91 N.Y. 552, Prospect Park & C.I.R. Co. v. Williamson

Citation91 N.Y. 552
Case DateMarch 13, 1883
CourtNew York Court of Appeals

Page 552

91 N.Y. 552



S. STRYKER WILLIAMSON et al., Respondents.

New York Court of Appeal

March 13, 1883

Argued Jun. 9, 1882.

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John H. Bergen for appellant. Chapter 365 of the Laws of 1880 applies to the lands in question, and forbids the opening the highway through said lands without the consent of the plaintiff. ( Town of Duanesburgh v. Jenkins, 57 N.Y. 177.) This land having been once taken for a public use under the right of eminent domain, it cannot be taken again or appropriated for another, or different public use, without an express act of the legislature for that purpose. ( In re A. & B. R. R., 53 N.Y. 574; In re R. Water Comm'rs, 66 Id . 413; In re Buffalo, 68 Id . 167; Mills on Eminent Domain, chap. 5, § 45; In re N.Y. & B. B. R. R. Co., etc., Gen Term, 2d Dept., Feby., 1880.) The highway commissioners have no right to open highways through such lands as these in question without the consent of the owner. ( Clark v. Phelps, 4 Cow. 190; Carris v. Comm'rs of Waterloo, 2 Hill, 443; Laws of 1880, chap. 365.) A highway cannot be laid out over grounds acquired by a railroad for depot purposes necessary for its use, and such act will be restrained by injunction. ( A. N. R. R. Co. v. Brownell, 24 N.Y. 345, 351; 6 Paige, 87; B. & A. R. R. Co. v. Greenbush, 52 N.Y. 510; People v. Kingman, 24 Id . 559-562; Miller v. Brown, 56 Id . 383.) Plaintiff's road being an excursion road its necessities for land are not confined to mere depot buildings and to the ground on which the superstructure of its tracks are laid, but it is necessary that it have land on which structures for the accommodation of the passengers when they are landed from its cars, can be built, that they may be sheltered from storms and have free access to the ocean beach. (Matter of N.Y. C. & H. R. R. R. Co., 77 N.Y. 262; R. & S. R. R. v. Davis, 43 Id . 144, 145, 146; In re N.Y. & H. R. R. Co. v. Kip, 46 Id . 546, 551, 553, 554, 555; In re N.Y. C. R. R., 49 Id . 419; B'klyn Park Comm'rs v. Armstrong 45 Id . 243; People v. Hayden, 6 Hill, 359; Niagara Falls R. R. v. Hotchkiss, 16 Barb. 270; Crowner v. Watertown & R. R. R. Co., 9 How. 457; 104 Mass. 1; Matter of N.Y. C. R. R. Co., 66 N.Y. 409; Brown v. Winnisimmet Co., 11 Allen, 326; Green's Brice's Ultra Vires, 67, 86, 89, 99, 100;

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Flanagan v. Gt. W. Ry. Co., L. R., 7 Eq. 116; Regby v. Gt. W. Ry. Co., 4 R. C. 175.)The question as to whether the land in question and the whole of it is necessary for the purposes of the road is res adjudicata by the proceedings to acquire the land. ( Steinback v. Relief Ins. Co., 77 N.Y. 498, 501.) The act of 1830 was passed when such avenues as the one in question were not thought of, and it does not apply to or cover the case of Surf avenue. ( A. N. R. R. Co. v. Brownell, 24 N.Y. 345, 351; 6 Paige's Ch. 87.) The proposed highway will destroy erections in the company's yard and grounds, and is, therefore, prohibited by the act of 1853. ( A. & N. R. R. Co. v. Brownell, 24 N.Y. 345; People v. Kingman, Id . 559.) Chapter 365, Laws of 1880, was applicable to the land in question and was the law which governed this case on the trial. ( Town of Duanesburgh v. Jenkins, 57 N.Y. 177, 191-2.)

Samuel D. Morris for respondent. The effect of chapter 670, Laws of 1869, is simply to restrict the commissioners of highways in the laying out of highways in the town of Gravesend by requiring them to conform with the plan adopted by the commissioners appointed by said act. The effect of chapter 482, section 9, Laws of 1875, is to authorize the board of supervisors to remove that restriction; it did not authorize the said board to lay out or change highways. ( Phillips v. Schumacker, 10 Hun, 405.) Where two statutes can stand together, the latter will not be held to repeal the former unless the legislative intent to repeal be manifest. ( People v. Palmer, 52 N.Y. 83.) A statute only operates as a repeal of a former one to the extent that the two are repugnant. ( Mongeon v. People, 55 N.Y. 613; S. C., 2 S.C. 128; People v. Deming, 1 Hilt. 271; S. C., 13 How. Pr. 441; Werner v. German S'vgs B'k, 2 Daly, 406.) A statute will not be held to be repealed by implication. ( Mitchell v. Halsey, 15 Wend. 241; Bowen v. Lease, 5 Hill, 221; People v. Deming, 1 Hilt. 271; S. C., 13 How...

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