In re Kings County Elevated Railway Co.

27 N.Y. Sup. Ct. 217

• Court: New York Supreme Court
• Decided: February 15, 1880
• Status: Published

Opinions

Pratt, J.:

The determination of the commissioners which this court is now asked to confirm is to the effect that an elevated railway, according to the specified plans, etc., ought to be constructed and operated upon the following streets and avenues in the .city of Brooklyn : Fulton street, Water street, Adams street, Myrtle avenue, Broadway, Washington street, Hudson street, Flatbush avenue, Fourth avenue, Atlantic avenue, Hamilton avenue, Prospect avenue, Ninth avenue, Nostrand avenue, Lexington avenue, Franklin avenue, Twelfth avenue, Division avenue, North Fifteenth street, Green street, Meserole avenue, Franklin street, Commercial street, Manhattan avenue, Sands street, Prospect street, York street and Main street.

A few of these streets are devoted to the purpose in view, for short distances, but nearly all of them are to be invaded throughout them entire length by the projected railway. This list includes all the principal thoroughfares of the city. On one of the streets named, property of the assessed value of $15,000,000 is situated, and, doubtless, moré than $50,000,000 in value of real estate would be immediately and most seriously affected by the construction of the entire railway as laid out by the commissioners.

It appears that tho descriptions .contained in the title deeds upon one of the principal streets are such as to give only a small portion of the present owners any claim to the land beyond the sides of the street, and, no doubt can be entertained but that most of the property on all the other streets is in a similar situation.

The structure proposed to be erected is to have its pillars within the curb line, and its cross-girders to cover with trestle work, the entire roadway of each street.

Two streets are given in the alternative. In one of them the construction is dependent upon a future contingency, and upon others it is postponed. In some cases no time whatever is fixed for its completion, thus giving to the company the whole period of its chartered life in which to carry out the plan proposed.

While it is apparent that so extensive a project must make a wonderful' change in the city at large, and entail incalculable damage to some of the abutting property, no adequate provision has been made for any contribution to the city treasury for the enjoyment of this valuable franchise, and the owners of private property are left for indemnity exclusively to proceedings at law, under a system of jurisprudence not yet adapted to such an exercise of the power of eminent domain.

It is proper to consider not only tho inevitable consequences that will result from the construction and operation of this road, as mapped out before us, as an entire scheme, but those also which will result from the possession by the railroad company of the right without the obligation to build.

Here is a proposition to do a thing which certainly will affect property one way or the other. It may benefit some. It may injure some. If the company was bound to build certain advantages might arise to the property affected which might offset the disadvantages. But the right to build is in the nature of an easement, and a cloud upon all the property situated upon such streets. It would injuriously affect its sale in the market and prevent permanent improvements thereon. This corporation has the option literally to gridiron the city of Brooklyn with a •structure sufficiently strong and cumbersome for a freight railway. It may impair the property; it will embarrass if not prevent rival enterprises and thus fasten upon the community all the evils of a gigantic monopoly.

It is questionable if the scheme proposed would be a public ■improvement. Is it not -true that so many advantages given to this company, and so many.burdens placed upon the property owners by this scheme, will render it, as a whole, rather a public misfortune than a benefit ? Will it not retard, rather than advance any system of rapid transit which shall fairly distribute its advantages among all our citizens ?

Is it said that these views affect the public interests rather than the private rights of the abutting owners ? This may be true in one sense, but it nevertheless shows that the public interests are in harmony with the rights of the owners upon these streets which are to be incumbered by the option, without the benefit of the obligation to build this road. While some of these questions were properly submitted to the commissioners appointed by the mayor and the' common, council, they may be all considered by the court in determining whether the benefits to accrue from building this road outweigh the damage likely to result to abutting owners and the public.

We come now to the question of the duty and power of the court in respect to this proceeding. It is with a good deal of hesitation that I have come to the conclusion that it is our duty to examine the merits of the question presented, and to give or withhold confirmation, as shall seem wisest to us under all the circumstances.

Assuming that an elevated road is a necessity, that the routes are proper and that the scheme has progressed substantially as required by the statute, to the point where our confirmation is required to enable the corporation to go on with the construction of tbe road, and assuming, further, that this court can act in this matter only in a judicial capacity, I am not satisfied that the weight of evidence, as it appears before us, sustains the determination made by our commissioners.

