81 N.Y.S. 478 | N.Y. App. Div. | 1903
The order entered herein was made after a trial of the issue raised By a return to an alternative writ of mandamus. The trial resulted in the granting of a peremptory writ of mandamus against the defendant requiring it, in the language of the statute (Railroad Law [Laws of 1890, chap. 565], § 11), forthwith to restore the highway at
It appears that this stipulation was regarded by the parties as a ■ modification of the injunction so as to permit the railroad company to go on with the work of changing the grade. The grade Was thereupon raised six and one-half feet and a temporary crossing at grade was made, which has since been used.
After the denial of the petition of the defendant to the Board of Bailroad Commissioners this proceeding was commenced, and it has resulted in the final order, a portion of which is the subject of this appeal.
Much of the argument of the appellant consisted of an effort to show that the stipulation above mentioned was in effect a contract on the part of the defendant to put in án undercrossing, which contract can be enforced by the writ of mandamus.
There is no affirmative agreement in the stipulation on the part of the defendant to put in an undercrossing. • The agreement it made was that any crossing which may be put in by-, it,'-except an undercrossing, was to be regarded as a temporary crossing.- The fair purport of the agreement is to protect the town against the possible claim of the defendant that the temporary crossing which the defendant proposed to put in should be regarded by it as a satisfaction of its.obligation under the law to restore the highway to its former state or to such a state as not unnecessarily to have impaired its usefulness as well as against any claim under the injunction bond. To that extent the town is protected by the stipulation. After the stipulation was made the town successfully opposed an undercrossing before the railroad commissioners. Bo doubt its opposition there was made in an effort not to defeat .an undercrossing, but to protect the town from paying a portion of the expense of making such a. crossing. But, whether this was so or not, the stipulation cannot be effective as a contract of the defendant to build an undercrossing without reading something into it that is not there. While the court will enforce stipulations made by parties to a litigation it will not undertake to make contracts for
Before the passage of what is known as the “ Grade Crossing Law” (Laws of 1897, chap. 754, adding §§ 60-69 to Railroad Law) the right to determine hów a highway should be taken across the tracks of a steam railroad, whether at grade or otherwise, rested primarily with the railroad company, under the old statute (Laws of 1850, chap. 140, § 24) which authorized it to carry the highway over or under its tracks “ as may be found most expedient.” (People v. N. Y. C. & H. R. R. R. Co., 74 N. Y. 302.) If, however, a railroad company made an attempt at the restoration of a crossing and such attempt had not been an effectual compliance with the statutory obligation to restore, resort could then be had to the court for a mandamus and the court would have in such case to point out in a writ in what respect the corporation had failed in its duty and would direct therein particularly what must be done by it in order to discharge its duty under the law. (People ex rel. Green v. D. & C. R. R. Co., 58 N. Y. 152.)
The “ Grade Crossing Law,” w(iich is now found in the Railroad Law in sections 60 to 69 thereof, inclusive, as amended, wrought an entire change in the law and the Board of Railroad Commissioners were thereby given exclusive power in all the cases mentioned therein in determining how highways should be taken across the tracks of steam railroads.
The Court of Appeals, in an opinion written by Chief Judge Parker, in discussing this change, in the recent case of People ex rel. City of Niagara Falls v. N. Y. C. & H. R. R. R. Co. (158 N. Y. 413), says: “ The latter act radically altered the procedure by which highways are to be carried across railroad tracks, a change of procedure made necessary by the radical change in the public policy of the State looking towards the ultimate abolition of the crossing of highways at grade by the tracks of steam railroads. It provides a complete scheme as to crossings, whether the tracks of the railroad cross streets already laid out or streets newly laid out, opened or extended across the tracks of a railroad already in existence, or the change in the grade of an existing crossing, and commits the regulation of the manner of making and constructing such crossing to the railroad commissioners who are given authority to determine whether
It is a settled rule of construction that when rights are conferred by statute, and specific remedies provided therein for their protection, that such remedies are exclusive and must be pursued. (Matter of New York, L. E. & W. R. R. Co., 110 N. Y. 379.) It would appear clear, therefore, that if the terms of the Grade Grossing Law are broad enough to cover the change in the existing crossing at the point in question the Board of Railroad Commissioners are clothed with exclusive jurisdiction to hear and determine- the matter in the first instance.
The argument of the appellant, however, is that. the Grade Crossing Law does not cover a case such as is presented by the facts here, for the reason that the change in the crossing was made necessary by the change in the grade of the railroad instead of by a change in the grade of the street, and that it is only in a case of the change of the. grade of a street where the grade of a railroad remains unchanged that the statute: applies.
It should be borne in mind that the repealing clause contained in the Grade Crossing Law was of all acts and parts of acts inconsistent with the new law. (Laws of 1897, chap. 754, § 3.)
It -is not necessary for us, therefore, to determine whether or not the appellant is right in this contention, for the reason that if it is right then the old statute would apply and the - railroad company would have a right, in the first instance, to elect whether it would carry the highway across its tracks at grade or otherwise. If it is wrong, and the Grade Crossing Law is broad enough to cover the case in question, then the Board of Railroad Commissioners must determine the matter in the first instance as to the method of crossing. In either event the court cannot now direct the manner of restoration.
I think the appellant has got all it is entitled to have at present under the order appealed from, and that the order and the mandamus issued pursuant to it should stand without modification, the order not having been appealed from by the railroad company.
The order appealed from should be affirmed, with costs of appeal to the respondent.
All concurred, except Lyoh, J., not voting.
Order affirmed, with costs.
Chap. 62.— [Rep.