Buffalo Stone & Cement Co. v. Delaware

• Citation: 29 N.E. 121,130 N.Y. 152
• Parties: BUFFALO STONE & CEMENT CO. v. DELAWARE, L. & W. R. CO.
• Decision Date: 01 December 1891
• Court: New York Court of Appeals

130 N.Y. 152

29 N.E. 121

BUFFALO STONE & CEMENT CO.

v.DELAWARE, L. & W. R. CO.

Court of Appeals of New York,

Second Division.

Dec. 1, 1891.

Appeal from superior court of Buffalo, general term. Affirmed.

Action by the Buffalo Stone & Cement Company against the Delaware, Lackawanna & Western Railroad Company to compel defendant to construct a crossing. Judgment for plaintiff affirmed by the general term. Defendant appeals.

The other facts fully appear in the following statement by FOLLETT, C. J.:

The plaintiff owns a farm, which, before any part of it was taken by railroads, contained about 100 acres, and is situated on the east side of Main street in the city of Buffalo. In 1870 the Erie Railway constructed a railroad through this farm, so dividing it that there are about 15 acres between the land of the railroad and Main street, and about 85 acres east of the railroad. The bed of this railroad is raised but slightly above the natural surface of the ground; and to enable the owners of the land to reach and use the 85 acres a grade crossing was constructed where a farm road known as ‘Hewitt Street’ crosses the track. In 1881 the New York, Lackawanna & Western Railway Company, a corporation organized under the laws of the state of New York, laid out and mapped the right of way for a railroad across this farm, parallel to, and about 70 feet east of, the line of the land of the Erie, and began proceedings to acquire the property by condemantion. While these proceedings were pending, the owners of the farm conveyed to the Erie the strip of land lying between its right of way and that which the New York, Lackawanna & Western Railroad was seeking to acquire; reserving, however, a way across it in continuation of the way then in use over the railroad. In March, 1882, the New York, Lackawanna & Western Railway Company acquired by condemnation a strip of land 99 feet wide through this farm, which is bounded on the west by the land of the Erie Railway and on the east by the land of the plaintiff. Shortly afterwards a railroad was constructed, having its bed raised several feet above the natural surface of the ground; and, where it crosses the farm road used in connection with the Erie crossing, the road-way is about 13 feet above the surface. On the 2d day of October, 1882, the New York, Lackawanna & Western Railway Company leased its line to the Delaware, Lackawanna & Western Railroad Company for 499 years, since which time the latter corporations has been in possession and engaged in operating the road. The plaintiff demanded that an under-crossing be constructed in continnation of the Eric crossing, so as to enable it to reach and occupy the land east of the defendant's line. The defendant refused to construct a crossing at this place, but built an over crossing about 550 feet away from the original crossing, and at a point where the grade of the railroad approaches near to the natural surface of the land. This action was begun by Mary Schultz, a former owner, to compel the construction of an under-crossing in continuation of the Erie crossing; but afterwards she conveyed the premises to this plaintiff, and it was substituted in her stead. The special term, before which this action was tried, ordered the construction of an under-crossing at the place designated by the plaintiff; which decision was affirmed by the general term, and thereupon the defendant appealed to this court.

John G. Milburn, for appellant.

Strong & Brendel, for respondent.

FOLLETT, C. J., ( after stating the facts.)

The learned counsel for the appellant strenuously argued that this action in equity is not, but that a mandamus is, the appropriate remedy to compel a railroad corporation to construct a crossing pursuant to the statute. This objection, not having been taken by the answer or on the trial, is not available in this court. Mentz v. Cook, 108 N. Y. 504, 15 N. E. Rep. 541. For defenses on the merits the defendant insists (1) that the plaintiff is not an adjoining proprietor; (2) that, it being a foreign corporation and lessee of the railroad, it is under no obligation to build a farm crossing; (3) that the crossing ordered by the judgment is not a farm crossing within the statute. The statute provides: ‘Every corporation formed under this act shall erect and maintain fences on the sides of their road of the height and strength of a division fence required by law, with openings or gates or bars therein, and farm crossings of the road, for the use of the proprietors of lands adjoining such railroad.’ Section 44, c. 140, Laws 1850. It is also provided: ‘And when the railroad of any railroad corporation shall be leased to any other railroad company, or to any person or persons, such lessees shall maintain...