183 A.D. 149 | N.Y. App. Div. | 1918
The complaint alleges that the defendant, a domestic railroad corporation, operates a part of its railroad system between the city of Albany and the city of Cohoes, both in the county of Albany, and that between said cities, and near the city of Watervliet, said railroad crosses a public highway, known as the Shakers-Watervliet County Highway, No. 879, in the town of Colonie; that the defendant, at dates unknown to the plaintiff, has erected upon and across said highway seven railroad tracks in addition to the two main line tracks; that these tracks are laid at grade; that this highway is a public highway, and that heretofore and on or about the 22d day of March, 1911, the State entered into a contract with John E. Consalus for the improvement of said highway from the comers about one mile west of Shakers east through the Shakers settlement to the city line of Watervliet, a distance of six and four-tenths miles in the town of Colonie, and that this contract was subsequently sublet to one John W. Flinn; that work was begun upon said highway, and that it was subsequent to the beginning of said work that the defendant constructed the additional tracks across said highway; that said additional tracks were constmcted across said highway “ without any right or authority,” and that said tracks “ were built across said highway without any consent or authority so to do by
The answer of the defendant admits the jurisdictional matters, and that the tracks were built across the highway without the express consent or authority so to do by the Commissioner of Highways of the State of New York, and alleges that the consent of such official is not required by law for the construction and operation of said switch tracks over and upon said highway, and denies knowledge or information sufficient to form a belief as to the other matters alleged in the complaint.
The defendant affirmatively pleads that it made an application to the Supreme Court, under the provisions of section 21 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481),
The real question appearing upon this appeal is whether the consent of the State Commissioner of Highways was necessary to the legal construction and maintenance of these additional switch tracks, necessary to the defendant in reaching its roundhouses and in the practical operation of its railroad in this highly congested locality. It is not seriously questioned that the defendant has in good faith made an application to the Public Service Commission for permission to maintain and operate these switch tracks, and that it has made an application for the elimination of the grade crossing, both for its switch tracks and for its two main line tracks, contracting to pay all of the expense connected with the change of these switch tracks and being legally liable for its portion of the cost as to the main line tracks, and the only question of importance here is the true construction of section 146 of the Highway Law. If the consent of the State Highway Commissioner is contemplated and required by that section then the judgment here on appeal must be affirmed; otherwise, it must be reversed.
Section 146 of the Highway Law, in so far as it has any relation to this controversy, provides that “ No street surface or other railroad shall be constructed upon any portion of a State or county highway which has been, or may be improved under the provisions of this article, nor shall any person, firm or corporation enter upon or construct any works in or upon any such highway, or construct any overhead or underground crossing thereof, or lay or maintain therein drainage, sewer or water pipes underground, except under such conditions and regulations as may be prescribed by the Commissioner of Highways, notwithstanding any consent or franchise granted by any town, county or district superintendent, or by the
As we read this provision of the Highway Law it is confined to such “ portion of a State or county highway ” as “ has been or may be improved under the provisions of this article.” It is the fact of actual improvement of a portion of a State or county highway which gives the Commissioner any powers in the cases mentioned, and the language of the statute is not to be extended to those portions of a State or county highway which may, sometime in the future, be improved under its provisions. It is the physical improvement of the highway under the provisions of the statute, and not the potentiality of such improvement, which gives jurisdiction to the Commissioner of Highways. This is made clear by the provision of the same section that the fines of from $100 to $1,000 per day are to be “ recovered by the Commissioner of Highways and paid to the State Treasurer to the credit of the fund for the maintenance and repair of State and county highways.” When the highway has in fact been improved then the State has an interest in its maintenance in the condition in which it has been placed through the expenditure of public funds, and so it is provided that no railroad shall be constructed “ upon any portion of a State or county highway which has been ” in the past, or may be in the future “ improved under the provisions of this article * * * except under such conditions and regulations as may be prescribed by the Commissioner of Highways, notwithstanding any consent or franchise granted by any town, county or district superintendent, or by the municipal authorities of any town.” By the inclusion of the town, county or district superintendent, or the municipal authorities of any town, the Legislature clearly excluded the consent of the Public Service Commission, under the maxim of expressio unius est exclusip alterius. (Aultman & Taylor Co. v. Syme, 163 N. Y. 54, 57.) It could not have been intended that the Commissioner of Highways was to have the power to interfere with that other great system of public highways, the railroads of the State, which had been carefully provided for in the Railroad Law and the Public Service Commissions Law. He
But, if we should be in error in this construction, we are still of the opinion that the consent of the Highway Commissioner is not necessary to the lawful construction of these switches, authorized by section 8, subdivision 4, and by section 17 of the Railroad Law,
All concurred.
Judgment reversed, with costs, and complaint dismissed, .with costs.
Since amd. by Laws of 1913, chap. 743, and Laws of 1916, chap. 109. [Rep.
See, also, Laws of 1913, chap. 284, amdg. Railroad Law, § 17.— [Rep.