It is true that many opinions and prophecies were indulged upon the hearing below, but even these related almost entirely to a very few streets, and were favorable, not especially to the entire scheme, but to rapid transit generally upon certain streets named. There is scarcely anything in the case (excluding the actual inspection made by the commissioners) which rises to the dignity of evidence in favor of this report. On the other hand the evidence is abundant and conclusive that the proposed scheme, if carried out, will result in irreparable public and private injury.

It is not necessary to quote the testimony; It is only necessary to distinguish the statements in favor of rapid transit generally from those in favor of this particular plan, to see that the determination of the commissioners is not in accordance with the weight of evidence. Can it be said that the evidence furnished by the inspection of the proposed routes by the commissioners should outweigh the sworn testimony of witnesses with equal or superior means of knowledge ? If that is the law, it would follow that in no case where the senses of the commissioners are made to testify could the court interfere to reverse their report upon the facts ?

The general rule is that the court will not review the decision of a commission as to the value of property requiring personal inspection, examination of witnesses and knowledge of the amount, character and situation of property taken; but this rule which arises out of the necessities of a multitude of controversies and dependent for a just settlement upon a minute investigation into details, was adopted in furtherance of justice, and not with a design to deprive the court of an exercise of its own judgment upon any great question of public policy squarely presented, or to prevent the court from rejecting a report leading to an undoubted private or public wrong.

“ Suppose, for example, this report had embraced every street in the city, could it be denied that the court could look into the merits and reverse a determination so manifestly wrong ? If this power exists in an extreme case, it exists also in one where the injuries and advantages are more evenly .balanced.

But it is not clear that we are acting in this matter purely in a judicial capacity. * This is not analogous to- a proceeding to condemn lands for railroads, streets or other public purposes. In these cases the power of eminent domain has already been exercised, and nothing is left for the courts but to assess by commissioners the amount of compensation to be paid. Take the case of a railroad company applying for a commission to assess damage for land required by it. The law has already conferred' upon the company the right to take the land necessary for its corporate purposes; but in this case the legislative grant of power to build the road has not been made. The condition («. e., the consent of' the property owners) has not been performed.

The appropriation of property for railway purposes is an exercise of the right of eminent domain. The power to exercise this right resides in the Legislature. It may be delegated by general laws to certain officers. An illustration of this is furnished in this matter where the question of the necessity of an elevated railroad and the details of its organization is delegated to commissioners to be appointed by the mayor.

The exercise of this right always involves compensation for property actually taken. The means by which the compensation is to be ascertained and made are judicial, but the determination of the necessity for the exercise of the power and the act of taking are not judicial acts, and cannot be made so by delegating the authority to decide this question to a court, to its judges or to their appointees.

If this is an administrative question and is so involved with danger to private rights and property that, from motives of public policy, the Legislature decided that, the approval of the General Term of the Supreme Court should be obtained, as a substitute for the consent of the property owners, before the right to construct the railway shall accrue, then it follows that the court, in determining the question, is bound to consider all the merits involved, and to do what the property ■ owners ought to have done, i. e., to confirm, if. the scheme can be accomplished with equity aud fairness, and to refuse, if that cannot be done.

In determining the intent of the people, as expressed in the constitutional provision upon this subject, it is important to keep in view the rule of law which existed at the time of its adoption, viz.: That only those whose property was actually taken could claim damages resulting from the exercise of the power of eminent domain. It was in view of this anomalous condition of the law that the constitutional provision and the rapid transit act were passed. They recognize the fact that rapid transit would be confined chiefly to the cities where the streets are in some instances owned by the municipal corporation, and are also under the control of the municipal authorities, and where the anomalous condition of things was most likely to operate with the utmost rigor upon private rights.

Recognizing the difficulties, the Legislature say by this enactment: We will not permit any corporation to build an elevated road along a pu’blic street upon the simple consent of the public authorities. We recognize the rights of the owners of abutting property, and the legislative power of eminent domain shall not be employed without the consent of at least one-half of these parties who are to be the most deeply affected thereby.

