127 N.Y.S. 513 | N.Y. App. Div. | 1911
Lead Opinion
The. plaintiff in this action has .been awarded an injunction restraining defendants from removing its tracks upon certain streets in the city of New York, and the principal question presented on this appeal depends upon the duration of the franchise granted to the Hudson Biver Bailroad Company by chapter 216 of the Laws of 1846 ; ‘ and the effect of chapter 917 of the Laws of .1869 under which the plaintiff was incorporated. The referee in a careful opinion has stated the facts in relation to the incorporation of the several railroad companies which under the act of 1869 were consolidated into the corporation then organized- and which is the present plaintiff. The real question presented on this appeal is whether the city of New York can remove the tracks of the plaintiff located in, certain public streets and avenues which was expressly authorized by the act of 1846, under which the Hudson Biver Bailroad Company was incorporated, and in which - streets and- avenues' the plaintiff lias maintained these tracks and operated its railroad under the franchise then granted.
In considering this question we must bear in mind that at the time these several acts were passed the State only could grant a franchise to operate a surface railroad in the streets of the city of New York; that its power to grant such a franchise and authorize such a use of the surface of the' streets was Uncontrolled by any constitutional provision; and that the municipal governmentof the
Section 4 of the act provided that the directors named in the section should open books to receive subscriptions to the capital stock of .the corporation, and the stockholders should have power, when one-half of the capital stock to the amount of $3,000,000 should have been subscribed and five per cent thereof paid in, to exercise the powers and privileges conferred by the act; that thereupon the directors should cause to be made examinations, surveys and maps for the said railroad .as might be necessary to the selection by "them of the most advantageous line or lines, for the location of the road ; that the. directors should after such examinations and surveys have been made, select and, by certificates drawn on suitable maps under their hands and seals, designate the line, course or way which .they might deem most advantageous for the said railroad ; which certificates for lands lying in the county of New York should be filed in the office, of the register of the city of New York; which line, course or way so selected and certified shall be the line, course or way on which the said corporation shall construct, erect, build or make their railroad, with a single, double or triple track as therein mentioned; that “ the said directors may locate their railroad on any .of the
This act was passed. May 12, 1846, and on May 6, 1847, the ■ mayor, aldermen and commonalty of the city of New York passed an ordinance whereby permission was granted to the Hudson Eiver Company to construct a double line of tracks, with suitable turnouts, along the line of the Hudson river, from Spuyten Duyvil creek to near Sixty-eighth street, occupying so much of Twelfth avenue
In pursuance of the authority thus granted and the consent of the corporation of the city of New York the railroad company completed its line of railroad from New York city to a point on the Hudson river opposite the city of Albany, whereupon the common council of the city of New York on October 24, 1851, passed a resolution that the citizens of New York had great cause for congratulation for the construction of this railroad and the thanks of the municipal authorities of the city of New.York were eminently due and the same were tendered to the officers of the company.
At.the time of the construction of the railroad Twelfth avenue had not been opened north of Sixty-first street; Eleventh avenue had not been opened north of Forty-eighth- street; and the railroad company acquired title to the lands within; the bounds of those avenues necessary for the construction of its road along the route designated." Subsequently the corporation of the city of New York acquired the fee of the land in these avenues paying to the railroad company a nominal sum for acquiring title to the land which had been acquired by the railroad company. -The fee thus acquired was of course subject to the franchise granted by the State to the railroad company to occupy the streets for railroad purposes. The conditions imposed by the act of 1846 were complied with. The municipal corporation of the city of New'York had consented to-the construction of the road within the city of New York and had assented to the location of the railroad on certain of the streets and avenues of the city of New York and the railroad company had constructed its road and proceeded to maintain and operate it as provided for by the grant of' the franchise. It must be conceded, I think, that the Hudson River Railroad Company thereby acquired a franchise to construct, maintain and operate a railroad upon the course adopted by it within the city of New York which neither the corporation of the city of New York nor any power except the State of New York could interrupt or interfere with. The use of the franchise was not thereafter in any respect subject to the control of the city of New York and the railroad company continued in the enjoyment of the franchise down to the year 1869.
