Greenville & Hudson Railway Co. v. Grey ex rel. Morris & Cumings Dredging Co.

62 N.J. Eq. 768 | N.J. | 1901

The opinion of the court was delivered by

Collins, J.

The injunction against the appellant was properly awarded., The information on which it was based, and the annexed proofs,, jnesented a prima facie case that the appellant’s branch No. 1 was a mere relocation of a part of its main line. To this nothing was interposed but an affidavit minimizing the travel on the highway to be crossed. A lack of power to invade the public right-could not be disregarded merely because not much harm would be-done. The case, as made, was a clear one, and warranted a preliminary injunction. The opinion of the learned vice-chancellor,, as reported in 15 Dick. Ch. Rep. 154, is entirely satisfactory, as applied to the situation apparently existing. But the answer,, when filed, completely changed that situation or, rather, showed that it had been misconceived. On the motion to dissolve the-injunction it appeared that branch No. 1 was designed for a connection with other railroads, and the reason relied on for awarding the injunction was very properly dismissed from judicial consideration when its dissolution was refused. Under exactly like conditions the question whether branch No. 2 of the Jersey City Belt line Railway Company had legal authority was, left until final hearing, as appears by the opinion reported in 15 Dick. Ch. Rep. 154. That feature of this case will be considered later. I pass now to the ground on which alone the injunction was retained, namely, that two railroads cannot lawfully be constructed, under the franchise of the General Railroad law, upon the same surveyed route or location. That statute provides (Gen. Stat. p. 2654 pl. 61)

■“that a railroad may be located or constructed under this act, on the surveyed route or location of any other railroad, with the consent of such corporation, and not otherwise.”

The construction enjoined in this cause was to be upon the route of branch No. 2 of the Jersey City Belt Line Railway Company, and for it the appellant had the statutory consent. But the learned vice-chancellor held that this vested right had been lost by the appellant’s tacit consent to subsequent railroad construction on that route by the company that had granted it. Rights, and consequent obligations, cannot be so easily lost; but I do not admit the premise of illegality of a twofold occupation. Probably against a landowner the additional burden, perhaps ■even of an exclusive occupation by the grantee of the right, could not be imposed; but as against the state no reason for a limitation of the plain words of the statute is perceived. It seems to me that the use of the right of way, of one hundred feet in width, given by the statute is entirely at the disposal of the company .acquiring it, so that it be devoted to railroad uses under franchises derived from that source. It may be better for the state that two railroads shall run on that right of way, or even over the same tracks, than that more land shall be subjected to the broad grant of eminent domain conferred by the act. But the question is not one of expediency; it is a simple one of statutory interpretation, in which there is no room for doubt. Branch No. 1 of the •appellant has therefore a legal right to its surveyed route and location. Is there any reason why it should not be constructed ? Three reasons suggested by the respondent were, in the court below, held to be unfounded. Two were dealt with in the opinion first delivered and the other in that in the consolidated suit. All involve interpretation of statutes, and we have nothing to add to the convincing expression of the views of the vice-chancellor. We approve his declarations that, under the General Railroad law (Gen. Stat. p. 2660 pl. 83), the survey for the branch of a railroad need not be filed with the survey of the main line, and that a branch railroad may lawfully be constructed although the termini of the main line are both within the same county, and that, under “An act concerning railroad corporations,” approved March 10th, 1893 (Gen. Stat. p. 2716 pl. 338), municipal consent is only requisite for the construction of such railroads in cities or towns as require legal authority from that statute, namely, those to a mill, factory or other manufacturing establishment or clay-bed. The only other reason urged for holding the injunction is that which the vice-chancellor, as to branch No. 2 of the Jersey City Belt Line Railway Company, reserved until final hearing. As to the appellant it may be disposed of now, for the right seems clear and rests upon statute. The respondent’s claim is that appellant’s branch No. 1 is not really a branch railroad within the purview of the General Railroad law. Whether so or not, it is within the express authority of another statute. The answer avers, and uncontradicted affidavits prove, that the purpose of this branch is a connection with branch No. 2 of the Jersey City Belt Line railway. A supplement approved March 3d, 1880 (Gen. Stat. p. 2685 pl. 201), to “An act respecting railroads and canals” enacts as follows:

“Sec. 1. That whenever the railroads of any railroad corporation existing by or organized under any law of this state shall intersect or cross each other, or shall approach each other within a distance of one mile, and such corporation shall agree to connect their said railroads with each other, it shall be lawful for either corporation to determine upon constructing a branch railroad or railroads so as to effect such connection, and having first filed a map and survey of such branch railroad or railroads in the office of the secretary of state, to acquire, by purchase or by condemnation, in the manner prescribed by its charter, such land as shall be necessary for sucli branch connecting railroads, and for that purpose all such powers as shall be contained in its charter or conferred otherwise by law, shall be fully possessed by and belong to each of such corporations ; provided, that all proceedings for such condemnation shall be according to said charters, with all rights of appeal and review thereby given; provided further, that in no case shall any connection be made without mutual consent in writing under seal of such corporations.”

The case in hand falls directly within this statute. It is no objection to the legality of the proposed branch railroad that it will leave the main line on one side of the connection and return to it on the other. To compel traffic to be inconveniently carried past a natural point of departure on one side or the other and then be sent backward to the connecting point, with the alternative of laying out two branches, one from each direction, would be an unreasonable construction of the act. The authority is to construct “a branch railroad or railroads so as to effect such connection,” and a connecting loop is within the authority. The casé does not affirmatively show a sealed consent, in writing, of the two corporations, but that is a matter concerning them only, and will be timely if executed before the actual connection is made. That the two companies whose railroads are to be connected are parts of the Lehigh Valley system is immaterial. They are distinct corporations, and identity of interests affords no ground to deny them their legal rights as such. National Docks Railway Co. v. Central Railroad Co. of New Jersey, 5 Stew. Eq. 755.

The order of May 2d, 1900, awarding an injunction against the appellant will be affirmed, but the order of May 29th, 1900, denying a motion to dissolve that injunction will be reversed, and the cause will be remitted to the court of chancery, with directions to order its dissolution. Inasmuch as there will be but one bill of costs in this court and the appellant prevails on the merits of the controversy, it should have costs.

For reversal—The Chief-Justice, Dixon, Gummere, Collins, Fort, Garretson, Hendrickson, Bogert, Adams, Vre-DENBURGH, VOORHEES-11. For affirmance—None.