In re the Terminal Railway of Buffalo

122 A.D. 59, 106 N.Y.S. 655, 1907 N.Y. App. Div. LEXIS 2375

Opinion

McLennan, P. J.:

Two questions are presented by this appeal:

First. Did the Board of Railroad Commissioners have jurisdiction and authority to make the determination appealed from ? and,

Second. If it had such jurisdiction, did it properly exercise its discretion in the premises ?

The question of jurisdiction must depend upon the meaning and interpretation which should be given to sections 60 and 62 of the Railroad' Law. So far as it is important to note, section 60

* provides : “All steam surface railroads hereafter built, except' additional switches and sidings, must be so constructed as to avoid all public crossings at grade whenever practicable so to do.” We think this provision of the statute cannot be and ought not to be construed to mean that the Board of Railroad Commissioners may not determine how or in what manner “ additional switches and sidings ” may be taken over a highway when the railroad company asks for such a determination. It would seem clear that the exception, “ additional switches and sidings ” was made in favor of the railroad corporation, and that when such exception was waived by them no other party interested could object how the same should be located or constructed as to a highway crossing. ' It seems to me evident that the purpose of section 60 is to confer upon the Board of Railroad Commissioners authority to eliminate steam railroad crossings at grade, and that such power includes the elimination of sidings or switches, especially where the railroad company concedes that the Board of Railroad Commissioners has or may have jurisdiction to deal with such situation. In other words, we think the words in the statute “ except additional switches and sidings ” refer to an exception which is available., only to the railroad company seeking the benefits of the provision of the statute. Section 62 of the Railroad Law† is very broad and comprehensive. It provides in substance that any town within which a street is crossed by a steam .surface railroad at grade or any railroad corporation crossing such street may make application to the Board of Railroad Commissioners for an alteration in such crossing, its approaches, the method of crossing, the location of the highway or crossing, the closing and discontinuance of a highway crossing and the diversion of the travel thereon to another highway'or crossing, etc., practically giving to the Board of Bailroad Commissioners in the first instance complete jurisdiction to determine how and in what manner the situation existing should be met, to the end that the interests of the public might be conserved in the premises. We can conceive of no broader power that could be delegated to a governmental agency than that which is delegated to the'Board of Railroad Commissioners under section 62 of the Railroad Law in so far as it is sought to regulate the manner in which grade crossings of railroad tracks by highways may be eliminated and the methods employed to effect such result. By the language of the section the Board of Railroad Commissioners has the right to close a highway, to divert its travel to another highway, to change the grade of either, to carry either over or under the railroad, and, so far as we can discover by the language of the act, is given absolute power in the premises, subject only to review by the appellate court and by the Court of Appeals.

In the case at bar we think the Board of Bailroad Commissioners had ample power and authority to make the determination which it did; that it had the authority upon the facts alleged in.the petition to say that a certain highway should be discontinued, and that the traffic upon it should be diverted to another highway which such Commission determined should be carried over all the tracks of the petitioner by means of a viaduct. It would seem absurd to hold that if two, three or four streets parallel to each other, extended across a number of railroad tracks, any and all of which were dangerous to public safety, that under the law the Board of Bailroad Commissioners must decide that in order to avoid such dangerous situation a viaduct must be constructed over the tracks of such railroad in line with each of such highways. We think the reasonable construction'is that the Board of Bailroad Commissioners has jurisdiction to determine how many of such viaducts should be constructed and that the traffic upon the other streets should be diverted into such viaducts or means of crossing the railroad tracks, especially when, as in this case, it is stipulated that the railroad company shall pay all experisés of construction because of such change and also the damages resulting therefrom to any property owners, if any.

The manner of crossing petitioner’s railroad tracks by the highways involved, the width of the viaduct and the closing of other streets, were all matters properly within the discretion of the Board of Railroad Commissioners upon all the evidence discloseid by the record, and .no situation or circumstance has been pointed out by .the able argument of the appellant which leads us to the conclusion that the discretion exercised by the Board of Railroad Commissioners, as evidenced by its determination, is contrary to .or against the weight of the evidence, and for that reason should be reversed by this court. The situation was a complicated one. Clearly it was a situation which was dangerous to the public and to public travel. So far as we can discover, the solution arrived at by the Board of Railroad Commissioners was, all things considered, the best which could have been devised ; that at least it cannot be said that there was any abuse of discretion in the premises.

We conclude that the determination and order appealed from should in all things be affirmed, but without costs to either party.

All concurred, except Reuse, J., who dissented.

Determination of the Board of Railroad Commissioners affirmed, without costs.

See Laws of 1890, chap. 565, § 60, added by Laws of 1897, chap. 754.— [Rep.

See Laws of 1890, chap. 565, § 62, added by Laws of 1897, chap. 754, and, amd. by Laws of 1899, chap. 359.— [Rep.