Prior to the year 1869 there existed a railroad extending from
By chapter 917 of the Laws of 1869 provision was made for the merging and consolidation of any railroad companies or corporations organized under the laws of this State, or of. this State and any other State, whenever tile two or more railroads of the companies or corporations so to be consolidated should or may form a continuous line of railroad with each other, or by means of any intervening rail’ -ad bridge or ferry. The terms and conditions upon which such consolidation should be carried out were provided for . by the act. Section 3 of the act provided that “ upon the making and perfecting such agreement and act of consolidation as herein-before provided, and filing the same or a copy thereof in the office of the Secretary of State as aforesaid, the said corporations,. parties thereto, shall be deemed and taken to be one corporation by the name provided in said agreement.” Section 4 provides: “ Upon the consummation of said act of consolidation as aforesaid, all and singular the rights,, privileges, exemptions and franchises of each of said corporations, parties to the same, and all the property, real, personal and mixed, and all the debts due on whatever account to eithei of said corporations, as well as all stock subscriptions and other things in action belonging to either of said corporations, shall be taken and. deemed to be transferred to and vested-in such new corporation, without further act or deed; and all clannsy demands, property, rights of way and every other interest' shall be as effect
In pursuance of the provisions of this act the New York Central Railroad Company and the Hudson River Railroad Company entered into an agreement of consolidation on the 15th of September in the year 1869, wherein it was provided that said corporation should continue for the term of 500 years, such consolidated railroad to be known as the New York Central and Hudson-River Railroad Company, and to be organized under the provision's of the General Railroad Act of 1850. By the incorporation of the new corporation by the merger of the New York Central Railroad Company and the Hudson River Railroad Company all and singular the rights, privileges, exemptions and franchises of each of said corporations, * * * and all the property, real, personal and mixed, and all the debts due on whatever account to either of said corporations, * * * shall be taken and deemed to be transferred to and vested in such new corporation, without further act or deed; and all claims, demands, property, rights of way and every other interest shall be as effectually the property of the new corporations as they were of the former corporations.”
The franchise that had vested in the New York Central Railroad Company before consolidation was for 500 years. The franchise that had been granted to the Hudson River Railroad Company was vested in it for 50 years from the year 1846. The Legislature then authorized these corporations to become consolidated by the formation of a new corporation with a life of 500 years and trans
This action was brought to enjoin the city of New York from enforcing a resolution of the board of estimate and apportionment, directing the president of the borough of Manhattan to remove tile plaintiff’s tracks from the streets and avenues within the city. If this resolution was an invalid exercise of power by the municipality, .it conferred no authority upon the borough president to remove the tracks, and his threatened action would have been an illegal- act which the court was required to enjoin. The plaintiff, as before stated, was exercising a franchise granted by the State. It was conceded that a legal franchise had been granted, but it was claimed by the- city that that franchise had expired by limitation.- The State has not questioned the right of the plaintiff to exercise the franchise which was granted to the Hudson Eiver Eailroad Company, and which was concededly a legal franchise, and, as I understand the settled law of this State, it is the State only that can question the right of a corporation to exercise a franchise granted by the State. Thus, it was said in the case of City of New York v. Bryan (196 N. Y. 158): “ While the title to the streets in the borough of Manhattan is in the city, its title is not that of a private owner, but in trust for public purposes. The franchise of the defendants’ predecessor proceeded, as already shown, from the State. The constitutional requirement has been complied with, for the city has given its consent. It may well be that public convenience and advantage will be best subserved by allowing the defendants to complete and operate -that portion of their road which has been in process of construction. * * * However that may be, the legal status of that franchise and the rights of the defendants, or the company to which they succeeded, to the property and structures created in the execution of the franchise should be determined only in a litigation between the People of ’ the State, from whom the franchise sprang, and the defendants, wherein a determination will be binding and conclusive on everybody, and not in a suit between the defendants and third parties, unless it. is absolutely necessary so to do.” Here the plaintiff was exercising a franchise granted by the State and in the exercise of that franchise had maintained tracks in certain streets of the city of New York for many years.
The other questions presented in this case' are satisfactorily discussed in the opinion of the referee and nothing more, need be said.
It follows, therefore, that the judgment appealed from must be affirmed, with costs.
Clarke, Scott and Miller, JJ., concurred.
