Manhattan Railway Co. v. Astor

110 N.Y.S. 1137 | N.Y. App. Div. | 1908

Dissenting Opinion

Scott, J. (dissenting):

The plaintiff seeks to condemn certain easements of light, air and access in order to erect, wholly in Houston street, stairways leading to its stations at the intersection of Houston street and the Bowery. It possesses statutory authority to construct and operate an elevated railroad “ over, through and along the Bowery,” but I am unable to find that it has express authority to occupy any part of Houston street for that purpose, and it is now definitely settled that the right to construct such a railroad in a street or avenue does not include the right to encroach upon or use any portion of an intersecting street for the purpose of erecting or maintaining a station and stairways. (Bremer v. Manhattan R. Co., 191 N. Y. 333.) When a corporation claims the right to acquire lands under a delegation of the power of eminent domain it must show express authority of law to j ustify the claim. (Bensselaer & Saratoga R. R. Co. v. Davis, 43 N. Y. 146.) The street which it is now proposed to occupy was not a part of the route of the railroad as originally authorized, and has not been included in or added to the route by any competent authority, and for that reason I am unable to find any authority to acquire property rights in Houston street upon which a proceeding of this nature can be based. The recommendation of the Railroad Commissioners upon which reliance is placed merely goes to the extent of recommending that additional stairways be constructed at the Houston street station. It does not specify that they shall be constructed in Houston street, and it appears that they can be constructed in the Bowery which is within the petitioner’s authorized route. Ho consent or approval has been obtained from the late rapid transit commission, or the present Public Service Commission, or any local authority. I am, therefore; of opinion that the petitioner has failed to show any authority to occupy Houston street for the construction of the stairways and hence cannot acquire the appellants’ property therein by the right of eminent domain. The interlocutory judgment should be reversed and the petition dismissed.

---

Lead Opinion

Ho opinion.

Present — Ingraham, McLaughlin, Laughlin, Clarke and Scott, JJ. Dissenting opinion by Scott, J.