48 N.Y.S. 842 | N.Y. App. Div. | 1897
The plaintiff’s road has been constructed and is in operation between the termini mentioned in the preceding statement of facts, running its cars over defendant’s.tracks. It appears by a report of this case in 90 Hun, 9, and 152 New York, 632, that March 20,1895, an order was entered denying the defendant’s motion to vacate an order previously made by the Special Term, pursuant to chapter 239 of the Laws of 1893, permitting the plaintiff to lay its tracks across defendant’s road upon giving an undertaking as prescribed by that act. This order was affirmed by the General Term (90 Hun, 9) arid by the Court of Appeals on the opinion of the General Term (152 N. Y. 632). In considering the appeal from that order it was held that it appeared that the plaintiff was duly organized, had served its petition for the appointment of commissioners, and that, so far as it appeared, the organization of the plaintiff, and the preliminary proceedings following it were regular and valid, and that it was in a position to insist upon the statutory right to cross the defendant’s tracks. The effect of these adjudications would seem to be that the plaintiff was in a position to enforce the statutory right of a new railroad to cross an existing one, and that nothing was left for determination except the mode of crossing, and the compensation to be paid therefor. Flowever, these" orders are not contained in the record before this court, which has no knowledge of their terms, and it is not asserted by the plaintiff that by these orders its right to cross defendant’s tracks has been established in this very proceed-
It must, I think, be regarded as settled by the decisions of the courts of this State that the consents of abutting owners and of the local authorities, prescribed by the 91st section of the Eailroad Law, are conditions precedent to the right of the plaintiff to maintain this proceeding. (Matter of Saratoga Electric Ry. Co., 58 Hun, 287; Matter of Rochester Electric Ry. Co., 57 id. 56; affd., 123 N. Y. 351; Colonial City T. Co. v. Kingston R. R. Co., 15 App. Div. 195 ; affd., 153 N. Y. 540.) The case first cited was to fix the mode of and compensation for crossing the tracks of the Delaware and Hudson Canal Company by the plaintiff in a street in which the plaintiff constructed a street railroad. Commissioners were appointed by the Special Term, but the order was reversed by the General Term because it was not alleged in the petition that the plaintiff had acquired the consents of the abutting owners on the street crossed by the defendant and in which the plaintiff proposed to construct its street railroad. The second case cited was a proceeding to acquire by condemnation the lands of a private owner lying within the bounds of a public highway for the purpose of constructing a street railroad. Commissioners were appointed by an order of the Special Term, which was reversed by the General Term, and the decision of the General Term was sustained by the Court of Appeals on the ground that before proceedings could be instituted to acquire an easement in land in a highway, the plaintiff must allege that it had obtained the consent of the local authorities having control of that portion of the highway upon which it was proposed to construct or operate such street railroad — that such consent was a condition precedent to the right to maintain the proceeding. The last case cited was a proceeding, under section 102 of the Eailroad Law, by a street railroad to fix the compensation which it should pay for the right to run for 870 feet on the tracks of the defendant, another street railroad in Broadway in the city of Kingston. The Special Term made an order appointing commissioners to determine the compensation which should be paid by the plaintiff to the defendant for the use of its tracks, which was reversed by the Appellate Division, and its decision was sustained by the Court of Appeals
The questions now arise, had the plaintiff acquired, before this proceeding was begun, the consent of the local authorities having charge of the highway, and the consents of the owners of property abutting on the highway ?
