People ex rel. Third Ave. R. Co. v. Newton

• Decision Date: 08 February 1889
• Citation: 112 N.Y. 396,19 N.E. 831
• Parties: PEOPLE ex rel. THIRD AVE. R. CO. v. NEWTON, Commissioner.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 396

19 N.E. 831

PEOPLE ex rel. THIRD AVE. R. CO.

v.NEWTON, Commissioner.¹

Court of Appeals of New York.

February 8, 1889.

Appeal from supreme court, general term, First department.

The relator, the Third Avenue Railroad Company, in 1853 became the owner of a street surface railroad, with two tracks, and since that time has operated it with horses. In May, 1887, it applied to the supreme court at special term for a mandamus directing John Newton, the commissioner of public works of the city of New York, to grant a ‘permit and authority to begin immediate excavations along its route for the purpose of laying cables in each track as motive power for its cars.’ The writ was granted, but upon appeal the order was reversed, and the application denied. The relator appeals to the court of appeals. The material facts are stated in the opinion.

John E. Parsons, for appellant.

James C. Carter, for respondent.

DANFORTH, J.

It is not essential to a proper treatment of this appeal to determine whether the relator is tied down to a particular method of operating its road, whether its cars may be drawn or propelled, nor whether, if motion is to be given by traction, the pulling shall be done by horses, as at present, or by some other power, animal, mechanical, or vaporous. These questions admit of much argument, and possibly some doubt. But if it should be conceded that its cars may be towed by cable, we should be as far from the solution of the controversy between the parties as if we had not been appealed to. It is our province to determine whether a public officer has mistaken his duty in omitting to obey the direction of a private corporation in regard to the management of streets intrusted to his care, and whether the court below, in refusing to vindicate the corporation, has misconstrued the grant by which the relator obtained the franchise under which it seeks to justify this application. The governing principles in such a case are: (1) The relator must show a clear legal right to the writ. Morthorst v. Railroad Co., 66 N. Y. 609;People v. Wendell, 71 N. Y. 171. (2) Whether it is entitled to have the thing done, may be inquired into both by the party moved against, and by the tribunal applied to. People v. Appraisers, 73 N. Y. 443. (3) The terms of the grant conferring the right which is asserted are to be strictly construed, and the privileges it confers cannot be extended by inference. If there is any ambiguity it must operate against the company; the general rule being that the grant shall be construed most strongly against the party claiming under it, and every reasonable doubt resolved adversely to it. Nothing is to be taken as conceded but what is given in unmistakable terms; and, as was said in Langdon v. Mayor, 93 N. Y. 145, ‘whatever is not unequivocally granted, is deemed to be withheld,’ nothing passing by implication. The affirmative must be shown. The court is not to search for any hidden meaning. Auburn v. Plank-Road Co., 9 N. Y. 444;Langdon v. Mayor, supra. And, coming directly to the case in hand, ‘whenever it has been considered necessary or proper to allow a highway or street to be used to any extent for the purpose of a railroad, the right has been conferred in express terms,’ (Davis v. Mayor, 14 N. Y. 519;) and it is well settled that without legislative authority a railroad corporation has no right to interfere with any public road or street.

