98 N.Y.S. 341 | N.Y. App. Div. | 1906
Lead Opinion
The Hudson and Manhattan Railroad' Company presented a petition to the Supreme Court for -the condemnation of certain property particularly described for the. use of its road and terminal station. .The petition alleges that the company was organized-under the laws of the State of Hew York for the construction and opera
The objections which were taken and which were insisted' upon by the appellants are based- upon the fact that there is. not included on the plans of the routes, stations and terminals authorized by. the board of. rapid transit commissioners, the lands óf the appellants which áre specifically described in the petition. Subdivision 3 of section 3360 of the Code of Civil Procedure provides that the petition shall contain a concise statement of the facts showing the necessity for the acquisition of. the lands sought to be condemned. To meet this allegation the petition alleges: “Sixth. The public use.for which the said parcels of property are required is for the construction-, operation and -maintenance in perpetuity of a tunnel railroad and.a suitable terminal station and depot for said railroad. The said property is necessary for said use because it forms a part of the route of said railroad and the terminal point thereof, as the same are established by the certificate granted by the board of rapid transit railroad commissioners for. the city of Hew York,-and also because the tract of land of which'it forms part is necessary as a part of said route and for a terminal station for said railroad.” It seems 'to be- conceded by the appellants that standing alone this allegation would be a compliance with the requirements of the-statute, but the appellants claim that as the petitioner has incorporated into. its. petition .the
The plans annexed to this .certificate, designate the route of the road and the location of the stations. Under the general power given to the petitioner it had power to apply for the condemnation of such real property as was necessary to construct the routes'. and stations thus authorized. ■ The question'presented to the board of rapid transit commissioners was the location of the railroad and . its stations. Whether the property that the petitioner seeks -to acquire is necessary for the construction of these roads and terminal stations as authorized by the board -of rapid transit. commissioners is a question to be determined by the referee upon the trial of the issues raised by the answers. ■ It certainly does not .conclusively appear from the petition that this property is not necessary, for that purpose, and although the property sought to be acquired is not directly within the plans of .the route and stations as approved-by the board of rapid transit commissioners, it does not fpllow that . the adjoining property may not be necessary for the proper construction of .the route, foundations-, Walls and approaches so as to enable the petitioner to connect its road with the underground faih road in the city of Hew York and with the surface of the streets. It is unnecessary in this discussion to analyze the Rapid Transit-Act and its relation to the Railroad -Law (Laws of 1890, chap. -565,, asurad.) Under which the petitioner Was 'incorporated ; but we think that where the railroad company has acquired from the board oft rapidx transit commissioners authority to construct a road underground, with certain terminal stations, then under-section 23 of the Rapid Transit Act. (Laws of 1891, chap. 4) the corporation has authority -to acquire and hold such real estate- or easements; or other • interests therein as may be necessary to construct, maintain
Without, therefore, intimating an opinion upon the question as to whether or not this property sought to be condemned is actually necessary for the proper and convenient construction of the road, terminal and stations, we affirm this order, leaving that question to be determined by the referee.
The order appealed from is affirmed, with ten dollars costs and disbursements.
Laughlin and Clarke, JJ., concurred; McLaughlin and Houghton, JJ., dissented.
Dissenting Opinion
It seems to me that by fair construction the Rapid Transit Act (Laws of 1891, chap. 4, § 32, as amd. by Laws of 1902, chap. 584) requires that any corporation desiring to construct an underground railway shall obtain from the board of rapid transit commissioners a Certificate approving not only of its route, but of its terminal sta-. tions, and that any map approved by that board shall embrace such private lands as it is proposed to take for terminals and other necessary facilities of operation before the corporation can institute condemnation proceedings therefor. Certainly such a road cannot be. constructed without' the consent of the board of rapid transit commissioners, and section 32 of that act (as amd. supra) provides that
The whole sekememf the act is to vest supervisory control of such a road in the board of rapid transit commissioners. The size of terminal'stations and .their precise location is as important as -the direction of the route. I do not think it can be that, a corporation can obtain consent of that board to a particular terminal station and then roam at will- in condemnation of private land's not'embraced within the map certified by the board of rapid transit commissioners.' This is what the petitioner attempts to do, and I think the preliminary objection should- have been sustained, and that the order should be reversed.
McLaughlin, J., concurred.
Order affirmed, with ten .dollars costs and disbursements. Order filed. - , ' ‘