48 N.Y.S. 274 | N.Y. App. Div. | 1897
The commissioners have reported that the Midland road ought to be constructed and operated on South street and on the roadway; that the steam road and ferry company decline to consent to the construction, both on South street and on the roadway; that the village of New Brighton has assented to the construction on South street, and that the public convenience will be promoted by the construction and operation of the Midland road on South street and on the roadway.
In 1886 the steam road had completed its road on the north and east shores of Staten Island. It had previously acquired a ferry franchise from St. George to the city of New York, and constructed a large and commodious ferry house and landings at that place, to which its tracks extended, thus forming a close connection between the steam road and ferry.
In 1894 the electric road had built its tracks and made an agreement with the steam road and the ferry company by which they became equal owners of the capital of the ferry company. Arrangements were made between them by which the electric road was permitted to cross, by an elevated structure, some of the steam road’s property, and to construct an elevated platform as a station for its passengers.
The route of the Midland road, as defined in its certificate, runs from the interior of the island, with its terminal at the ferry. About twenty miles of track have been constructed, extending to within about 2,000 feet of the ferry. It is sufficient for the purposes of this decision to say that the route designated in the certificate is through “ Hyatt street to Stuyvesant place therein, upon and along Stuyvesant place to South street therein, upon and along South street to its terminus near the waters of Rew York Bay, thence upon and along the street, highway, road, public or private way, leading from South street to the ferry at St. George landing.”
South street is a public street in the village of Rew Brighton, and the board of trustees of that village have consented to the construction of the Midland road thereon, but as the objectors contended that the roadway leading from South street to the ferry landing is not a public place or highway, there was inserted in the order appointing the commissioners the following words: “ Reserving to the objectors the right to litigate before the commissioners the question whether said last-named roadway is a public highway or not.” It may be here observed that it appears by the record and the report of the commissioners that the objectors have not elected to, nor have they litigated this question before the commissioners. This court, therefore, must assume for the purposes of this motion that the objectors have not raised the question whether or not the roadway was a public highway or street, and we express no opinion upon that subject.
The electric road laid a single track on South street, and the steam road obtained a temporary injunction restraining it from constructing its road either in South street or the roadway, and by stipulation between the parties the motion for a permanent injunction has been postponed in such a manner that it can be brought to a hearing by. either party on seven days’ notice.
The reasons assigned by the commissioners in this respect meet our approval. They conclude that the bridgeway and platform constructed by the electric road have already proved inadequate, congested and inconvenient for passengers between the ferry and the electric road; that it is not for the public convenience to use a common terminal for these two independent trolley lines of railroad; that the building of a second entrance and bridge to the ferry would cause inconvenience and obstruction by the passing and repassing of the two trolley lines; that it is unreasonable and unnecessary to compel passengers to climb from the ferry to the platform, twenty-two feet high, and that the expense of the latter construction would be large and burdensome.
Neither were the commissioners impressed by the evidence that there was only a distance of 300 feet between the road of the petitioner and that of the electric road at a point on Arrietta street. ‘ IThe Midland road had the right to prefer its own route to one designated by another, and possibly a competing railroad company. Such .nearness of access is not the question herein involved, nor can it Influence the result. The purpose of the Midland road was to make the approach to the ferry landing more convenient and accessible ior its passengers, and not to put itself and its advantages on a plane with those of a rival company; and we cannot lose sight of the fact that the objectors upon this motion consist solely of such rival companies, although property owners appeared before the commissioners and were permitted to examine witnesses.
The commissioners are well-known residents of Staten Island, «carefully selected by this court with a view to their qualifications to
The report of the commissioners must be confirmed, reserving, however, to the parties interested the right to contest the question whether the roadway is a public street or highway, or private property.
All concurred.
Report of commissioners confirmed, reserving to the parties interested the right to contest the question whether the roadway is a public street or highway, or private property.