Vann, J.
The project of the petitioning railroads was resisted by landowners whose premises abut upon that part of Atlantic avenue which lies substantially between Bedford and Nostrand avenues. The original right of way of the appellants never covered any part of Atlantic avenue in front of the lands of the respondents. In that locality all the rights which the railroad companies ever had to the so-called “thirty-foot strip,” which embraces their present right of way, came through a tripartite agreement, dated April 10,
1855, executed by the Brooklyn and Jamaica Bailroad Company, as party of the first part, the Long Island Bailroad Company as party of the second part, and the City of Brooklyn as party of the third part. That instrument provided for making an avenue 120 feet wide, from Flatbush avenue to the city line, out of portions of the old Atlantic street; the railroad strip west of Classon avenue ; the proposed but unopened Schuyler street, and additional land to be condemned by the city on the north side, east of Classon avenue. It contains many mutual stipulations, and, among others, the following: The parties of the first and second parts agreed to convey to the party of the third part, if authorized by the legislature, “ the strip of land fifty feet in width now owned by the party of the first part and occupied by the railroad tracks, extending from the westerly side of Franklin avenue to the easterly line of the present city limits, provided, however, and upon this express condition, that the parties of the first and second part shall forever have the exclusive right to use and occupy a strip or space of the width of thirty feet in the center of said Atlantic Avenue as so extended and in the center of Schuyler Street, as thus widened, from the intersection of Atlantic Avenue to the easterly line of the city as thus widened, for the purpose of railroad tracks and turnouts and the running of locomotives and cars thereon without interruption'or molestation.” Upon “the cession and conveyance” aforesaid and when Atlantic avenue should have been laid out and graded, the party of the second part agreed “ to remove the rails from the strip of land so to be ceded and to lay the necessary tracks in that portion of Atlantic Avenue so extended and in Schuyler Street as so widened.” Bo part of the agreement was to be binding upon any party until the Legislature authorized the three corporations to carry it into effect. Adequate authority was given by chapter 415 of the Laws of 1855, by which the tripartite agreement was “ ratified and confirmed, together with all the clauses and covenants therein contained.”
The statute further provided that the city should hold the strip of land to be conveyed to it “ in fee simple absolute,
subject only to the terms of such agreement and the provisions of ” the act. Chapter 220 of the Laws of 1853, which led to the tripartite agreement, was repealed
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so far as the same is inconsistent with this present act * * * and,” as the statute continued, “ after the said avenue and street shall be actually laid out, extended and widened, as hereinbefore provided, and the report of said commissioners finally confirmed, the street now known as Atlantic Street in said city, together with said avenue as so extended, and Schuyler Street as so widened, shall be known and distinguished by the name of Atlantic Avenue.”
There was nothing in the act which provided in terms what title the railroad company should take to the “thirty-foot” strip, not yet acquired but which was to be acquired by the city and which the company was to have the exclusive and permanent right to use and occupy for railroad purposes, not by way of reservation, but by grant or license from the city.
The companies and the city complied with the provisions of this agreement, and the object of the various acts and instruments was thus accomplished. All the land east of Olasson avenue, which, for a distance of about five miles and for the entire width of 120 feet, was converted into an extension of Atlantic avenne, was at the date of the agreement farming lands, owned by private individuals. This land was acquired by the city by purchase and condemnation pursuant to the statute, including the lands in front of the abutting owners, who now resist the ■ application of the companies and whose rights alone are involved in the present controversy.
The final result was a grand avenue, 120 feet wide, with a “thirty-foot” strip in the center for the use of the railroads, and a driveway forty five feet in width on either side thereof for the use of the public generally.
It is apparent from reading the tripartite agreement in connection with the act of 1855, that it was the intention of the legislature to confer upon the corporations concerned adequate power to part with and acquire such property rights
as were necessary to carry into effect che scheme in contemplation. The land was appropriated by the state to a public use, with the right on the part of both city and railroad to take and hold such interests as the legislature deemed necessary to effect the widening and extension of Atlantic avenue. The powers granted to the railroad companies, however, were in derogation of common right and according to the settled rule in such cases, included no privilege except those expressly authorized, or such as were necessary to accomplish the general purpose of the legislature. That purpose was to widen and extend Atlantic avenue by, among other things, appropriating land for the benefit of the city and permitting the city to give the railroad companies and the latter to accept a right of way over a part, thereof, in accordance with an agreement already made between them,' supported by a full consideration. The companies did not need the fee to the
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thirty-foot ” strip. A perpetual easement or right of way was all that was necessary to satisfy every use then in view. The rule, of limitation already mentioned, therefore, would confine the title to an easement unless the language of the legislature, which adopts the words of the tripartite agreement, clearly calls for a fee.
