72 N.Y.S. 992 | N.Y. App. Div. | 1901
The plaintiff is the owner of property abutting upon Union street, in the borough of Brooklyn. He brings this action to restrain the defendants from constructing and operating a double-track trolley street surface railroad on this street, upon the ground that the consent of the owners of one-half in value of the property bounded on the street had not been obtained and recorded. The defendants denied this allegation, and alleged that they had obtained and recorded such consents; and, after a trial extending over several days, the learned court at special term decided that the defendants had acquired all of the rights required by the statute, and judgment was entered dismissing the complaint on the merits. From this judgment, appeal comes to this court.
We have followed the very able argument of the appellant’s attorney, and have examined in detail the authorities cited, but we are unable to discover any sufficient justification for the reversal oí
The first point raised by the plaintiff is that the court erred in holding that the plaintiff had not on the first day of the trial made a prima facie case sufficient to put defendants to the proof of their alleged consents. The plaintiff proved his title to the abutting land, proved the proceeding then pending argument in the court of appeals, in which the defendant the Nassau Electric Railroad Company, in an application for commissioners under the provisions of section 18 of article 3 of the constitution, and section 94 of the railroad law, had alleged that it was unable to secure the necessary consents, and then rested. The theory of the plaintiff is that, having established these facts, the burden of proof was shifted upon the defendants, and that it was incumbent upon them to prove that they had the necessary consents.
In order to understand this case, it is necessary to recite some of the. history of the defendants: In June, 1892,-the Union Rail
Keeping these facts in view, and remembering that the defend.ants had furnished the plaintiff with a statement of the consents upon which it relied, in the nature of a bill of particulars, which embraced the consents originally given to the Union Company, with others granted to the Nassau Company, we are of the opinion that it was not error for the court to hold that the plaintiff had not established a prima facie case. The consents were made in the usual form, “acknowledged and proved as are deeds entitled to be recorded”; and section 91 of the Railroad Law provides that the—
“consents oí property owners heretofore obtained to the building, extending, operating or change of motive power shall be effectual for the purposes herein mentioned and may be deemed to be sufficiently proved and shall be entitled to be recorded, whenever such consents shall have been signed, executed or acknowledged before an officer authorized by law to take acknowledgments of deeds, or before or in the presence of a subscribing witness, and without regard to whether or not . the subscribing witness shall have affixed his signature in the presence of the subscriber: provided that the proof of such signing, execution or acknowledgment shall have been made by such subscribing witness in the manner prescribed by chapter three, part two, of the Revised Statutes.”
These consents, which recite ownership in the individual making them, come within the provisions of this statute, and are entitled to be recorded. They are therefore sufficient, upon the face of the
The second point urged by the plaintiff is that the court below misapprehended the nature of the effect of an abutting property owner’s consent to the construction of a street surface railroad, and in support of this contention it is urged that such consents are a mere license, revocable at will, and revoked by a conveyance of the property, at least before the construction of the railroad, or else that they amount to an abandonment of the abutter’s easement in the street, where the abutter does not own the fee thereof, or a grant of an easement or right of way in the street, where the abutter owns the fee subject to the ordinary use of the highway. In the second and third cases we are told that such consents are revocable prior to the construction of the railroad, and are subject to the recording act. If we read and catch the • spirit of the constitution and the statute aright, these consents are not mere licenses to be revoked at will, or by the transfer of the property before the construction of the railroad; nor do they contemplate a conveyance of real estate, so as to bring them within the provisions of section 241 of the real property law, as defined by section 240 (chapter 547,.
“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 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.”
The legislature, in giving effect to this provision, has passed a general law (section 91 of the railroad law) which would seem t© preclude any special legislation affecting this question, though we do not find it necessary to decide this point, which provides that:
“A street surface railroad, or extensions or branches thereof, shall not be built, extended or operated unless the consent in writing acknowledged or proved as are deeds entitled to be recorded, of the owners, in cities and villages, of one-half in value, and in towns, not within the corporate limits of a city or village, of the owners of two-thirds in value, of the property hounded 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.”
That the legislature regarded these consents as something more than mere licenses is plainly evidenced, not alone by the formalities required, making them not only capable of being recorded, but competent evidence (sections 933, 937, Code Civ. Proc.), but by the provision for preserving indefinitely the life of such consents as had been granted prior to the adoption of the statute. This, it seems to us, is a complete answer to the suggestion that the law contemplated that such consents should be secured at a given time, for it clearly provides that:
“Consents of property owners heretofore obtained to the building, extending, operating or change of motive power shall be effectual for the purposes therein mentioned and may be deemed to be sufficiently proved and shall be entitled to be recorded, whenever such consents shall have been signed, executed or acknowledged before an officer authorized by law to take acknowledgments of deeds, or before or in the presence of a subscribing witness,” etc. Section 91, Railroad Law.
“Perhaps the consenting party might Withdraw his consent if he had given it without any valuable consideration, and if the other party had done nothing under it so that its position would not be unfavorably affected by such withdrawal.”
But this was before the amendment to the Railroad Law in 1895, above'cited, and cannot be controlling here, even were it assumed
We are of the opinion that the consents, issued to the Union Company were available to the Nassau Company, under the facts existing. If these consents were property,—and we think they were,—they belonged to the Union Company. It had an existence sufficient at least to own the consents which were presumably secured at its solicitation and expense, and it is hardly profitable at this time to consider collaterally whether the merger of the Union and Nassau Companies was lawful. It is not disputed that the Nassau Company owned all of the stock of the Union Company at the time of the merger, and we think, for the purpose of sustaining the judgment, it may be presumed that the companies acted in a lawful manner. At least, the Union Company has ceased to have a separate existence, and its property equitably belongs to those who own the stock, so that the plaintiff can have no superior equities in the premises, and is not entitled to the relief demanded.
We have already pointed out that the Nassau Company, after the merger, might be in a position to secure a majority of the abutting owners, where it would previously have been impossible, and that its declaration in the moving papers in the application for commissioners did not necessarily estop it from alleging that it had such consents. But it does not seem necessary to consider this point, as the court of appeals has reversed the order in- that application, leaving the question open. In re Nassau Electric R. Co., 167 N. Y. 37, 60 N. E. 279.
We are unable to find any reason pointed out why the plaintiff is entitled to an injunction restraining the construction of this rail
The judgment appealed from should be affirmed, with costs. All concur; HIRSCHBERG, J., in result.