The affidavits before us show that these provisions have been carefully complied with, that the service has been by mail, directed to the owners, agents or representatives, as they appear upon the assessment-roll, in each instance, with postage paid, and that in many instances several notices have been directed to. different addresses of the same person for the purpose of securing his attention. We are not able to see any fatal defect in respect of the service. .

Affidavits are presented in opposition to the petition, which show that a very considerable portion of the property along Broadway is occupied by tenants, under leases of greater or shorter duration, to whom notices have not been directed. But none of these affidavits show that the names of those tenants appear on the assessment-roll as occupants or owners, nor is their interest in any case shown to be assessed on such roll for the purposes of taxation. Nor is it made to appear that any tenant or lessee whose name does appear on such assessment-roll has not been duly served. On the contrary, it appears affirmatively that all such have been served. The statute does not therefore require that occupants and lessees whose names are not on the assessment-rolls shall be served. They are regarded by the statute as represented by the persons assessed upon the roll for the full valuation of the property which, of course, includes their interests, and for that reason their interest, in the contemplation of the statute, is represented in and by the assessed ownership. We think that this objection is therefore not well taken.

.Yarious constitutional questions have been raised and presented for our consideration. Some of them, it must be conceded, are of a nature that deserve consideration at the hands of the court. But they are of a character which may as well or better be presented, in our judgment, on the motion for confirmation of a report, if one favorable to the construction of the railroad shall be presented by the commissioners. Nothing is lost in their value by postponing them until that time, and we think that is the more judicious course.

Our consideration, therefore, leads us to the conclusion that upon the papers presented it is our duty, under the requirements of the act, to proceed and appoint commissioners, without prejudice, however, to any of the constitutional questions just referred to.