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A doubt as to the extent of the power, after all reasonable intendments in its favor * * * should be solved adversely to the claim of power.”
(Matter of N. Y. & Harlem R. R. Co.
v.
Kip,
46 N. Y. 546, 552.) The language of the contract, carried forward into the statute, gives to the railroad coinpanies “ the exclusive right to use and occupy the thirty-foot strip forever for the purpose of railroad tracks and turnouts and running locomotives and cars thereon without interruption or molestation.” This does not
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clearly ” describe a title in fee, but with greater clearness describes an easement, which was all the railroads needed, and according to the principle of strict interpretation governing the subject, was all they-took. The legislature did not intend to create nor permit the parties interested to create two streets named Atlantic avenue, each forty-five feet wide, separated by a parcel of land belonging to the rail
road companies in fee and forming no part of the public highway. The intention of both contract and statute was to create a noble avenue 120 feet wide, subject to an easement for railroad purposes over the central portion. Such land as was to be acquired by the city from individual owners and incorporated into the avenue, including all that upon which the lands of the respondents abut, was not to be acquired for railroad purposes, but for highway purposes; and when acquired it was by virtue of the tripartite agreement and the statute made subject to a right of way over a part thereof for the use of the railroads. While it is true that the commissioners appointed in the proceeding to open Atlantic avenue east of Franklin street were bound to include and are presumed to have included in their award to parties whose land was taken, all damages to the abutting premises caused by the use of the
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thirty-foot ” strip for the railroad purposes in contemplation, still an appraisal of such damages was required whether a fee or an easement was to be given to the railroads, and whether the use was for both highway and railroad purposes or railroad purposes only. The anomaly of a statute authorizing a city to condemn land solely for railroad purposes, or for the exclusive purpose of conveying it to a railroad company in fee, is avoided by the more reasonable construction that the city was authorized to condemn for highway purposes, with the statutory as well as contractual obligation to give the railroad company a right of way for its railroad. The legislature authorized the appropriation of land in order to widen and extend a street, not to change the location of a railroad. A street purpose was its primary object in taking the land, and the railroad purpose was secondary and incidental. This accords with the title of the act in question,
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authorizing the common council of the city of Brooklyn to widen and extend Atlantic Avenue and to widen Schuyler Street in the city of Brooklyn, and to ratify and Confirm an agreement therein mentioned between the said city and the Long Island Eailroad Company and the Brooklyn and Jamaica Eailroad Company:”
The title that the railroads took to the “ thirty-foot ” strip west of Bedford avenue rests upon facts differing from those governing the subject east of that avenue and that question is not directly before us."
Atlantic avenue, as thus widened and extended, has existed for more than forty years, but during most of that period it has had an uneasy history. Legislation of various kinds has rested upon it like a shadow. The right of the railroads to use steam as a motive power was first suspended and then restored. (L. 1859, ch. 484; L. 1876, ch. 187.) Substantial iron fences to shut the “ thirty-foot ” strip off from the rest of the avenue were at one time required, as well as gates at many of the street crossings. Owing to the extension of the city and the enormous increase in its population the railroad was no longer welcome in the center of the avenue and there was much opposition to steam as the motive power after its use was restored. All parties seem to concede that, as the result of years of agitation, an act was passed in 1896 “to authorize the appointment of a commission to examine into and report a plan for the relief and improvement of Atlantic Avenue in the city of Brooklyn.” (L. 1896, ch. 394.) This act required five commissioners, when appointed by the mayor, to “ inquire into the condition of Atlantic Avenue in said city with reference to the railroads operated thereon,” and to “ formulate a plan for the relief of said avenue and the improvement of the same.” The plan was to be reported to the mayor who was required to “ cause a bill to be prepared to carry out said plans and recommendations and” to “present the same to the legislature at its meeting in the year 1897.”
This was followed the next year by a statute known as the Atlantic Avenue Improvement Act (L. 1897, ch. 499). The primary command of this act was to so change the grade of the railroad tracks on the “ thirty-foot ” strip as to elevate and depress the same so that they should no longer rest on the sui-face of the street. This was to be done by depressing the grade in some places
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so that the existing surface railroad tracks shall be below the surface of Atlantic Avenue at such
depth as to allow the complete restoration of the surface of said Atlantic Avenue, free from steam railroad tracks, fences, gates, signal posts or other appurtenances of such steam railroad now existing thei’eon.” In other ¡places “ the said right of way and railroad tracks ” were to be “ used and operated in an open cut, with proper retaining walls and of width not greater than the present right of way in possession of said railroad companies, the grade of said tracks and right of way rising gradually until they reach ” a point named and from that point “the said railroad tracks shall be removed from the surface as now operated, and raised by convenient grades on suitable and sufficient structures * * * not less than fourteen feet above the street surface. * * * The said railroad tracks shall run on an elevated steel structure" over the right of way of said railroad companies as now in possession at such grade elevation that they shall cross over all intervening streets and avenues at such grade as to leave the same unobstructed on the surface, and open to the free passage of pedestrians and vehicles with a clear height at each crossing of not less than fourteen feet.”
