61 N.Y.S. 420 | N.Y. App. Div. | 1899
This is a motion upon the return of an order to show cause why a temporary injunction granted herein, restraining the defendant from constructing or operating its railroad on any street or avenue in the town of Eastchester, in the county of Westchester, should not' be continued. The motion to continue the temporary injunction is rested upon two grounds: First. That the consent given by the commissioner of highways of the town of Eastchester to the predecessor of the defendant to construct, maintain, and operate its railroad was subject to a condition that such road, its branches and extensions, should be completed and in running order by the 1st day of January, 1897, else the franchise based upon such consent should cease and determine. It is claimed that this condition was not complied with, and in consequence the predecessor of the defendant forfeited its right to construct the road, and that the defendant has acquired no other or different right than it possessed, and is therefore without authority in law to construct its road. Second. That, even though it possesses such authority, yet it has failed to obtain the consents of the owners of two-thirds in value of the property bounded upon the street where it is presently engaged in constructing its road. If either or both of these contentions are well founded, then it follows that the plaintiff established a case entitling her to have the temporary injunction continued.
The determination below in favor of the defendant proceeded upon the ground that.the consent vested in the defendant an absolute franchise, which, having been once vested, could not be devested by a condition subsequent, and that a breach of such condition did not work a forfeiture of the franchise. This holding proceeded upon the general doctrine that the breach of a condition subsequent, which is malum prohibitum only, does not defeat the vesting of an estate, as it is in its nature repugnant to the estate which has been granted; and this doctrine is undoubtedly the law, as stated by the learned court below. It does not follow, however, as is recognized by the learned court, that executory conditions which the party has the right to impose upon the right or estate which it grants may not be enforced, or but that, upon failure to perform such condition, the grantee becomes devested of the estate which he has received. The court held, however, that the condition which we have heretofore quoted was not within the power of the highway commissioner of the town to impose, that for that reason the condition was void, and the consent vested in the railroad company an absolute franchise. This ruling proceeds upon the ground that, by virtue of the provisions of sections 93 and 99 of the rail
The question which confronts us is whether the legislature, in the exercise of its authority, has imposed an absolute rule of limitation as to the time within which a railroad shall be constructed after it has obtained the consent of the proper authorities for its construction, or whether the persons or body authorized to give the consent may impose a condition that it shall be constructed within a shorter time. It is to be observed, in construing this statute, that by its terms a forfeiture may be' worked unless the railroad constructs within the period limited thereby. There is nothing in the statute which places any limitation whatever on the time when the construction must be made. Its provision is that unless within the given period it does construct such failure may work a forfeiture. If the persons or body possessed of the power to give consent may not impose any condition, then such persons or body are limited in authority to grant or deny. But such is evidently not- the purpose of the statute; for therein is reserved the right to secure the construction, completion, and operation of the railroad within any time not exceeding the period prescribed' by the statute, and also upon such further conditions as will be for the public interest. It would seem as if, by the very language of the statute, a condition might be imposed by the persons or body giving the consent in respect to the particular matter of construction, the only limitation thereon being that they would not be authorized to extend the time beyond three years, the period prescribed by the statute; and such seems to be the clear reading of section 93 of the railroad law. If, however, we limit the authority granted by the statute to impose the condition to such as may be for the public interest, which is clearly conferred, then we come to the consideration of whether the imposition of a condition that the railroad shall be constructed within a shorter period than that provided by the statute is against public policy. So far from being in contravention of the public policy of the state, we think it may clearly be upheld thereunder. The evident purpose of the statute, which provides that a forfeiture may be worked if the construction be not made in three years, was, among other things, to prevent speculation in franchises by corporations
It is to be borne in mind that no railroad company is required to take any franchise. Ho compulsory process can be issued which compels it to construct a railroad, unless it voluntarily assumes such obligation. It does not commend itself to good morals to permit a corporation to accept a franchise with a full understanding of its terms, and which it has been the moving party in obtaining, and then permit it to violate the condition upon which it was granted, deprive a community of that which it had the right to expect, inconvenience the public, and then say that the condition imposed was void, as being against public policy. As we view the statute, and the purpose which it sought to accomplish, we think that its proper sonstrúction is to confer upon the persons or body authorized to give the consent the authority to impose a condition requiring it to construct its railroad within a less period than the limit prescribed by the statute; and as the railroad is in no sense misled, and is the moving power in securing the consent, it does not lie in its mouth to ' say that the condition which it voluntarily assumed is void and unenforceable. We have recently had occasion to examine this question in principle, and have reached a conclusion, in consonance with the views above expressed. Gaedeke v. Railroad Co., 43 App. Div. 514, 60 N. Y. Supp. 508. In adopting such view, we but followed
While the language of the twelfth clause of the consent is broad enough in terms, ipso facto, to work -a forfeiture without any legal proceeding, yet we apprehend that such force and effect should not be given to it. It may very well be that conditions have existed which furnished a legal excuse to the railroad company for not complying therewith. It was competent for the commissioner giving the consent to waive exact compliance with its terms. It is possible that the persons seeking to take advantage of the forfeiture should themsélves be estopped from insisting upon it, and, as the defendant may make a case which will relieve it from the condition thus
We are also of the opinion that the defendant has not met the affidavits of the plaintiff, which specify in detail wherein the defendant has failed to obtain the consent of the owners of two-thirds in value of the property bounded upon the street where it is engaged in constructing its road. The defendant was charged with the duty of obtaining these consents, and it must be presumed to be possessed of knowledge and of the consents which gave it the right to construct the railroad in this street. As it had no right or authority to construct until it obtained such consents, when challenged as to its right in this respect it imposes no harsh rule to compel it to produce and clearly establish such authority. The affidavits of the defendant in this respect do not fairly meet the case made by the plaintiff. Its answer is mainly in the nature of an argument based upon its right to have certain public property credited to it in the valuation, the confusion existing in the assessment roll, and an attack upon the plaintiff’s figures from which her conclusion is derived. Giving full force to all that has been said, we are unable to determine from the papers whether the defendant has the consent of the requisite number of property owners upon this street authorizing it to construct its road; and, in view of the direct statement contained in the plaintiff’s affidavit, we think it was incumbent upon the defendant to make clear proof of its authority in the premises. In view of the fact that the road has been constructed beyond the premises of the plaintiff, we should have been inclined to the view that all of her rights would have been protected from further injury by restraining the defendant in the operation of its road; but taking into consideration the condition, and its effect, as we have already discussed, we think a case was made where the plaintiff was entitled to the continuance of the injunction pending the trial, of the action. It follows that the order should be reversed, and the temporary injunction be continued during the pendency of the action.
Order reversed, with §10 costs and disbursements, and injunction continued, with §10 costs to abide the event. All concur.