100 Misc. 493 | N.Y. Sup. Ct. | 1917
This suit in equity was commenced by William Foster, the plaintiff’s testator, who died pending the final submission of the case for decision. The suit was revived in the name of the plaintiff.
The complaint alleges that Foster is the owner in fee and in possession of premises at the southwest corner of Bridge and Plymouth streets in the borough of Brooklyn, city of New York. The property consists of a five-story factory building, eighty-three feet on Plymouth street and fifty feet on Bridge street. The complaint alleges ownership in the plaintiff since the year 1891 of the property mentioned, with “ certain rights and easements to the streets lying immediately in front of and adjoining said premises, to the centre lines thereof, respectively.”
It is charged that the defendant, without the consent of the plaintiff, and without any other lawful right or authority, and without making any compensation to the plaintiff, did on or about October, 1916, construct a railroad in Plymouth and Bridge streets, directly in front of plaintiff’s premises and across the sidewalk in front of plaintiff’s property, for the purpose of operating such railroad as a freight carrying road, and it is alleged that the defendant is operating freight cars thereon between the dock or terminal at the foot of Jay street, Brooklyn, and certain private
The defendant, answering, alleges that it is a domestic railroad corporation, formed by the consolidation of two former domestic railroad corporations, and avers that its railroad is constructed and is operated in accordance with its certificate of incorporation, and the consent of the city of New York duly had and obtained and with the permission and approval of the public service commission. It alleges that it is lawfully in the highway and that it has the right to operate its railroad in the street and across the sidewalk in front of plaintiff’s premises, despite Ms objections.
There was a full discussion of the legal questions involved upon the trial, and they are fully set forth in the stenographer’s minutes. After the conclusion of the trial, I ordered a reargument on the legal question whether the defendant company has any right to operate this railroad in the public streets, and this reargument is also fully reported. I then stated my views that the statutes do not authorize the operation of defendant’s railroad in the highway, and gave the reasons for my conclusions. Perhaps it is unnecessary to add to what is there said.
At the outset, I find that the plaintiff does not own the fee of either Plymouth or Bridge streets. His complaint must stand or fall on his rights to the easements of light, air and access, as an abutting owner, under the doctrine established in the Story and Lahr
I may also say that on the evidence I find that the defendant has obtained the constitutional consents of the abutting property owners on Plymouth and Bridge streets to the operation of the railroad in those streets. The plaintiff has not consented, and the consents obtained by the defendant are from large mercantile and manufacturing concerns which own a great deal of real estate in the neighborhood, with a frontage on the highways used, which enables them to supply the consents of property owners in the requisite amount. Most, if not all, of these mercantile and manufacturing concerns are interested in, and have connections with, defendant’s railroad in the streets mentioned and in other public highways in the vicinity by means of spur tracks, or turnouts, running from the railroad in the middle of the street, into their various establishments .on either side. The defendant oper
But whatever may have been the legal aspect of the contract, exhibit “ C,” the scope of the defendant’s operations was most decidedly extended by the amended contract with the city, acting through the board of estimate, on November 15, 1915, under which defendant is now operating (exhibit F). A reference to the maps or plan at the end of this contract discloses, what is to me, a most remarkable enterprise and a use of the public streets in the city of New York never attempted in any previous undertaking that I have heard of. It will be found that the defendant’s railroad, running out of the railroad yard on the water front, known as the “ Jay Street Terminal,” runs southerly and westerly across and along John, Plymouth, Water and Front streets, east and west; and Jay, Adams, Washington, Main and Bridge streets, running north and south, connecting the “ Jay Street Terminal,” which is the defendant’s northerly or northeasterly terminus, stated as required by law in its certificate of incorporation, with several so-called westerly termini — several of them — also stated in the certificate of incorporation, as required by law,
Now, I have no doubt that the learned counsel for the defendant is sincere in his argument that the defendant is really benefiting the various highways occupied by its railroad. He avers that if it were not for the defendant’s railroad these streets would be congested with vehicular traffic, trucks, wagons and the like, and in his claim asserted with much earnestness that this is a legitimate use of the highway — a use not inconsistent with the primary object and use of the public highway.
