182 A.D. 399 | N.Y. App. Div. | 1918
Two questions arise on this appeal which are entirely distinct and should not be confused: First, is the railroad unlawfully on the street as to the public, and, second, does it impair plaintiff’s easements in the streets appurtenant to his abutting property?
The right to use the streets as highways is in the public at large. The Legislature, representing the people, controls the right and can modify or abolish it at pleasure. I know of no limitation to that power except under sections 18 and 20 of article 3 of the Constitution. Providing it is not done by private or local bill, and has the assent of two-thirds of the members elected to each branch, and the requirements of section 18 of article 3 of the Constitution as to street railroads are complied with, the power of the Legislature to dispose of the streets and highways, so far as the rights of the public are concerned, has no constitutional limitation.
There is strong reason for holding that the certificate of public convenience and a necessity given by the Public Service Commission is conclusive evidence that the use is a public one. This seems to be the decision in People ex rel. Steward v. Railroad Comrs. (160 N. Y. 202). Chief Judge Parker, in sustaining the power to review the determination of the railroad commissioners on the question of “ public convenience and a necessity ” for the construction of a railroad, held that the determination was final and could not be attacked collaterally. It is true that the terms “ public use ” and “ public convenience and a necessity ” are not identical in meaning. A public use may not be a “ public convenience and. a necessity,” as in the case of parallel railroads; but I conceive it can hardly be said that the operation of a railroad is a public convenience and a necessity unless it is a public use. (People ex rel. N. Y. C., etc., Co. v. Public Service Commission, 195 N. Y. 157.) The question whether a use is a public one is a judicial question. (Matter of Niagara
But I believe that the use was a public one. It is different in principle from the use considered in Fanning v. Osborne (102 N. Y. 441); Hatfield v. Straus (189 id. 208) and Brooklyn Heights R. R. Co. v. Steers (213 id. 76); upon which cases this respondent relies. The defendant’s railroad is an integral part of the transportation system of the country. The freight which it receives over the spurs and sidings from private factories is taken to the water front, loaded on barges, transferred to railroads, and becomes part of the interstate and intrastate commerce of the country. It is a connecting road which acts as agent and issues bills of lading for every trunk line that reaches the port. The section of the city where its tracks are laid is devoted largely, if not exclusively, to factories. The defendant leads its tracks to the doors of many of these factories, and by its contract with the board of estimate and apportionment it is bound to extend its service to others where practicable. The moment that a carload of freight is taken from the factory upon the streets it is in transit and its movement to its destination has begun. The defendant company is, I think, engaged in public service as much as any trunk line railroad. It runs its tracks and sidings into private property; but that is part of the obligation of public service and may be compelled. (Pub. Serv. Comm. Law [Consol. Laws, chap. 48; Laws of 1910, chap. 480], § 27.)
In Brooklyn Heights R. R. Co. v. Steers (supra), Judge Cardozo, writing for the court, said: “ We are not required • at this time to say that a franchise which distinctly authorized the construction of sidings such as the one complained of, would be illegal. It is enough at this time for us to hold, as we do, that no such franchise has been granted.” In the case at bar exactly such a franchise has been granted, for the contract with the board of estimate and apportionment author-, izes the defendant to construct the sidings complained of. The Steers Case (supra) is, therefore, not an authority against their legality. I think that the case of Clarke v. Blackmar (47 N. Y. 150) is direct authority that a franchise like the one attacked in this case is for a public use. That was a railroad siding built through the streets of Buffalo from a grain elevator operated by the defendants' Blackmar and Baxter, to the Grand Trunk and New York Central road under authority of the common council of Buffalo. The words of the charter of Buffalo were broad enough to authorize the grant of such a franchise, but it was objected that the use was not a public one, for it served only Blackmar and Baxter, and that the common council of Buffalo had no authority to grant the right to use the streets for private purposes. This is exactly the same objection made in the case at bar. But the court in that case said: “ The track is not private, but must be regarded as a branch track of the New York Central and Grand Trunk; and the fact that the elevator, in the transaction
The defendant railroad was organized under the General Railroad Law of 1890 (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], as amd.), which revised the General Railroad Law of 1850 (Laws of 1850, chap. 140, as amd.), and it is claimed that chapter 10 of the Laws of 1860 prevents organization under any law except those passed subsequently thereto. This law, if applicable, would prevent organization under the act of 1850. But the act of 1860 applied only to the territory of the city of New York as it was then. Its enactment was motived by conditions then existing within the limits of the city of New York. It did not concern the political government, then known as the Mayor, Aldermen and Commonalty of the City of New York; but it was for the protection of certain streets then embraced in the city. The consolidation of municipalities into Greater New York did not affect the territorial application of that act. (Matter of O’Brien v. Boyle, 219 N. Y. 195.)
