146 N.E. 379 | NY | 1925
On or about January 12, 1922, the State Commission of Highways presented to the Public Service Commission of this State a petition, alleging that public safety required an alteration in the manner in which the Pennsylvania State Line — Westfield, Part 1, Highway No. 8031, crossed the main line of the New York Central railroad and the New York, Chicago and St. Louis railroad and also in connection therewith an alteration in the manner in which the Buffalo and Lake Erie Traction Company crossed the same highway. After due hearings before the Commission, an order was made on the 14th day of June, 1922, requiring the grade crossing to be closed and discontinued, and a new piece of highway and overhead crossing of said railroads to be constructed in accordance with the plan and details described in the order. This required the placing of a mass concrete abutment immediately south of the existing tracks of the Nickel Plate railroad (so called), thereby appropriating and rendering useless to the railroad approximately forty feet of its established right of way. At this point the railroad had a right of way of about one hundred feet in the center of which it operated a single-track railroad. The proposed overhead crossing was elevated above the track but the concrete embankment, constituting the approach to the crossing, was to *282 be built according to the above order on forty feet of the right of way of the railroad to the south of the track. The railroad company protested and applied to the Commission for a rehearing which was granted. Further testimony was adduced before the Commission which later, and on the 7th day of February, 1923, made an order refusing to modify its previous order in this particular.
On appeal to the Appellate Division this order of the Public Service Commission was unanimously affirmed. The appellant is here through leave granted by this court.
The question immediately arises whether the Public Service Commission had any power in abolishing this grade crossing to appropriate the land or right of way of the railroad company for an abutment or approach.
It is well settled that railroad corporations may be required at their own expense not only to abolish existing grade crossings but also to build and maintain suitable approaches or viaducts to carry highways, newly laid out, over their tracks or to carry their tracks over such highways. (Chicago, M. St. P. Ry. Co.
v. City of Minneapolis,
Section
On the argument and in the briefs, as well as by the uncontradicted testimony, it is conceded that the overhead span could readily be carried over the company's right of way, i.e.,
over the forty feet appropriated by the order for an embankment. The additional cost of carrying this overhead crossing forty feet farther is said to be about $8,000. There is no difficulty with the engineering part of the proposition. On the hearings the dispute was over the expense. The State insisted that the railroad company should pay this additional expense and that the Commission had no power to extend the overhead crossing farther than the tracks themselves — in this case the single track of the Nickel Plate railroad. We do not think the Commission's power can be so limited as the result would be to deprive it of all power,i.e., if it could not extend the overhead crossing by its order over the adjoining right of way on which there was no railroad track and it had no power to appropriate the land of the railroad company for approaches, the result would be that the overhead crossing would be suspended in the air without approaches — there *284
would be no overhead crossing. The Public Service Commission, therefore, must either have the power to extend the overhead crossing to a reasonable extent over adjoining rights of way or else it has the power of appropriation. As it cannot have the latter under the law and Constitution of this State (at least without making compensation), it must have the former in order to function. The Railroad Law providing for changes in grade crossings must have a reasonable construction. (McAneny v. NewYork Central R.R. Co.,
Matter of State Highway Commission (Kirkwood Crossing) (
It follows that the orders appealed from must be reversed and the matter remitted to the Public Service Commission for a further hearing in accordance with the views here expressed, with costs to the appellant.
HISCOCK, Ch. J., POUND, ANDREWS and LEHMAN, JJ., concur; CARDOZO and McLAUGHLIN, JJ., absent.
Orders reversed, etc.