4 N.Y.S. 509 | N.Y. Sup. Ct. | 1888
Appeal from a judgment entered on a decision of a special term, and heard in this court on a case which contains all of the evidence. In 1854 the Syracuse & Binghamton Bailroad Company, incorporated under the general railroad act, constructed its railroad across one of the highways of the town of Fenton, by an over-crossing or bridge. The highway was, and is, 3 rods wide. Two stone abutments 12 feet high, 15 feet apart, 43 feet long, and parallel with the traveled track of the highway, were built, upon which stringers and the railroad track were laid. Afterwards the defendant (incorporated under the general railroad act) succeeded to the rights of the first-named corporation, and has, for many years, owned and operated said road. July 10, 1886, this action was begun, describing said bridge or crossing, and alleging that it was an obstruction to public travel, an encroachment, and asked for a judgment compelling its removal from the highway. The defendant answered that the bridge was constructed pursuant to the statutory powers conferred upon railroads, with the consent of the commissioners of highways; that the highway was restored to its former state of usefulness; had remained in the same condition for more than 30 years before this action was begun; and that the statute of limitations was a bar. The court found that the passage-way (15 feet in width) was too narrow, and unnecessarily and materially impairs the usefulness of said highway, which had not been restored to its former state, or to such a state as not unnecessarily to have impaired its usefulness, and decided that the north abutment should be moved 10 feet northerly, so as to leave the passage-way 25 feet wide. Since this action was begun the defendant has shortened the walls about 11 feet, so that they are now 32 feet, iftstead of 43 feet, long.
Section 28, c. 140, Laws 1850, (the general railroad act,) authorizes every corporation incorporated under that act “(5) to construct their road across * * * any * * * highway * * * which the route of its road shall intersect or touch, but the company shall restore the * * * highway * * * thus intersected or touched to its former state, orto such state as not
Hardin, P. J., concurred.