Concurrence Opinion
If it clearly appeared that the right of the plaintiff to maintain and use its railroad tracks in the public avenues and streets in question has terminated, I would not vote to enjoin the municipal authorities from removing its tracks and excluding it from using the avenues and streets, for I think that the Court of Appeals did not by its decision in City of New York v. Bryan (196 N. Y. 158) intend to hold that the city in such case would be powerless to act and that it would rest entirely with' the People of the State, through their Attorney-General or otherwise, to intervene or not intervene in their discretion to restore the rights of the public; but it appears to be conceded that the plaintiff was organized by the consolidation of the. Hudson River Railroad Company, which ivas incorporated by chapter 216 of the Laws of 1846, for the period of 50 years only, and the New York Central Railroad Company, which was duly organized under the laws of this State with a charter for 500 years. The consolidation was duly effected during the corporate lives of the two companies, pursuant to the provisions of chapter 917 of the Laws of 1869. • It is claimed on the part of the plaintiff that the effect of the agreement between the two companies entering into the consolidation was to incorporate, the plaintiff,
I do not agree with the contention of the learned counsel for the respondent that, aside from the consolidation, the right to use the avenues and streets in question for railroad purposes was granted as á special franchise in perpetuity and would have survived the expiration of the corporate existence of the company to which it was granted, and I think there is abundant authority, particularly in view of the provisions of the charter of the Hudson Eiver Eailroad Company, and of the fact that it was not a street railroad, that such permission was only granted originally for the period of its corporate existence. (Turnpike Co. v. Illinois, 96 U. S. 63 ; People
In the O'Brien Case (supra) the Legislature had, after the amendment of the Constitution in 1874, by chapter 252 of the Laws of 1884 provided .for a sale at public auction of street railroad franchises and the court held that the franchise to 'use the public streets • for street railroad purposes tlnis duly sold, snrvived.the dissolution of the corporation, before the expiration of the period for which it was created, in the exercise by the Legislature of the power reserved to alter, ame'nd or-repeal charters.
It was, of course, competent for the Legislature to authorize the consolidation of these companies for any period of years, but since it made no provision on the subject, I think it -is extremely doubtful whether by the consolidation the consolidated company was authorized to use the avenues and streets in question for railroad purposes after the'expiration-of the period originally prescribed for the corporate existence of the Hudson River Railroad Company; and even if it was so authorized, still I am of opinion that'the permission of the. Legislature granted to the Hudson River Railroad Company by its charter, with the consent of the municipal authorities, to use the public avenues and streets was a revocable license, and that the continuance of such use now. is subject- to the will of the Legislature, which may repeal or revoke the license under the express power reserved in the charter of the Hudson River Railroad Company, and under its police power as well.' (Illinois Central Railroad v. Illinois, 146 N. Y. 387; American Rapid Tel. Co. v. Hess, 125 N. Y. 641; Davis v.Mayor, etc., 14 id. 506-520; Wabash R. R. Co. v. Defiance, 167 U. S. 88; New York Central
The public avenues and streets are held in trust for the use of the people of the entire State primarily for public travel, and while it was competent for the Legislature to authorize their use by a steam, railroad company, which is not a street use, the grant of such authority must be strictly construed in favor of the public; and it being doubtful, at least, whether it would be competent for the Legislature to make an irrevocable grant to a steam railroad company to use the public- avenues and streets of a great and growing city for steam railroad purposes in perpetuity the permission for such use should be construed as revocable when the use becomes inconsistent with the use of the avenues and streets, for their primary purposes of public travel. (See Charles River Bridge v. Warren Bridge, 11 Pet. 420; Chenango Bridge Co. v. Binghamton Bridge Co., 27 N. Y. 87; Syracuse Water Co. v. City of Syracuse, 116 id. 167 East Ohio Gas Co. v. City of Akron, 81 Ohio St. 33 ; Cleveland Electric R. Co. v. Cleveland, 204 U. S. 116 ; State v. Minnesota T. R. Co., 80 Minn. 108.) It may we.ll be that in 1846, when the Hudson River Railroad Company was incorporated, the use of the avenues and streets in question for their primary purposes was not such that human life and property would be seriously endangered,, or that the public would be seriously endangered, or that the public would be seriously inconvenienced, by permitting the use thereof for railroad purposes also, which at that time, it may be assumed, were quite limited ; but it is not, I think, reasonable to attribute to the Legislature an intent to permit the railroad company, with its increasing business, to continue the use of the avenues and streets in jierpetnity, and when, therefore, in the judgment of the Legislature the interests of the public safety and convenience require that the railroad company shall no longer use the avenues and streets as a means of reaching its terminus, I think it is entirely competent for the Legislature to repeal or revoke the permit and to require the railroad company, under its authority to purchase by private grant or to exercise the right of eminent domain, to obtain a right of way to its terminus over private property, or to consent, if that be necessary, to a change of location of the railroad company’s terminus. If the license to use the avenues
I am of opinion, however,, that the authority in these' matters rests with the Legislature and not with the municipality, and that, the municipal authorities were, therefore, properly enjoined from taking the law into their own hands and attempting to oust the railroad company from the use of the avenues and streets on the theory that such use has become a public nuisance.
Jndgment affirmed, with costs.