45 N.Y.S. 687 | N.Y. App. Div. | 1897
. At the time of the commencement of this action in January, 1892, there had been no tracks or buildings constructed by the plaintiff on the island. Prior to October, 1892, four tracks had been laid, the plaintiff having commenced to operate its road on September 1, 1892. At the time of the trial nine tracks had been laid and others were in contemplation.
A large amount of evidence was given at the trial upon the subject of the necessity of the use by .the plaintiff of the whole of its terminal property. The finding of the referee on that subject is fully sustained by the evidence. Clearly such a case was presented as rendered it probable that these lands would be required within a reasonable period for the use of the corporation. (Matter of Staten Island Rapid Transit Co., 103 N. Y. 251,257.) Besides, the proceeding. for condemnation instituted by the plaintiff was a proceeding in rein (Matter of Union E. R. R. Co., 112 N. Y. 61, 71), and the adjudication in such a case cannot ordinarily be questioned, in a collateral proceeding.
The defendant in its answer admits that the plaintiff, by virtue of the right of eminent domain for public use under the provisions of the general railroad laws of the State, .has acquired' such rights as are provided by the statute- in the island property. The plaintiff,, under its condemnation proceedings, was in possession before the defendant took any proceedings to condemn the land for highway purposes. ■ It is hardly claimed that the defendant has any prior right in this regard to the plaintiff. It seeks, under the ordinance of January 27, 1891, to' compel the plaintiff to carry the street
The defendant, therefore, is in the attitude of attempting to lay out and open a street across property already condemned for a public purpose. The street, as proposed, is entirely on such property except a portion of the Ellison property lying between the west shore of the island and the center of the river. The entire distance of the street across the island is within the property condemned. The defendant in this view is met with the proposition that lands once taken for a public use, pursuant to law, under the right of eminent domain, cannot under general laws and without special authority from the Legislature be appropriated by proceedings in invitwn to a different public use. (Prospect Park & C. I. R. R. Co. v. Williamson, 91 N. Y. 552.) The question then comes whether the act of 1853 is sufficient special authority to sustain the defendant in its position that the plaintiff should carry the street across the island.
Sections 1 and 2 of the act of 1853 are as follows:
“ § 1. It shall be lawful for the authorities of any city, village or town in this State who are by law empowered to lay out streets and highways, to lay out any street or highway across the track of any railroad now laid or which may hereafter be laid, without compensation to the corporation owning such railroad; but no such street or highway shall be actually .opened for use until thirty days after notice of such laying, out has been served personally upon the president, vice-president, treasurer or a director of such corporation.
“ § 2." It shall be the duty of any railroad corporation, across whose track a street or highway shall be laid out as aforesaid, imniediately after the service of said notice, to cause the said street or highway to be taken across their track as shall be most convenient and useful for public travel, and to cause all necessary embankments, excavation and other work to be done on their road for that" purpose; and all the provisions of the act, passed April second, eighteen hundred and fifty, in relation to crossing streets and highways already laid out by railroads,, and in relation to cattle, guards and other securities and facilities for crossing such roads shall apply to streets and highways hereafter laid out.”
'The proposed street is '50 feet wide and its distance across the island is 278 feet. The claim of the defendant is in effect, that the-whole distance across the ■ island is- “ the track ” of the plaintiff within the meaning of the statute. The defendant has • no other authority to open its road over any part of the route across the islandj and,, therefore, unless the whole distance is “ the track ” of the.plaintiff, its position .is not sustained. It cannot compel the plaintiff to carry the street across a part in the absence of any right on the part of the defendant to open the street, as to the balance.
The.act of 1853 has beeii construed in several cases. In The Albany Northern R. R. Co. v. Brownell (24 N. Y. 345) the plaintiff had acquired title to an irregular piece of land at one of ■ its stations on .which to lay its track,'and'also for the accommodation of a station house and for a side track connected with the main track by turn-, outs and switches, and for a turntable_ or Y and for other conveniences of the road. The highway, as laid out, passed over the track and the.side track,•■and also- occupied a portion, of the plaintiff’s ground suitable for the .site of an éngine house and on which such a building was afterwards erected, occupying the entire width of the highway and connected with the turntable by another side track. The court, in affirming the judgment which enjoined the defendants from laying out the highway across the plaintiff’s premises, say that the act of 1853 authorized the town authorities to lay out the highway across the main track and the side track connected therewith, but not across the grounds which the company had acquired as sites, of its station house,, engine house, turntable,, etc., nó provision being made for compensation; that, “the act of 1853 does not, in language or by any necessary implication, extend to an appropriation of such land to the purposes of a.high way, and it does not fall within the policy which contemplated that the track of the railroad might be so used. The use Of the land acquired by the railroad company for its track was such as admitted of a concurrent use for the purposes of a highway;. but it was quite otherwise with, .that.which was obtained for the engine house and other structures. As to this, the uses to which it was to- be subjected were the same as those which any proprietor of land may be supposed to have for
In Boston & Albany R. R. Co. v. Village of Greenbush (52 N. Y. 510) it was held that the act of 1853 has reference only to the tracks used for public traffic and for turnouts and switches and does not include grounds upon which tracks are laid for storing cars- or exclusively for making up trains. Church, Ch. J., says-: “ The ‘track’ specified in the act may include one or more single tracks,, but should, I think, be limited to the track used for public traffic,, whether composed of one or more, including turnouts and switches, or, in other words, what may fairly be regarded as the roadway. Grounds upon which tracks are laid for storing cars, or exclusively for making up trains, are not embraced in the term ‘ track.’ The finding of fact is that the seven tracks proposed to be crossed are in ‘ constant use for passing trains and for switching off cars and making up trains.’ This finding does not relieve the premises from, the operation of the statute. We cannot infer that these grounds-were used substantially for storing cars. ■ On the contrary, the import of the finding is that, although in constant use for jiassing trains, the tracks were also used for switching off cars and. making-up trains. This might be done at any point on the road where there is a turnout or switch.”' An injunction was denied.
