Village of Ft. Edward v. Hudson Valley Ry. Co.

• Decision Date: 19 May 1908
• Citation: 192 N.Y. 139,84 N.E. 962
• Parties: VILLAGE OF FT. EDWARD v. HUDSON VALLEY RY. CO. et al.
• Court: New York Court of Appeals Court of Appeals

192 N.Y. 139

84 N.E. 962

VILLAGE OF FT. EDWARD

v.HUDSON VALLEY RY. CO. et al.

Court of Appeals of New York.

May 19, 1908.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by village of Ft. Edward against the Hudson Valley Railway Company and another. From an order of the Appellate Division affirming an order continuing an injunction pendente lite (122 App. Div. 905,106 N. Y. S. 1148), defendants appeal by permission; the Appellate Division certifying two questions. Order affirmed, and questions answered affirmatively and negatively respectively.

Cullen, C. J., and Vann, J., dissenting.

Lewis E. Carr, for appellants.

Edgar T. Brackett and Wyman S. Bascom, for respondent.

HAIGHT, J.

This action was brought to restrain the defendants from constructing a switch on Broadway in the village of Ft. Edward, by which the defendants intended to intersect their railroad tracks. The Delaware & Hudson Company is engaged in operating a double-track steam railroad through the village of Ft. Edward, crossing Broadway, one of the streets of the village, at grade, substantially at right angles. The Hudson Valley Railway Company owns and operates an electric street railroad located in Broadway, through the village, upon a franchise granted September 15, 1900, by the municipal authorities, under which the company is permitted to run, maintain, and operate its railroad with the necessary sidings, switches, and turnouts through Broadway, for the public use in the conveyance of persons and property in cars for compensation by the power of electricity, and its tracks cross those of the Delaware & Hudson Company in Broadway at grade. Certain conditions were imposed by the terms of the franchise with reference to the erection of poles, the locating of tracks, and the maintenance of the street, which are not now necessary to be considered. It is alleged in the complaint that the Delaware & Hudson Company and the Hudson Valley Railway Company are now engaged in building an extension of their said railroads, extending from the tracks of the Hudson Valley Railway Company diagonally across Broadway to the lands of the Delaware & Hudson Company, intersecting and connecting the tracks of the two companies, without the consent of the trustees of the village, and without the consent of the public service commission.

The first question certified for our determination is as follows: ‘Was it necessary for the defendants to procure the assent of the trustees of the village to the construction of their proposed track in Broadway?’ Under section 12 of the railroad law (Laws 1890, p. 1087, c. 565) it is provided that ‘every railroad corporation whose road is or shall be intersected by any new railroad, shall unite with the corporation owning such new railroad in forming the necessary intersections and connections, and grant the requisite facilities therefor.’ In Matter of Stillwater v. M. St. Ry. Co., 171 N. Y. 589, 64 N. E. 511,59 L. R. A. 489, we held that this provision of the statute was intended to promote the public interests, independent of the railroad companies, that the shippers of merchandise and freight have the right to make use of all the facilities required of common carriers by the provisions of the railroad law, and that where one railroad crossed the tracks of another the provision requiring them to intersect their tracks was to enable shippers of freight to avail themselves of the facilities required of each railroad so intersecting the other. The intersecting, therefore, of the tracks of crossing railroads is, in its nature, a public duty, which may be enforced on behalf of the public by the Attorney General, if not by individual shippers of freight, a question which it is not now necessary to determine. When, therefore, the trustees of the village of Ft. Edward granted to the Hudson Valley Railway Company a franchise giving it the right to lay its tracks through Broadway and across the tracks of the Delaware & Hudson Company, they understood that under the provisions of the railroad law, to which attention has been called, it would become the duty of the two railroads to intersect their tracks so that cars could be exchanged from one road to the other, and their grant or franchise must therefore be deemed to have included the right of the railroad companies to so intersect their tracks. But we are of the opinion that this was the extent of the grant made by the trustees of the village. They did not by this grant abdicate their powers under the charter of the village, which devolved upon them the care, management, and control of the streets of the village, and made it their duty to guard and preserve the streets from unnecessary encroachments or dangers to which the traveling public may be subjected. The trustees, therefore, have a right to be heard and to participate in any agreement that shall be made with reference to the place and manner of the intersecting of the tracks of the two railroad companies. This must be so. Otherwise the companies could agree between themselves to run a side track up Broadway to the center of the block or even to the end of the block or into the next block before intersecting their tracks, and thus seriously impair the usefulness of the street for teams and vehicles. Our conclusion, therefore, is that, while the railroad companies have the right to intersect their tracks for the purpose of exchanging cars from one road to the other, yet the village trustees have the right to participate in the determination of the place and manner of making such intersection.

We are thus brought to a consideration of the question as to the practice that should be adopted in determining the place and manner that the intersection should be made. Section[192 N.Y. 145]12 of the railroad law was originally adopted before the advent of electric street railways. In framing its provisions the Legislature doubtless had in mind the crossing of steam railroads, which were generally made upon their own rights of way outside of the public streets, and hence it was provided that in case they should be unable to agree upon the points or manner of such intersection the same shall be ascertained and determined by commissioners, one of whom must be a practical civil engineer and surveyor, to be appointed by the court, as provided in the condemnation law. But since the advent of our modern electric street railroads it often occurs that the crossing of the two railroads is in the public highway within the limits of a city or village, and whenever an intersection is sought at such a crossing it necessarily creates another party in interest, charged with the duty of the care and management of the highway affected, who must be considered in determining the point and manner in which the tracks of the two railroads shall be intersected. Section 11 of the railroad law among other things provides that no railroad corporation shall construct its road in, upon, or across any street of any city without the consent of the corporation of such city, nor across, upon, or along any highway in any town or street in an incorporated village without an order of the Supreme Court of the district in which such highway or street is situated. We thus have in the towns and incorporated villages of the state express power given to the Supreme Court to determine whether a construction upon the highways or streets shall be permitted. Reading this section in...