Neither is the provision .of the Railroad Law (Consol. Laws, chap. 49 [Laws of 1910, chap. 481], § 173) requiring that franchises should be sold at public auction applicable to this case. The provisions of the Railroad Law concerning street surface railroads (Laws of 1884, chap. 252, and amendments) show on their face that the requirement applies only to the roads commonly known as street railroads whose primary function is to carry passengers from one part of the city to another, and not to the defendant, whose road is part of the trunk line freight carriers. Besides, that section 173 of the Railroad Law contains the following provision: “ Nothing herein contained shall apply to, or affect any grant hereafter made under the provisions of title one, chapter three of chapter three hundred and seventy-eight of the laws of eighteen hundred and ninety-seven and the amendments thereto known as the Greater New York Charter.” The defendant’s franchise was granted- under such provision of the charter (Laws of 1901,
On broad principles of public policy, this is the conclusion which should be reached. The commerce of the port of New York is limited by its terminal facilities. New York city is the greatest manufacturing locality in America; its industries live only as they are nourished by the streams of commerce bringing in the raw material and carrying out the finished product. From the small section of the city lying near the water front on the Brooklyn side of the East river, beneath the viaducts of the Brooklyn and Manhattan bridges, there move over the defendant connecting railroad over 700,000 tons of freight a year. To inject this into the arteries of commerce by facilities for actual handling is a serious problem, and the continued commercial supremacy of the city depends in part on the way in which it is solved. A decision which would prevent the use of the streets of those parts of the city given over to factories, for economical movement of freight by means of tracks and sidings, would be a serious blow to New York city’s commerce. Marginal roads, connecting roads, all facilities for gathering freight at the factories, would be impossible, and the city of New York must continue to carry its commerce handicapped by the use of archaic and costly means of bringing its freight to the rail carriers. To adjudge the validity of the franchise in question does hot mean the surrender of streets to railroad companies to the danger and inconvenience of the people. The board of estimate and apportionment, the Public Service Commission and the owners of the abutting property may be safely trusted to protect the interests of the citizens.
There remains to consider whether the defendant’s track and the operation of the road in Plymouth street constitute a taking of plaintiff’s property. If so, it should be enjoined until compensation is made. The case of Williams v. New York Central Railroad Co. (16 N. Y. 97) holds that when the
But if the abutting owner does not own the fee of the bed of the street, a surface railroad in the street does not take his property, and any damage which may be caused his property is damnum absque injuria. (Drake v. Hudson River R. R. Co., 7 Barb. 508; People v. Kerr, 27 N. Y. 188; Kellinger v. Forty-second St., etc., R. R. Co., 50 id. 206; Fobes v. R., W. & O. R. R. Co., 121 id. 505.) The rule applies whether the street is an urban street or a rural road, and whether the motive power is the horse, electricity or steam. This doctrine is so limited that if it be found that the occupation of the street is exclusive, permanent and of such a nature as to deprive the owner of such uses of the street as are appurtenant to his abutting property, usually called the easements of light, air and access, the road, although legal so far as the rights of the people are concerned, is illegal as tó him until compensation is made. The elevated railroad cases rest on this principle (Story v. New York Elevated R. R. Co., 90 N. Y. 122; Lahr v. Metropolitan Elevated R. Co., 104 id. 268; Kane v. N. Y. E. R. R. Co., 125 id. 164), and the saméis the case with other permanent and exclusive occupations of the street for railroad purposes which take easements in streets appurtenant to abutting property. (Reining v. N. Y., L. & W. R. Co., 128 N. Y. 157; Egerer v. N. Y. C. & H. R. R. R. Co., 130 id. 108.) If the use of a street by a railroad lawfully there is so excessive and unreasonable as to deprive an owner of abutting property of his easement therein, he is entitled to his remedy. (Mahady v. Bushwick Railroad Co., 91 N. Y. 148.) But no case of which I am aware goes so far as to hold that rails laid on the surface of the street without change of grade, and the reasonable use thereof, constitute a taking of easements in the street. This is all that the defendant has done.
Present — Jbnks, P. J., Thomas, Rich, Putnam and Blackmar, JJ.
Judgment reversed, and judgment unanimously directed for defendant dismissing the complaint on the merits, with costs. Order to be settled before Mr. Justice Blackmar.
See, also, Laws of 1917, chap. 801, since adding to said § 27, subd. 3. — [Rep.