88 N.Y. 279 | NY | 1882
There can be no- doubt that the petitioner must have acquired the right to construct its road through the county of Chemung, before it could apply for the appointment of commissioners to fix the crossing of the appellant’s road in that county. It did not acquire this right under its articles of association. The articles did not specify Chemung county as one of the counties through or into which the road of the petitioner was to run. The statute requires that the articles shall specify the name of each county through which the proposed road is intended to be made. (Laws of 1850, chap. 140, § 1.) But the twenty-third section of the act, as amended by chapter 77 of the Laws of 1876, provides for changing the route of a railroad organized under the act, and locating it in a county adjoining any county named in the articles. The section declares that “the directors of every company formed under this act may, by a vote of two-thirds of their whole number, at any time alter or change the route, or any part of the route of their road, or its termini, or locate the said route, or any part thereof, or its termini in a county adjoining any county named in the articles of« association, if it shall appear to them that the line can be improved thereby ; and they shall make and file in the clerk’s office of the proper county, a survey, map and certificate of such alteration or change, and" shall have the same right and power to acquire title to any lands required for the purposes of the company in such altered or changed route, as if the road had been located there in the first instance.”
The petitioner after its incorporation, and on the 12th of February, 1881, passed a resolution by a vote of more than two-thirds of its directors, to amend its articles of association, by striking out the counties of Schuyler and Tompkins named therein, and inserting in place thereof the county of Chemung, which latter county adjoins the counties first mentioned. The
The contention that the authority given to directors by the twenty-third section to locate a new route in a county adjoining a county mentioned in the articles, requires, in order to constitute a valid exercise, a,designation of the particular line to be occupied by the road, cannot we think be maintained. The rights of property-owners, or third persons, are not affected by the preliminary action under the twenty-third section. That action is taken ex parte by the corporation. It becomes effectual without notice to third persons, or confirmation by the court or other authority. When the directors have by proper vote determined that the road shall be built upon a new route in a specified county, that we think is a location within the section. The designation of the exact line is a subsequent proceeding, and when such designation is made, those interested have a right to be heard and to apply for a change of route. We do not perceive that there are any considerations of policy or convenience, which require that the petitioner’s route shall be specified in the preliminary action of the directors, nor is it we think required by a fair construction of the statute.
It is claimed that proceedings to fix a crossing under subdivision 6, section 28, of the act of 1850, could not legally be taken until the respondent’s route had been finally located in accordance with section 22, of the act. It appears that proceedings under section 22, to change the place of crossing, instituted by the present appellant', were pending when this proceeding was commenced, but before the order was made from which this appeal is taken, the prior proceedings had been terminated adversely to the present appellant. Upon this state of facts, the objection now made cannot prevail. The court might very properly refuse to entertain proceedings for the
We think there was sufficient evidence to show a failure of the two companies to agree upon the crossing, after an effort made by the petitioner to that end. The evidence very clearly indicates that the appellant was unwilling to consent to the crossing desired by the respondent. The respondent had the right to assume from what had occurred prior to the legal change of route, as well as from subsequent interviews with the officers of the respondent, that the latter company intended to leave the matter to be settled by the court.
We think the order appealed from should be affirmed.
All concur, except Sapallo, J., absent.
Order affirmed.