In the present case the relator's claim, as described in its petition, stands upon a resolution of the aldermen of the city of New York, passed on the 18th day of December, 1852, and called by the relator the ‘Van Schaik Grant,’ by which privileges were conferred on the relator's assignors, and afterwards confirmed and made effective, as it is claimed, by the legislature. Laws 1854, c. 140; Laws 1860, c. 10. The relator was incorporated in 1853, under the general railroad act, (Laws 1850, c. 140,) and thereafter received, by assignment from the persons named in the resolution, the grant which, as the petition asserts, ‘constitutes its right to own and operate a railroad’ over the route in question. Its franchise of being a corporation, therefore, was derived from the act of 1850, and its powers and privileges as such are limited to those defined in that act and the resolution already referred to. By the resolution it was authorized ‘to lay a double track for a railroad’ in certain streets in the city of New York, under the direction of the street commissioner, upon condition, among others, that it should keep in good repair the space between the tracks, and a space two feet each side of the same in each street in which the rails are laid, and also that the tracks be laid upon a good foundation, with a rail even with the surface of the streets; portions of the road to be completed within a time specified, and a certain other portion ‘as fast as the Third avenue should be graded and in a proper condition to lay rails thereon.’ There was a further condition that ‘no steam-power be used on any part of the road for propelling cars.’ The relator, in 1853, and immediately on receiving this grant, complied with its conditions, and laid its rails upon the surface of the streets through which it was authorized to operate, and adopted the system of traction by horses as a means of furnishing motive power for the running of its cars, and has in that manner continuously operated its road to the present time. It is obvious that the charter, as thus analyzed, contemplates only a road whose operations by way of structure or otherwise shall be limited to the surface of the roadway. It gives no right to open, or excavate, or use below its existing surface. The general railroad law (Laws 1850, c. 140) gives no authority for the construction of street railroads, (section 28, subd. 5;) but, if any right is gained by an organization under that act, the company is by its provisions required after construction to restore the street touched by them ‘to its former state, or to such state as not unnecessarily to have impaired its usefulness.’ The only disturbance of the street, therefore, which is allowed by the charter of the statute is the temporary excavation required for imbedding the ties and stringers which support the track and rails, and, when they are put in place, the work of restoration leaves the surface of the street unbroken, the passage-way even, and the substructure solid. Such is the road which the relator is authorized to construct, and which it did construct. In February, 1887, however, with no additional power or grant from the legislature or the municipal authorities, it resolved, in the language of its directors, ‘to adopt, and,’ as they say, ‘did adopt, the cable system as a means of furnishing a motive power for the operation and running of cars along its route.’ We are not informed of the component parts of that system. But the relator in order to carry forward its scheme, as disclosed by the action of its directors, demanded from the commissioner a permit, as something to which it was of right entitled, to make immediate excavations in and at frequent intervals of space across the public streets through its entire route. No license or word of permission to do so can be found in the charter. The road was completed. The relator had then no right to again disturb the surface of the streets except for necessary repairs and replacing of its ties and rails as occasion might require for the proper maintenance of its road. That power it had. No more. It now, however, asserts a legal right to make excavations, not for any of the purposes of its track or roadway, or the foundation of either, but for the purpose of laying a cable in each track between the present rails as motive power for its cars by the agency of steam from stationary engines. A mere statement of the proposition should be a sufficient answer to the claim. To open a city street for the construction of a surface railroad track, or its reparation, and to open that street for the introduction of a power to operate the road, would seem to be separate and distinct things. In the first, the excavation ends with the construction; the material of the street is replaced, or, in lieu of it, some other substance, which restores the surface to its original unbroken condition and usefulness, and leaves all below the surface to such uses as the municipality may require. In the other case, as the record discloses, the cable requires a conduit of mason-work, the necessary excavation for which, on a straight stretch of road, without curves, is six feet wide and from four to five feet deep. Where there is a double track there must be two of these trenches, and at intervals of 35 feet along the whole distance they must go still deeper for drainage, and, where there are curves, the width of the excavation must be at least from 12 to 15 feet; at a corner the pit will be 30 feet in width; and at the engine-houses, whence the cable extends to the conduit in the street, it will be necessary to excavate the entire street from the engine-room out to and beyond the track furthest from it. None of these things are required for the construction of a street surface railroad, none of them pertain even to its operation. They relate to some act or thing to be done delow the surface. Moreover, the entire surface act or thing to be done below the surface. from one-half to five-eighths of an inch will remain through the entire length of each track,-an opening sufficient to receive the calk of a horseshoe and be the occasion of injury; to receive water and communicate frost to the water or gas pipes or other pipes in the neighborhood of the trenches. Other consequences follow. It is enough however, that the slot furnishes an obstruction to the usual and ordinary use of the street for traffic and travel, whether the horse moves along or across the track, as he may lawfully do.

In the case of People v....