20 N.Y.S. 448 | N.Y. Sup. Ct. | 1892
The action was to restrain the defendants from removing an abutment and a pier of the bridge which carried the tracks of the plaintiff’s railroad across Main street in the northern part of the city of Buffalo, otherwise spoken of in the case as North Buffalo and Buffalo Plains. The road was located and constructed in the years 1880-1882, by the New York, Lackawanna & Western Railway Company, a corporation duly organized under the general railroad act of this state, and in 1882 was leased by that, company to the plaintiff, which has ever since been in possession of and operating the same. In October, 1881, the plaintiff’s lessor obtained the assent of the city of Buffalo, by resolution of the common council thereof, duly adopted and approved, to the construction of its road on its located route across many streets of the city, which are named in the resolution, including Main street. The resolution provided, among other things, that the crossing
It was upon findings which embraced the foregoing facts that the learned court at special term based its conclusions of law, which resulted in the dismissal of the plaintiff’s complaint, to the effect (1) that the common council of Buffalo had no authority, under its charter, to grant permission to the plaintiff or its lessor to erect or maintain the abutment and pier or any other permanent structures in Main street, upon which it might erect a bridge; and (2) that such permission as was granted to plaintiff’s lessor by resolution of October 10, 1881, was rescinded by the resolutions above mentioned of Decernbér 12,1881, and January 16,1882. We do not think that either of these conclusions of law is well founded. It is the first of them to which the argument of the opinion below is chiefly addressed, and which is mainly relied upon by counsel for the respondent in support of the judgment. Both of „ these, arguments seem to proceed upon the assumption that the power to authorize the crossing of the streets of a city by the tracks of a railroad rests with the municipality itself;"that the right to make such a crossing is conferred by the city, and that the railroad company can acquire no greater right than the city can confer. But this is not the ease. It is the legislature alone that has the power to confer such rights in the streets of cities, as in the other highways of the state; and over them, so far as public rights alone are concerned, the control of the legislature is supreme. People v. Kerr, 27 N. Y. 188; Story v. Railroad Co., 90 N. Y. 122. Accordingly the right to construct its road across any city street which the route of its road may intersect is conferred by the general railroad act upon every railroad company duly er
Thus it appears that the plaintiff’s lessor did not derive its right to cross Main street with its tracks from the city of ¡Buffalo, but from the state of Mew York, and that it took this right subject only to the condition of obtaining the assent of the city of Buffalo by the vote of two thirds of its common council, and to'the duty of restoring the street to a state of usefulness not unnecessarily impaired. In the cases where the rule has been so strongly enforced that a municipality has no authority to create or permit a permanent obstruction to the use of it's streets or highways, there will be found to have been an absence of legislation conferring such authority. Such are the numerous cases, of which Callanan v. Gilman, 107 N. Y. 365, 14 N. E. Rep. 264, and Cohen v. Mayor, 113 N. Y. 532, 21 N. E. Rep. 700, are late and prominent examples, in which it has been held that a municipality has no authority to create or permit a nuisance, and that any permanent or habitual obstruction of a public street is a public nuisance. But no one will contend that any obstruction to a highway authorized by the legislature is a nuisance, nor that the legislature may not authorize such obstruction, where no private interest is invaded, even to the extent of compelling the discontinuance of the use of the highway as such. People v. Kerr, supra. These considerations are important as bearing upon both of the conclusions of law upon which, as we have seen, the judgment of the special term was based; because—First, the right, being conferred by act of the legislature, is subject to no limitations exóept those prescribed by that act; and, second, being"conferred, so far as the city is concerned, only on condition of the consentof the common council, it became absolute when that consent was given, and was not subject to revocation by any authority short of that by which it was conferred. The legislature confers the right subject to the assent of the city. That assent being obtained, the right becomes an absolute one, conferred by the legislature, and not by the city, and it cannot he revoked by any act of the latter.
■ But, further, the language of the provision of the general railroad act, which prescribes the manner in which the right shall be exercised, necessarily implies that the public use of the highway crossed may be to some extent obstructed, and its usefulness to some extent impaired. The requirement is that the street shall b"e restored to its former state, “or to such state as not unnecessarily to have impaired its usefulness.” It is not, therefore, every obstruction to the easement of the local public in the street by the construction of a railroad across it which becomes, ipso facto, a public nuisance, but only such an obstruction as is unnecessary to the exercise of the more important easement of the general public in the railroad to be constructed. People v. New York Cent. & H. R. R. Co., 74 N. Y. 302; People v. New York, N. H. & H. R. R. Co., 89 N. Y. 266; Post v. Railroad Co., 123 N. Y. 580, 26 N. E. Rep. 7. As we have seen from the findings of the court at special term, the consent of the city was originally given to the construction of the crossing in question by a. bridge leaving a clear roadway beneath it of not less than 28
Judgment reversed, and a new trial granted, with costs of this appeal to abide the final award of costs. All concur.