It is not the consent of the commissioners appointed by the mayor, nor the consent of the street authorities, nor yet the consent of the property owners which constitute the condition precedent to the legislative consent. It consists in a concurrence of all these elements. The consent of the last is as essential as all the rest. Hitherto the consent of the street authorities or the Legislature was enough, and the property owners were left to their remedy at law, if any they had; but that is not enough. The property owners must consent before the legislative authority attaches to the scheme. It therefore follows that before the consent of the property owners or its equivalent is obtained no question, except a purely legislative one, can arise.

The motive for this condition was the protection of the property owner from threatened injury to his property without a certainty of a remedy. This act recognizes the legislative power to legalize a structure which would otherwise be a nuisance. This is a power to inflict a remediless injury. It recognizes, also, the possible need of new and advisable improvements of this character.

In balancing the possible private dangers against probable public advantages of such improvement, the Legislature refers the ‘Flatter of its awn consent to the parties who are likely to .suffer, and arbitrarily provides that, if half of them approve, the plan may be executed. If they refuse, then the scheme is defeated until the justices of this court, among others, shall consent for them and in their place. In the light of these considerations, what is the substitute for this consent ? Does it consist in the determination of the commissioners, or in two things, both as much as either, to wit; the determination of the commissioners and the confirmation by the General Term ?

' There must be the determination and confirmation before the legislative consent is given. It is in this respect precisely as if the Legislature had authorized its own commissioners, instead of the mayor’s appointees, to examine the question of necessity to adopt plans, etc., and report the same back to the Legislature for its action. • In such case it is plain that until the Legislature itself consented to the building of the road, no judicial function could be exercised. If these views are correct, the act of confirmation precedes any judicial function.

It may be farther observed, that the clauses of this act which prescribe the duties of the mayor’s commissioners contain no provision for the confirmation of their determination. Their decision, upon whatever is delegated to them, is final and complete. This shows that the act of our commissioners was incomplete and worthless, until this court had determined the question for itself. Our “ confirmation ” is required. This is not a mere perfunctory duty, but implies an examination of the whole subject by which alone we are enabled intelligently to ratify or disaffirm their determination.

The confirmation of this court is a power reserved by the Constitution, upon the exercise of which the legislative authority to construct the road depends. Considering the question in this view, and adopting the determination of the mayor’s commissioners as if the same was embodied in a legislative enactment, it seems our duty to decide, as the Legislature might do if the question was referred back to that body for determination, whether a sound public policy requires a confirmation of this report.

The degree of public benefit which is likely to result and the amount of private injury which will be inflicted upon abutting owners from this scheme, if sanctioned, .and a comparison of these matters of fact are material elements in this determination. If the court is satisfied that the injury to be' inflicted upon private property and rights is so great and widespread as to clearly overbalance all possible benefits to be derived from its construction, then confirmation ought to be refused.

It is too apparent to require argument that a person may be grossly injured in his property when none of his legal rights are invaded. A familiar illustration is the building and operation of a street railway. But, in the case of the illustration put, the injury is very limited in extent as compared with that which this rapid transit project will entail. The noise, obstruction, deprivation of light and air and other kindred annoyances, will subject many private owners abutting the proposed routes to enormous losses .for which no compensation is provided.

It seems to us, whether we view this proceeding upon the evidence, in a judicial capacity, or in a broader sense of legislative commission, that the construction and operation of this road, under the proposed plan, will inflict injuries upon the property in front of which it will pass to such an extent as to outweigh the public interest and necessities in having this scheme carried out.

The constitutional provision and rapid transit act have been, carefully considered in the N. Y. Elevated R. R. Case, and the meaning thereof fully declared, except as to the question of the power of the General Term to examine and pass upon the merits of the report of its commissioners. The General Term in that case did confirm the report upon the merits.

It is not necessary to advert to the technical questions raised on this motion, as the foregoing views, if correct, are decisive of the whole matter. As this is a matter of great public concern, we deem it not improper to say that we are fully alive to the need of rapid transit in this city, and anxious that its citizens may enjoy all its advantages at the earliest practicable moment; but we cannot acquiesce in a wholesale surrender of so many important highways to so burdensome a structure, and in allowing the petitioner ninety-nine years in which to finish it, unaccompanied with any terms for the benefit or security of the public and private interests involved.

BARNARD, P. J., concurred.