58 N.Y.S. 94 | N.Y. App. Div. | 1899
Lead Opinion
If we treat the Goshen Railroad Company as an independent railroad corporation, in all respects separate and apart from the Erie Railroad Company, I can see no reason for its existence, and no public necessity or convenience to be met or subserved by it.
Of course these considerations are not in all cases conclusive. A road may not expect any local traffic or any .through traffic of its own, but yet may be the connecting link between other systems of roads from which it derives its business, and where it would serve .as a convenience and necessity, as in the case of Matter of Depew & Southwestern R. R. Company (92 Hun, 408).
But that was a widely different case from the one before us. That road served as a connecting link between nine separate and distinct railroad corporations. To quote from the opinion of the ■court in that case: “ The convenience and necessity of a railroad from Depew to Blasdell is not questioned, and for the purpose of facilitating the transportation of freight both east and west, between Hew York and Chicago, its importance is apparent. It will shorten the distance between those cities about six miles, and the time required in the transportation of freight about that number of hours, and will obviate the necessity and inconvenience of taking freight cars through the city of Buffalo to interchange with connecting roads. There are five railroads passing through Blasdell to be brought into more immediate or direct connection with four at Depew by the proposed line between those two places.”
The Goshen railroad serves no such purpose; it will take the ■cars of the Erie Railroad Company from the tracks of the Erie railroad at one point and deliver them back again to the Erie Railroad Company at another point not quite three miles distant. The ■difference in distance between the two points, over the tracks of the Erie railroad as now laid, and over the proposed route of the Goshen railroad, is about 3,000 feet.
It cannot be considered as a tributary or feeder to the Erie road; it brings nothing to the Erie road except what it receives from it; it takes nothing from it except what it immediately returns to it; instead of a feeder or tributary, it is rather a parasite.
As a matter of fact it is practically a switch of the Erie road, and the only office that it performs is that of a switch or additional track
Its board of directors is composed of the officers of the Erie Railroad Company; its president, who is likewise the president of the Erie Railroad Company, says, in an affidavit placed before the Railroad Commissioners, that “The construction of said railroad, as proposed, is required for the safe, economic and proper conduct of the business of the railroad of the Erie Railroad System.”
The expert of the Railroad Commissioners in his report says: ■“This road is to be constructed by or in the interest of the Erie Railroad Company, in order to avoid the numerous grade crossings, ■excessive grades and curvature on its present line; all freight trains áre, at present, obliged to have the assistance of pushing engines through this village. It also saves one-half of a mile in distance; the road is in no way competitive.”
Now, while all these things sought to be accomplished may be convenient and necessary, not only for the Erie Railroad Company, but even for the general public, still it does not follow that the certificate required by section 59 of the Railroad Law (Laws of 1890, chap. 565) should be granted. The requirements of that section mean something more than that it is necessary and convenient to lay railroad tracks between two given points. If that was all that was meant, every time that the increasing business of a railroad company demanded the laying of an additional track, or the building of a turnout or switch, such necessity would be the justification for the organization of a railroad company to build such additional track, switch or turnout, and the issuance to it of a certificate of public convenience and necessity.
One of the reasons heretofore given for the enactment of the law, 1, that before a railroad corporation can exercise the power conferred ! upon such corporation, or begin the construction of its road, it must, receive a certificate of public necessity and convenience, was to! prevent the organization and operation of railroad corporations,; among others, “ by those seeking by threats of destructive competi-j tian to levy tribute upon existing roads.” To that, perhaps, it is ¡ well to add, also to prevent, or rather remove, the temptations to the
The good to be accomplished and the evils to be remedied by the erection of this road can be accomplished by the Erie railroad itself, and 'that without the operation of a separate and distinct corporation. By so doing the provisions of section 13 will not be evaded, and no. portion of its profits will be expended in carrying its traffic over the lines of another road between two points on its own line. The ’ decision of the Railroad Commissioners in granting the certificate is re viewable by certiorari. (People ex rel. Loughran v. Railroad Comrs., 158 N. Y. 421.)
The order of the Railroad Commissioners should, therefore, be reversed.
All concurred, except Merwib, J., dissenting, and Labdob. J., not voting.
Dissenting Opinion
(dissenting):
I dissent. The Railroad Commissioners after taking testimony and making a personal examination reached the conclusion that, public convenience and a necessity require the construction of the applicant’s railroad. I see no good reason for disturbing in this proceeding that conclusion. It is suggested that the rights of the municipal corporation of Goshen or the rights of the Erie railroad or its stockholders may be injuriously affected.' No issue is, however, presented by any of those parties. They are not here. It is doubtful -whether the relators are in a position to review the determination of the commissioners. The statute does not require notice to be given to them of the hearing before the commissioners, and it is not apparent how their legal rights are affected by the action of the commissioners. If the proposed route is not right the relators have a remedy by statute. So they have if the enterprise is not a public use within the meaning of the law (Code Civ. Proc. § 3360; Matter of Niagara Falls & W. R. Co., 108 N. Y. 375; Matter of Split Rock Cable Road Co., 128 id. 408.)
Determination of the Board of Railroad Commissioners reversed, with costs against the Goshen Railroad Company.