In other words, the statute provided that the railroad tracks as they were when the act went into effect, should be physically removed from the surface of Atlantic avenue and placed at some points sixteen feet below the surface and at others upon elevated tracks at least fourteen feet above the surface, with an open cut to make the transition from the underground to the elevated structure. The companies were authorized to erect stations and platforms on either side of the railroad at any points along the tracks as depressed to take the place of those existing on the surface. It was required that such stations should be below the surface of the street and that the use thereof when constructed should “ in no way interfere with the grade of Atlantic Avenue, or the free use of said avenue by the public save so far as the same may be affected by the supports for stations along the elevated structures hereinabove provided for.”
The act further provided for a board whose duty it was to
direct and superintend the construction of said improvement by the company, and the expense, not exceeding $1,250,000 on the part of the city, was to be borne one-half by the city and the other half by the railroad corporation. The expense of erecting the stations, however, was not to be included in the cost of the improvement.
It was also enacted that “ said depressed right of way and tracks and the elevated portions of said railroad * * * shall be employed for the uses and purposes of the said The Long Island Railroad Company to the same extent and as fully and completely as the railroad at present constructed which is operated by the said company.” The operation of passenger trains was to be by some power other than steam, except that steam locomotives might be used to move freight trains, and in cases of emergency passenger trains also. The final command, of the legislature as addressed to the railroads was as follows: “ When completed, the Long Island Railroad Company, as the lessee of the said Atlantic Avenue Railroad Company of Brooklyn, its successors or assigns, are authorized and directed to run their trains over the said improvement * * *, as constructed and authorized by law.”
In view of the situation when the act was passed, and the language used by the legislature, it seems clear that the intention was to remove all railroad tracks from the surface of Atlantic avenue.0 While the term "steam railroad” appears in both title and text, that was merely a description of the obstacle to be done away with, and no permission to put another in its place was given directly or indirectly. “ The existing surface railroad tracks ” were to be
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removed from the surface as now operated ” and put below or raised above the level of the street. The improvement was to leave the avenue
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unobstructed on the surface and open to the free passage of pedestrians and vehicles.” There was to be a
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coin píete restoration of the surface of'Atlantic Avenue.” The depression was to be at a safe distance, not less than sixteen feet, below the surface, and the elevation at a safe distance, not less than fourteen feet above, sufficient in each case
to permit the untrammeled use of the avenue for highway purposes. The surface of the street was to he free from the railroad, its tracks, fences, gates, signal posts and the like. The situation was to be completely changed. The old things were to pass away and the avenue was no longer to be a surface railroad street.
The improvement was made and paid for as required by the act. The double tracks authorized by the charters of the railroad companies were removed bodily from the surface of the avenue and placed above or below throughout its entire length. The railroads accepted the change and thus surrendered possession of the surface of Atlantic avenue. All trains are now run upon tracks which have been moved away from their former location as completely as if they had been transferred into another street.
The railroad companies, however, claim the right to lay new tracks on the surface of the avenue in order to operate a trolley line thereon, alleging that it is needed as a “ feeder ” to the other line. To quite an extent this would restore the evil which, after prolonged discussion, with much difficulty and great expense, was removed by the express command of the legislature. They found their claim on a general act passed in 1899, entitled “ An act to regulate the use of lands forming part of the right of way of any railroad company, the road of which has been removed from the surface in, or adjacent to, streets and highways in all cities of the first class in this state.” (L. 1899, cli. 497.) It provides that “ whenever the right of way, grade or tracks of any steam railroad company in or adjacent to any street or highway in any city of the first class are required by law to be changed or altered by elevating or depressing the same for the purpose of discontinuing the use of steam power upon the surface of such highway or street, such alteration or change of grade shall not be deemed to curtail or affect any right which such railroad company or its lessees or assigns may have to maintain and operate a surface passenger railway within the limits of the right of way so depressed or elevated, and over and under
the railroad tracks so depressed or elevated, with all turnouts, sidings and tracks necessary to secure the continuous connection and operation of such surface railroad.”
At the three points of transition between the depressed and elevated tracks, the companies allege that in order to secure a continuous connection and operation of their proposed trolley line it is necessary to occupy portions of Atlantic avenue outside of the “ thirty-foot ” strip for the distance of about one mile in the aggregate. As they were unable to obtain the consent of the majority of the owners of property abutting on said turnouts, they made' the application now before us to the Appellate Division of the Supreme Court. That application was denied, but the learned court did not favor the parties or ourselves with their reasons for this important decision, affecting many interests, both public and private.
