221 A.D. 544 | N.Y. App. Div. | 1927
The question presented by this controversy is whether the plaintiff or the defendant should bear the expense, amounting to $9,287.56, of the removal and relocation of the electric lines of the plaintiff company on Roosevelt avenue, in the borough of Queens, made necessary by the erection in said avenue by the city of New York, acting through its rapid transit commission, of an elevated railroad structure. The plaintiff is a public service corporation engaged in generation and distribution of electricity for light, heat and power purposes, serving its patrons in the borough of Queens/ New York city. Therefore, the plaintiff was legally authorized to maintain, use and operate in the public streets and avenues in said borough, including Roosevelt avenue, poles, wires and other fixtures for the transmission of electrical
We are of the opinion that under the stipulated facts the city of New York is obligated to pay such expenses for the removal and relocation of the plaintiff’s said lines. We think that in constructing the railroad in question the city was not acting in any governmental capacity, but' was engaged in a proprietary enterprise of building a railroad. There is no contention on the part of the city that the removal and relocation of the plaintiff’s wires was occasioned for any purpose other than the erection and operation of said railway. The demand by the city for the relocation of the plaintiff’s poles and wires was upon the sole ground that it interfered with and prevented the construction and operation of the elevated railroad, and removal of everything interfering with or obstructing or preventing the construction of said municipal rapid transit elevated railroad was required to-be expeditiously done so as not to cause delay in the construction of said municipal public improvement. No claim has been made that prior to the construction of said elevated road the poles, wires and appliances of the plaintiff in any manner interfered with the ordinary and usual use by the public of said avenue. Unquestionably had such removal been required by a regrading of the street by the city or for any other purpose required for the use of the street by the public the plaintiff, if required, would have been compelled, at its own cost and expense, to relocate its said poles and wires to conform with such changed conditions. The law is reasonably well settled that when the city engages in the construction of a rapid transit line it is not performing a governmental act, but acting in a proprietary capacity. (Matter of Rapid Transit R. R. Commissioners, 197 N. Y. 81; Litchfield Construction Co. v. City of New York, 244 id. 251, 263.) The position of the defendant in this respect would not be different if it were a private corporation or person. In the construction of this elevated railway it was not performing a governmental act. The distinction between a govern
“ Thus the only question is whether the city may as matter of public right and without compensation clear a ‘ space ’ for the instrumentalities of its system by removing or relocating 'the instrumentalities of other systems. * * *
“ A franchise conveys rights and if their exercise could be prevented or destroyed by a simple declaration of a municipal council, they would be infirm indeed in tenure and substance. It is to be remembered that they come into existence by compact, having, therefore, its sanction, urged by reciprocal benefits, and are attended and can only be exercised by expenditure of money, making them*550 a matter of investments and property, and entitled as such against being taken without the proper process of law — the payment of compensation. * * *
“ It will be observed that we are not concerned with the duty of the corporation operating a public utility to yield uncompensated obedience to a police measure adopted for the protection of the public, but with a proposed uncompensated taking or disturbance of what belongs to one lighting system in order to make way for another. And this the Fourteenth Amendment forbids.”
Moreover, the provisions of the Rapid Transit Act would seem to be broad enough to provide for the removal and relocation of the plaintiff’s wires and appliances, and that the transit commission is authorized to acquire by grant or by condemnation property rights made necessary in the exercise of its functions. In the contract between the city and the McClintic-Marshall Company the contractor agreed that if required by the commission’s engineer it would remove and relocate in a safe and permanent condition all wires, cables and poles which interfered with the erection of structural steel for the superstructure of said railroad and which came within the operating clearance thereof, to the reasonable requirements of the several owners. The engineer refused to give such directions under the evident assumption that the city, acting through the transit commission, may order the removal and relocation of the plaintiff’s lines without compensating the plaintiff for the expense thereof. While the Rapid Transit Act became a law prior to the city’s embarking in the erection of surface structures, and related principally to subways, in principle the provisions of the act should apply to surface structures as much as to those beneath the surface.
We are, therefore, of the opinion that the plaintiff is entitled to reimbursement by the city of New York for the expense incurred in the removal and relocation of its said lines and appliances. Judgment, therefore, should be directed in favor of plaintiff and against defendant for $9,287.56, without costs.
Dowling, P. J., Finch and McAvoy, JJ., concur; O’Malley, J., concurs in result.
Judgment directed in favor of plaintiff and against del end ant for $9,287.56, without costs. Settle order on notice.