But I am constrained to differ with the defendant. I do not think- the railroad of the defendant corporation is a railroad within the contemplation of the provisions of the Railroad Law, under which it is ineor
As I suggested at the trial, if this may be done, with these particular streets, the same method may be adopted with Clinton or Washington avenues in Brooklyn or with any of the city thoroughfares which have the good or bad fortune to cross or touch a railroad terminal in any of the boroughs of the city of New York. If it is necessary to use the streets of the city of New York for any such purpose, it seems to me, the proper method is to close the streets by due legal process in which the rights of the city, the abutting property owners and the general public can be ascertained and protected. This method was adopted in 1902-1903 when the Pennsylvania Railroad constructed its terminal in the borough of Manhattan, and when the Sunnyside freight terminal or yard was established in Long Island City. To attempt to use the public streets, as contemplated by the defendant under the contract in evidence, is to my mind entirely unwarranted.
Again, this use of the public streets in New York city, for railroad purposes, under the contract, exhibit F, seems to me to be in contravention of the statute. In 1860 the legislature forbade the construction and operation of railroads in the streets of New York city, save under express regulation to be prescribed by the legislature (Laws of 1860, chap. 10). And after various plans and methods adopted, by means of elevated railroads, rapid transit acts, tunnel railroads and the like, a so-called street surface railroad law was enacted (Laws of 1884, chap. 252, as amended), designed to apply to New York city. Passing for the moment the question whether the use of the surface of the streets of New York city for a freight railroad exclusively
And it seems to me that the situation suggested by the Appellate Division in this department in De Grauw v. Long Island Electric R. R. Co., 43 App. Div. 502; affd., on opinion below, 163 N. Y. 597, is here presented concisely. While in that case, the use of the streets by express cars running on the tracks of a street surface passenger railway was allowed, the possibility of an unlawful extension of the doctrine was clearly in the mind of the court when it said, through Judge Hatch: “ In the struggle which is going on for the transportation of persons and property, it must be confessed that street surface railroads are not backward in the assertion of all the rights which the grant of power confers. But the law is, and the courts may be relied upon to enforce the law, that the right of use of the street by the public is first and primary; the right of use by the street surface railroad is secondary and subordinate. It has the paramount right to the use of its tracks, but not the exclusive use, and when the right of the public
The case at bar seems to call for interference by the courts at the suit of an abutting property owner. The doctrine of Fanning v. Osborne & Co., 102 N. Y. 441; Brooklyn Heights R. R. Co. v. Steers, 213 id. 76; Hatfield v. Straus, 189 id. 208, seems opposed to the defendant’s plan of operation. Indeed the criticisms of Mr. Justice Clarke in the Appellate Division, in his opinion (117 App. Div. 671) are exactly applicable to the enterprise of the defendant. It is impossible to imagine a public highway in the city of New York, for the use of pedestrians and vehicular traffic, with a freight railroad in the middle of the street, and Avith spurs running right and left across the sidewalks on either side, into private establishments, over which freight trains are to be operated and freight cars to be delivered and received. I cannot subscribe to the legality of such attempted use of the public highways in the city of New York.
The case of Clarke v. Blackmar, 47 N. Y. 150, cited by defendant’s counsel in his brief, has no more application to the case at bar than it had to the Steers case,
The sections of the General Railroad Law, on which defendant relies for its corporate existence, the language of the certificate of incorporation describing the railroad and its so-called “ terminii ” on private property— the absence of all reference to the provisions enacted for the protection of the city streets in article IV of the Railroad Law, seem to warrant the plaintiff’s complaint, that it has no right to use the streets and sidewalks in his locality as it is attempting to use them. Judge Peckham writing for the Court of Appeals in Matter of Washington St. A. v. P. R. R. Co., 115 N. Y. 442, said: “ One or two expressions in opinions written by judges of this court have been cited as evidence that the general railroad act of 1850 had no application to street railroads. The cases from which these extracts have been taken are: New York Cable Co. v. Mayor (104 N. Y. 1-14); Matter of New York District R. Co. (107 id. 42, 53, 54); People ex rel. Third Ave. R. R. Co. v. Newton (112 N. Y. 396). Each one of the above cases arose in'New York city, and in regard to that city it is admitted that the general railroad act has now no application, for, by chapter 10 of the laws of 1860, it was made unlawful to thereafter lay, construct or operate a railroad in New York city except under
The defendant, in my opinion, has entirely disregarded this statute of 1860— it is endeavoring to operate a street surface railroad in the city of New York without reference to the restrictions of the street surface railroad article in the general law, and the entire purpose of its organization and methods “ differs as wide as the poles from ideas which were in the minds of the legislators ” in enacting the provisions of the Railroad Law of the state of New York and the Greater New York charter, governing the use of the public highways by railroads. Matter of People’s Rapid T. Co. v. Dash, 125 N. Y. 103.
I must therefore hold that the defendant’s use of Plymouth and Bridge streets is unlawful and give judgment for the plaintiff, with costs.
Ordered accordingly.