112 N.Y.S. 997 | N.Y. App. Div. | 1908
The material facts are not in dispute. Prior to 1867, the plaintiff,, or its predecessor in interest, was the owner in fee of the lands in question and across which it is proposed to extend Delavan avenue, and at that time the plaintiff, or such predecessor, had constructed and has ever since maintained its tracks, which constitute a part of its main line, upon said lands. In 1867 the defendant, in compliance with the provisions of its charter then in. force,
The learned trial court found, in substance, and we think correctly, that by the condemnation proceedings and the payment of the award, the defendant city acquired title in. fee to the lands in question, except such part or interest therein as was actually devoted to public use for railroad purposes. But, notwithstanding such finding and giving it full force and.effect, we are of the opinion that the plaintiff was entitled to an in junction restraining the defendant from
We think we should hold that the extension of the avenue in question, extending across the property and tracks of the plaintiff, was properly laid out and that the defendant, simply because ■of the failure on its part to exercise its rights in the premises, to wit, its failure to use such highway or to put it in condition for use, did not lose the benefit resulting to it from the laying out of tlfe highway in question, obtained in accordance with the provisions of law then in force; and it follows that the extension of Delavan avenue was properly laid out and that the defendant has the right to extend such avenue across the tracks of the plaintiff, unless prohibited by the provisions of the Railroad Law, above quoted, relating to the
The purpose of the act was ■ to prevent crossings of railroads by streets, avenues or highways at grade, to protect the public against the danger arising from grade crossings. We cannot believe that it was intended by the Legislature that, the many streets which, we will assume, had been properly laid out by the municipalities in years gone by, but which had never been used as public highways- or streets, should be extended across the tracks of a steam surface railroad after the passage of the act in question without the consent and approval of the Board of Bailroad Commissioners. Such a construction would, as it seems to me, seriously impair the beneficial results which were expected to follow the passage of the act. To illustrate : Suppose that after the passage of the act a highway is proposed which will cross the tracks of a steam surface railroad. Clearly in that case such result can only be accomplished after determination and decision .by.the Board of Bailroad Commissioners.
The principle presented by this case involves not only the rights of the plaintiff and defendant, but of the traveling public as well, and the real question presented is,. Is it proper and safe under all the circumstances to compel or permit the public to cross the tracks of the plaintiff at the place in question at grade? A grade crossing at that point in 1867 might have been entirely proper from every viewpoint, but according to the record the conditions have changed. The travel which would be taken across, these tracks has very materially increased. The number of trains operated by the plaintiff across such- proposed highway has been largely increased. And we think in view of those changed conditions and in view of the Bail-road Law, which has been enacted for the protection of the public, that it ought not to be held that the municipality can extend the proposed avenue across such tracks at its will and in violation of the provisions of the statute which purports to regulate the construction of crossings over the tracks of steam surface railroads. Our notion is that under the facts of this case the extension of Delavan avenue was properly laid out and that the defendant has the right to have it extended across the tracks and property of the plaintiff, but only in accordance witli the provisions of the statute above quoted, which provides how and in what manner a street, avenue or highway may be constructed across the tracks of a steam surface railroad.
The question presented.by this appeal is important. May all the ■ unused and unoccupied streets in the State which are only shown or indicated upon maps and which have never been used by the pub-' lie, but which may have been legally laid out prior to the passage of the Railroad Law, be carried across and over the tracks of a steam surface railroad at the will of a municipality and independent of the determination of the Board of Railroad Commissioners as to what method of crossing is necessary in order to protect the interests of the public and of the railroad %
We conclude that the judgment appealed from should be reversed, with costs, and that the defendant should be enjoined from making the crossing in question until it.has complied with the provisions of' section 61 of the Railroad Law, as amended.
All concurred, except Kruse, J., not sitting.
Judgment reversed, with costs and judgment directed for the plaintiff, with costs, enjoining the defendant from making the crossing in question until it has complied with the provisions- of section 61 of the Railroad Law as amended. '
See Laws of 1853, chap. 330, tit. 8, §§ 5-18, as amd.—[Rep.
See Laws of 1890, chap. 565, § 61, added by Laws of 1897, chap. 754, and amd. by Laws of 1898, chap. 520,— [Rep.
See Laws of 1897, chap. 754.— [Rep.
See Laws of 1853, chap. 62.— [Rep.
See Laws of 1907, chap. 429, §§ 80, 84-87, 89.— [Bep.