March 21, 1894, the three commissioners of highways of the town of Waterloo, by an instrument in writing, signed and acknowledged by them, and filed April 10,1894, in the office of the clerk of the county in which that town is situated, consented to the construction by the plaintiff of a street railroad in the highway extending from the west boundary of the town of Waterloo eastward to the west boundary of the village of Geneva, said highway being a continuation of, and connecting North street in the village of Geneva with Main street in the village of Waterloo. This order or determination recites that, before acting upon the application, the commissioners gave public notice thereof and of the time and place when and where it would be first considered, by a notice published according to law, for at least fourteen days in a newspaper published in the town of Waterloo. This recites a compliance with the provisions of section 91 of the Railroad Act, regulating the proceedings of local authorities in determining the question. It is urged by the defendant that there was no proof of the publication of the notice which, by section 92, must be published. The highway com
It is also contended, in behalf of the defendant, that the plaintiff was bound to show that it had obtained the consents of the local authorities of the villages of Waterloo and Geneva to the construction of the railroad in the streets of those villages. This contention cannot be sustained. By the 91st section of the statute it is provided that the authorities in villages may consent to the construction of a proposed railroad in the streets of villages, and that in towns commissioners of highways are the local authorities referred to in respect to highways, and that their consents shall be obtained. The authorities of a village cannot consent for the authorities of a town, nor vice versa, and the consent of one set of authorities is in no wise dependent upon the consent of another set of authorities; and I am of the opinion that the consent of the local authorities of the town of Waterloo was sufficient without proving that the local authorities of the villages of Geneva and Waterloo had consented to the construction of the railroad in the streets of those villages.
It is conceded that the consents of abutters appearing on Exhibits Nos. 15 and 16 represented the'necessary amount of property abutting on the highway occupied by the plaintiff’s railroad in the town of Waterloo, as such property was valued upon the assessment roll of that town in the year 1893. Exhibit No. 15 was executed by thirteen abutters on the 15tli of May, 1894, whereby they consented to the construction of a railroad in the highway by the plaintiff,
No corporation is named in Exhibit No. 17, nor is it stated that a corporation was to be organized. The consent does not describe between what points the railroad is to be constructed, but simply provides that Miller and Reed may construct a railroad in the highway. Miller and Reed Avere not authorized by any statute of this State to construct a railroad in the highway, and they had no right to construct one (Fanning v. Osborne, 102 N. Y. 441), and the consents of ihe abutting OAvners that Miller and Reed might construct a railroad were void, and Avere not validated by being subsequently assigned to the plaintiff. The cases of which Sixth Avenue Railroad Company v. Kerr (72 N. Y. 330) is a type, cited in support of
In Case v. County of Cayuga (88 Hun, 59) it was held that a consent given by an abutting owner that a railroad might be constructed in a street by an individual was void. It follows that the plaintiff had not acquired the necessary consents of the owners of property abutting on this highway before this proceeding was begun.
It is urged by the plaintiff that the issues in the proceeding have been adjudicated against this defendant in the proceeding instituted by this plaintiff against the Fall Brook Railway Company and the New York Central and Hudson River Railroad Company. This contention is based on the following state of facts : Two railroads crossed the highway in question a few hundred feet apart; the defendant owns and operates one of those railroads, the crossing of which is involved in this proceeding; the Geneva and Lyons Railroad Company owns the other railroad, over which the Fall Brook Railway Company and the New York Central and Hudson River Railroad Company have some rights, the nature and extent of which are not disclosed by the record. On the same day that this proceeding was begun the plaintiff began one against the Fall Brook Railway Company and the New York Central and Hudson River Railroad Company to have the mode of crossing the Geneva and Lyons railroad tracks fixed, and the compensation to be paid therefor determined. Both proceedings were brought to a hearing at the same Special Term. The Fall Brook Railway Company interposed an answer, but the New York Central and Hudson River Railroad Company did not answer, but filed a preliminary objection that the court had no jurisdiction of the subject-matter for certain reasons mentioned. The court overruled these objections, and, by an order entered February 19,1895, appointed commissioners to determine how the crossing should be made as against that defendant, and the amount of compensation which should be paid to it for the crossing. The issues joined by the plaintiff’s petition, and the answer of the Fall Brook Railway Company, were referred to the same referee appointed in this case. These two proceedings are entirely independent of each other, and the New York Central and Hudson River Railroad Company had the right to consent that the plaintiff
The practice adopted in these cases is wholly irregular, and is not authorized by the statutes or rules of practice. We have presented in one appeal book the records of two independent and wholly disconnected proceedings. The practice regulating the hearing of appeals does not permit two independent cases to be incorporated in one appeal book, but the record on each appeal should be printed by itself so that independent judgment rolls may be made up embracing the papers, and only the papers, applicable to each case. Different questions are presented by these cases, and one might have been reversed and the other affirmed, and it is difficult to see how a judgment roll could be made up in either case which would be reviewed in the Court of Appeals.
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.