In Prest., etc., D. & H. C. Co. v. Village of Whitehall (90 N. Y. 21) the land of the plaintiff embraced within the proposed street crossing was five rods in width, was covered by four railroad tracks, two of which were the main tracks of the railroad for the passing of ears and two were extra tracks extending several hundred feet both to the north and south of the proposed street crossing, and were used, in connection with others, for switching cars, making up trains and for allowing cars to stand upon until they could be put into trains about to depart. An injunction was denied, it being said "by Dahforth, J., that the “ track ” referred to in the act of 1853 “ signifies the entire roadbed and not merely the iron or railway. If, therefore, there are within its limits and between the lines of any proposed street or highway, switches or points, or other contrivance
In Prospect Park & C. I. R. R. Co. v. Williamson (supra) it was held that the act of 1853 did not apply to lands taken for depot purposes. In that case the plaintiff’s railroad was an excursion road and the proposed highway passed through terminal grounds, between the depot building and the sea beach about 700 feet in length, occupied in part - by railroad tracks running to high-water mark, plank walks for passengers and by various structures for their accommodation, convenience and pleasure.
In the present case, the route of the proposed street across the island is about 950 feet from its southerly end. All of the buildings constructed or proposed to be constructed are north of - it. The ground south of - the street was designed to be used for making up trains and storing cars. At the time of the trial there had.been built, or were in process of construction, north of the street a train shed and depot, a freight house, an engine house and a coal trestle and pockets. Other terminal structures were in contemplation. The coal pockets, as erected, are thirty feet above the rail of the track, and the 'approach to the coal trestle from the south at the point where' it Crosses the proposed street is about fifteen feet above the grade line of the railroad. Another coal trestle, with accompanying pockets, is in contemplation easterly of the one already erected, and the elevation of its approach' across the proposed street will be
From this general description of the situation it is quite apparent that, for at least two-thirds of the way across the island at the locality of the proposed street, there was no such occupancy, in fact existing or intended, as could fairly be brought within the meaning of the expression “ the track,” as used in the statute and construed by the courts. The roadbed or the roadway was not located on the hundred feet at either end of the proposed street. The tracks at those localities were not for public travel and carriage. The tracks in the cripple yard were to be for storing cars, or for use in repairing them. The coal pockets and approaches were structures necessary in the storage and delivery of freight. It was claimed at the trial that the approaches to the coal pockets could be from the north, and so would not be interfered with by the proposed street. If that change was made, then in that part of the proposed street there would be no track over which the city could compel the plaintiff to carry the highway, and the defendant could not take that part of the property without compensation, even if the fact of condemnation wras not considered.
In a certain sense the whole property of the plaintiff on the island constituted its terminal depot grounds. The question is not whether ally permanent structure of the plaintiff will be interfered with, but
The foregoing considerations lead to the conclusion that the defendant has not the right to compel the plaintiff to carry the proposed street across the island; an dj, therefore, the judgment appealed from is correct. • ■
' The appeal from the order granting an extra'allowance of costs presents the question whether there is any sufficient, basis for the order; The defendant claims that the subject-matter in controversy cannot be reduced to a money value. The - controversy is over the right of the defendant to compel the plaintiff to carry the highway .across the island. The amount of the expense of such work was' directly involved. The right t'o charge it upon the plaintiff was the subject litigated. The amount of the expense was the subject-matter involved. (Code Civ. Proc. § 3253; Hudson Rimer Telephone Co. v. W. T. & R. Co., 135 N. Y. 394; Empire City Subway Co. v. B. & S. A. R. R. Co., 87 Hun, 279). The amount allowed was $1,000,: which seems', to be upon the theory that the -expense of an overhead-crossing could be . considered. That was not necessarily involved.' The plaintiff claims that the damage likely to be occasioned to the approaches to the coal pockets-' could be considered. -That,. ho.w- . ever, was somewhat speculative and incidental,, and within the priii-' ciple laid down in Conaughty v. The Saratoga Co. Bank (92 N. Y. 401, 404), should not .be considered. The expense of a crossing, at grade was a proper basis. The evidence in the case was made a part of thé moving papers." In that there is evidence tending to show that the expense of a suitable crossing at grade would be from $5,000 ■ to $7,000, The affidavits in opposition pist it at a'less figure. The-extra allowance should be reduced to the sum of $250.
All concurred.
Judgment affirmed, with costs.
Order- granting an - extra allowance modified by, reducing the amount to. the. sum of $250, and as- modified affirmed, without costs ■ of-appeal-to either party.
