In re Niagara Falls & W. Ry. Co.

• Decision Date: 28 February 1888
• Citation: 108 N.Y. 375,15 N.E. 429
• Court: New York Court of Appeals Court of Appeals
• Parties: In re NIAGARA FALLS & W. RY. CO.

108 N.Y. 375

15 N.E. 429

In re NIAGARA FALLS & W. RY. CO.

Court of Appeals of New York.

February 28, 1888.

Appeal from general term, supreme court, Fifth department.

This was an application by the Niagara Falls & Whirlpool Railway Company to acquire certain real estate belonging to the De Vaux College and others, to be used as a right of way. Judgment below was against petitioner, and it appealed.

Norris Morey, for appellant.

A. K. Potter, for respondent.

ANDREWS, J.

There is a question in limine which it is necessary to decide in favor of the petitioner before the other questions argued become material. This is the question whether the purposes for which the Niagara Falls & WhirlpoolRailway Company is organized are public in such a sense as to justify the taking of lands in invitum for the construction of its road, in the exercise of the power of eminent domain. The Niagara Falls & Whirlpool Railway Company is a corporation, organized in January, 1886, under the general railroad act of 1850. The articles of association declare that the company is organized for the purpose of ‘constructing, maintaining, and operating a railroad for public use in transporting persons and property, of the gauge of not more than three feet and six inches, and not less than thirty inches within the rails.’ The route of the road is described as ‘commencing at a point near the foot of the inclined railway, which extends from Prospect park to near the easterly margin of Niagara river, such point of beginning veing a short distance below the foot of the American falls, on the American side of the Niagara river in the county of Niagara, and running thence (by the most direct and feasible route) along the easterly margin and near the water's edge of said Niagara river, and terminating at a point on said easterly margin of said Niagara river, about four hundred feet below, and northerly, from the foot or outlet of the portion of Niagara river commonly known as the ‘whiriool.”

It is necessary to a just understanding of the question presented to refer to some additional facts disclosed by the evidence. The Niagara river, from the foot of the American falls, flows northerly for several miles with a very rapid current, and the river on either side is faced by precipitous cliffs; that on the American side rising from near the of the river to a height of from 150 to 200 feet, to the table-land above. The river, from the falls to the point known as ‘The Whirlpool,’ is interesting, and persons visiting the falls have been enabled, by means of what is known as an ‘inclined railway,’ to descend from the top of the bank or table-land to the margin of the river. This railway was originally a private enterprise, but is now included in the land taken by the state for a state reservation. The ‘Whirlpool’ adjoins the lands of De Vaux College. The college has constructed a stairway leading down to the margin of the river at this point for the convenience of visitors, and derives a revenue from its use. The petitioner has located its road along the margin of the river, outside of the cliff, where the space is sufficient between the cliff and the river to permit the track to be laid, and at other points, where the cliff rises with more abruptness from the margin, the location contemplates cutting into the face of the cliff for the roadway. The proposed road does not connect at either end with a highway. It can be reached only by passing over the lands of the state or the lands of private owners. There can be no habitations along the line of the road, and no traffic, or commerce, or business, except in conveying passengers over the road to see the river and the ‘Whirlpool,’ and returning them again to the point from which they started. The season for visitors at the falls is substantially confined to June, July, August, and September. The proposed road cannot be operated during the winter on account of the piling up of the ice, and, if its operation was practicable in the winter season, it would have nothing to do. It is apparent that the proposed enterprise has been undertaken and is to be carried on for the sole purpose of furnishing sight-seers, during about four months of the year, greater facilities than they now enjoy for seeing the part of Niagara river along which the proposed road is to be constructed. Soon after the passage of the general railroad act of 1850, the question was raised as to the validity of the act in so far as it attempted to confer upon any corporation which might thereafter be created under its provisions the power to determine when and what private property might be compulsorily taken for the purposes of its road, and it was held that the act was a constitutional delegation of the power of eminent domain. Railroad Co. v. Brainard, 9 N. Y. 100. The expediency of this legislation has been questioned. In the infancy of railroad enterprises there was little danger that railroads would be projected, not required by public necessity, or where the public interests would not be subserved by their construction; but the plan of permitting any persons who might deem it for their interest to do so, to unite and organize a railroad corporation and to fix the route, subject practically to no supervision or control by any public authority, and to invade and take private property for the purposes of the road wherever the company should see fit to locate it, is attended with some unquestionable evils. It is probably true that many speculative railroad enterprises have been initiated and carried on under this liberal legislation, which would not have been authorized if a special charter in each instance had been required, or if the power of determining as to the necessity of the road had been lodged with some...