Rochester, H.&L.R. Co. v. New York, L.E.&W.R. Co.

• Decision Date: 19 June 1888
• Parties: ROCHESTER, H. & L. R. CO. v. NEW YORK, L. E. & W. R. CO.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 128

17 N.E. 680

ROCHESTER, H. & L. R. CO.

v.NEW YORK, L. E. & W. R. CO.¹

Court of Appeals of New York.

June 19, 1888.

Appeal from general term, supreme court, Fifth department.

The plaintiff corporation was organized June 9, 1886, for the purpose of constructing a railroad commencing in the village of Canisteo, Steuben county, and terminating at a point on the line of the Lackawanna & Pittsburgh Railroad Company in the town of Burns, Allegheny county. It had surveyed and located the line or route of its proposed road, and had made and duly filed a map of the same. Notices were served on the occupants or owners of lands over which the road was located, including these defendants, and by no proceeding has the line so located been changed. The line, as located, for some distance, was along lands of the defendant corporation, upon which its tracks were laid. Plaintiff has acquired the right of way for the greater portion of its route, and is proceeding, in good faith and with diligence, to acquire the land necessary for its route, and to construct its road. At the portion of its line where it adjoined the defendants' lands, and on the lands of the defendant Babcock, the defendant corporation, after it had been served with the notice of plaintiff's proposed route, constructed a switch from its tracks across the plaintiff's line to a brick-yard; taking a lease from Babcock for three years of a piece of land between its road and said brick-yard. After the defendant company had constructed its switch, the plaintiff caused the track to be taken up and removed, and laid down a section of its own track, on which it also placed rails, and procured and served an injunction restraining the defendant company from interfering with its road-bed. But defendant, in disregard of the injunction, on the same day, tore up and removed plaintiff's section of track. The plaintiff had not yet purchased the right of way across Babcock's lands, nor had it instituted proceedings to condemn the same. Defendant Babcock, after receiving the notice from plaintiff of the filing of its map, etc., commenced a proceeding to change the plaintiff's route, which was ultimately dismissed for want of jurisdiction. The injunction obtained by the plaintiff was dissolved at special term; but, on appeal, the general term reversed the order of the special term, and restored the injunction. From the order of the general term, restoring the injunction, the defendant company has appealed to this court.

James H. Stevens, Jr., for appellant.

Frank S. Smith, for respondent.

GRAY, J., ( after stating the facts as above.)

The learned judge at special term vacated the injunction theretofore granted, restraining the defendant corporation from interfering with the plaintiff's road-bed, on the ground that the plaintiff had not acquired title to the land, nor any right to occupy it. He stated, in his opinion, that the proceeding of defendant was ‘outrageous,’ but considered the court could not interfere. In their opinion, the general term considered that a case had been made for the allowance of a preliminary injunction, and that the same should be continued pendente lite, on the ground that the plaintiff had acquired a vested and exclusive right to construct and operate its railroad on the line it had located. We think the general term were right in the view they took of the matter. The plaintiff, by its organization under the general railroad act of 1850, became possessed of the franchise to construct and operate a railroad between the terminal points...