12 N.Y.S. 318 | N.Y. Sup. Ct. | 1890
This is an appeal from the order of a special term of this .court, appointing three commissioners on behalf of the Saratoga Electric Railroad Company to ascertain and determine the points of the crossings and intersections of the track of the electric railroad .of said company over and across the track of the Rensselaer & Saratoga Railroad, leased and occupied by the Delaware & Hudson Canal Company; also fixing the time and place of the first meeting of such commissioners. The order was made upon the petition ■of the Saratoga Electric Railway Company, duly verified, the verified answer of the president, managers, and company of the Delware & Hudson Canal Company, and the proois taken on the hearing of the motion before the special term. On the hearing of the motion the appellant filed various objections, which were overruled by the court. The points urged on this appeal, upon which a reversal of the order is asked, are (1) that the petition does not .state facts sufficient to authorize the court to make the order; (2) that the act .of the legislature, under which the petition claims to have been organized, and under which it claims the right to have commissioners appointed, is unconstitutional and void; (3) the respondent insists that' the order of the special term, in appointing commissioners, is not appealable, and in support of that contention urges that the proceedings on this application are regulated by chapter 140 of the Laws of 1850, and the amendments to the same, which, it is ..claimed, form a complete system of proceedings in cases of this character, ■which are in no way affected by the provisions of the Code relating to appeals
This conclusion brings us to the consideration of the question raised upon the merits in this motion, as we think the appointment of commissioners affected a substantial right within the meaning of section 1356 of the Code. In Re Lockport & B. R. Co., 77 N. Y. 558, the general term and court of appeals entertained an appeal from the report of commissioners on a contest between railroads as to crossing. The allegation of the incorporation of the petitioner was sufficient, especially as the answer was not so framed as to put in issue the existence of the corporation. Chapter 508, Laws 1875. But the appellant insists that the petition of the relator was defective, in that it did not affirmatively appear from the same that the relator had complied with the provisions of chapter 252, Laws 1884, under which it claimed to have been incorporated. Section 1 of that act provides that “such incorporation shall also have all powers and privileges granted, and be subject to all the liabilities imposed by the act entitled • An act to authorize the formation of railroad corporations, and to regulate the same, passed April 2, 1850, and the several acts amendatory thereof, except as said acts are hereby modified.’ ” Under this provision of the act of 1884 it is insisted by the appellant that as the act of 1850 does not require the railroad corporation to acquire the consent of one-half in value of the adjoining property owners before it could construct, maintain, or operate its road, and that additional requirement is imposed by section 3, c. 252, Laws 1884, and that it is incumbent upon the relators organizing under the last-mentioned act to allege and prove that the requisite consents have been obtained as prescribed in that act, and that the procuring of such consents is a condition precedent to the construction, maintenance, operation, or use of such railroad, and that the appointment of commissioners is an act affecting the construction, maintenance, and operation of the relator’s railroad, and that the relator is not authorized to take that initial step towards construction without first obtaining consent, proof of which must appear in the petition, to confer jurisdiction upon the court to make any order con
Was the allegation that the petitioner had obtained the requisite consent, under the provision's a necessary and material allegation to authorize the appointment of commissioners in this case? Clearly the petitioner would not. be authorized to construct and operate its road until such consent were obtained. The company may construct and operate its road through and along-such streets and avenues or highways of such city, town, or village, and also-through, along, and upon private property which said company may acquire-for the purpose: “provided, that the consent in writing of the owners of one-half in value of the property bounded on,” etc., “be, after the passage of this act, first obtained.” If the appointment of these commissioners, for the purpose of condemning and getting the possession of the right to-cross the appellant’s road-bed, is a part of the petitioner’s act of constructing- or operating its road, then this consent was as much a necessary prerequisite-as the organization or incorporation of its company, and an allegation of that, fact in the petition would be as material as an allegation of an incorporation,, or the location of the route, or a failure to agree upon the terms of crossing, each of which are conceded to be necessary averments in the petition. In re Lockport & B. R. Co., supra. It may be conceded, as it is doubtless true, that the appointment of these commissioners is no part of the physical construction or operation of the road, but it is a preliminary prerequisite to the-physical construction without which no physical construction or operation of' the road can be legally effected. It is the initial step under the exercise, by the legislature, of the sovereign power of eminent domain, by which the-rights of one may be taken and used by another, for a public purpose, and the steps prescribed by the legislature, which are necessary to invest the applicant with authority to invoke that power, should clearly appear as the foundation of the proceedings. If, before the petitioner can exercise the-franchise conferred by its charter, the legislature has imposed conditions and. restrictions, it must comply with such conditions as a preliminary to, its enjoyment of the grant. It is true that the general railroad act, as amended,, provides a statutory method of compelling the connection and crossing of railroad tracks by different companies, and corporations formed under chapter 252, Laws 1884, are given, by a section of that act, “all the powers and. privileges granted, and be subject to all the liabilities imposed by this act, or by the act entitled ‘An act to authorize the .formation of railroad corporations, and to regulate the same, and the several acts amendatory thereof, except as said act is herein modified.’”
One of the essential modifications applicable to the construction and operation of a railroad constructed under the act of 1884 is the condition above-referred to, which is not found in the general railroad act, and before the-petitioner can avail itself of the provisions of the general railroad act that condition must be complied with. That provision did not exist, in the stat
It is also insisted in this case by the appellant that the petitioner made no effort to agree with the appellant in fact ; that the negotiations with the general manager, vice-president, and attorney were not an effort to agree with the company. We cannot agree with the appellant in this contention. The public are compelled to deal with corporations through their ostensibly authorized officers and agents, and while there are many acts, which can only be done by the board of directors or executive committee, still, in a matter of this kind, when the officers and agents assume to negotiate for the company, and give no notice to the person with whom they confer that they are wanting in authority to act, the company, having allowed them to act for it, have invested them with apparent authority, upon which the public have a right to rely.
The conclusion we have reached seems to render it unnecessary for us to consider the remaining, and perhaps the graver, question raised by the appellant, of the constitutionality of the act of 1884, so far as it purports to import into its provisions the provisions of the general railroad act, relating to the acquiring of privileges under the right of eminent domain by the condemnation of property or the right to its use. Without determining the constitutional question raised, we are of the opinion that the order should be reversed. Order reversed, with costs and printing disbursements. All concur.