The respondents claim that if the acts of 1897 and 1899, when read together, authorize the construction of a trolley road on the surface of Atlantic avenue, they violate the Constitution of the state by permitting the construction and operation of a street railroad, without the consent of the requisite number of abutting owners and of the local authorities in charge of the street, neither of which the appellants have.
(Matter of Third Avenue R. R. Co.,
121 N. Y. 536, 541.)
The Constitution provides that the Legislature shall not pass a private or local bill “ granting to any corporation, association or individual the right to lay down railroad tracks,” or “ granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever.” The Legislature, however, may “pass general laws providing for ” these cases and for all others “ which in its judgment may be provided for by general laws.” The power even to pass general laws relating to the cases named are subject to the limitation that “ no law shall authorize the construc'tion 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 he 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.”
The consent of the property owners, or if that cannot be had, the consent of the Appellate Division, is not enough, for the consent also of the local authorities is an absolute prerequisite to the construction or operation of a street railroad.
If the railroad that was removed from the surface of Atlantic avenue and the new line proposed to be constructed where the old line stood, are two railroads, each physically independent of the other, although owned in common, it is obvious that the legislature had no power to authorize the construction or operation of the latter, for it is restrained by the Constitution from granting a franchise to lay down railroad tracks. It is necessary, therefore, to see what vras the purpose and effect of the two acts.
The learned counsel for the appellant claims that the purpose of the act of 1899 was “ to put to rest any question that the Atlantic Avenue Improvement Act had affected the right of the petitioning companies to use their right of way over the depressed or under the elevated railroad for railroad purposes ; ” that it embraced “ the grant of a franchise in the adjoining portion of a highway to construct such turnouts as might be zzecessazy to znake such tracks a continuous line; ” that the operation of the proposed trolley upozr the surface of the old zight of way is ziot a new railroad, and that “ the act of 1899 was constitzztional and repealed all restrictions upon the use of this sti-ip by the Lozzg Islazzd Bailroad for an electz-ic surface passenger line, if any such was contained in the Atlantic Avenue Improvement Act.”
The claim that the special charters of the Brooklyn and Jamaica and the Long Island Railroad companies, hy authorizing “ a railroad with a single or double track, and with such appendages as may be deemed necessary for the convenient use of the same ” (L. 1832, ch. 256, and L. 183é, cli. 178), permitted the use of a trolley line before the constitutional provision above quoted was adopted, is involved in the primary and controlling question whether the proposed trolley line in a new road or merely an appendage or part of an old road, such as the addition of a third rail might he. Perhaps a more accurate statement of the question would be to ask whether the effect of both acts is to put two railroads in a street where there was hut one before. Were it not for the limitation in the charters of the companies there would be some reason for holding that even a third track should not be regarded as a new road. Such a track would have so intimate and inseparable a connection with the road as to give color to the claim that it was a part thereof. Such, however, is not the situation presented by this appeal. Here we have two roads, not of the same kind or on the same level. One is wholly an underground or elevated road for through travel, reaching far into the country and with no surface grade until the city boundary is passed, while the other is an ordinary street railroad, built on the surface, for local traffic within the limits of the city. Each road is an independent entity, existing by itself, operated by its own method, with its own tracks, signals and appliances, which are used exclusively by itself. Each may be separately owned, sold, mortgaged and managed. Neither has any physical connection with the other. Annihilate either and the other continues to exist in the same condition as before, with every power and capacity unimpaired. Neither trains nor cars can be transferred from .one to the other. They need not be of the same gauge, although doubtless they are. A surface railroad is separate and distinct from an underground or overhead railroad, even when directly over the one or under the other. Neither is part of the other, but each is an entirety
in itself. The subject is so controlled by perception and cognition as to make rules of logic difficult of application. Describe the roads, and two different tilings appear before the mind, as distinct as the right hand from the left; the one a surface railroad and the other an underground or overhead railroad, and neither belonging to or connected with the other.
We think that the effect of the two statutes was to authorize two roads in Atlantic avenue where only one existed before, and the last to be constructed is a street railroad, to which the Constitution so pointedly applies. The appellants have no right to construct or operate a trolley line on the surface of Atlantic avenue past the property of the respondents, and, therefore, the application to appoint commissioners to determine whether sidings and turnouts should be constructed in aid thereof was properly denied.
The order appealed from should be" affirmed, with costs.
Cullen, Ch. J., Edward T. Bartlett, Hiscook and Chase, JJ., concur; O’Brien and Haight, JJ., dissent.
Order affirmed.