City of Rochester v. Rochester Ry. Co.

• Decision Date: 06 June 1905
• Citation: 182 N.Y. 99,74 N.E. 953
• Parties: CITY OF ROCHESTER v. ROCHESTER RY. CO.
• Court: New York Court of Appeals Court of Appeals

182 N.Y. 99

74 N.E. 953

CITY OF ROCHESTER

v.ROCHESTER RY. CO.

Court of Appeals of New York.

June 6, 1905.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the city of Rochester against the Rochester Railway Company. From a judgment of the Appellate Division (91 N. Y. Supp. 87,98 App. Div. 521), affirming a judgment for defendant, plaintiff appeals. Reversed.

This action is brought to recover of the defendant the expense of paving between the tracks, the rails of the tracks, and two feet outside of the tracks of the defendant's railway on North St. Paul street and Park avenue in the city of Rochester. The findings of fact were stipulated by the parties. On or about May 31, 1862, the Rochester City & Brighton Railroad Company was incorporated under the provisions of the general railroad act of 1850 (Laws 1850, p. 211, c. 140). The route described in its articles of association is identical with certain of the routes described in the articles of association of the defendant. In June, 1862, the common council of the city of Rochester, by resolution, consented to the construction of a street surface railroad upon the routes designated, and one of the conditions of the grant (section 2) was that the grantee should improve with suitable materials as required by the common council of the city, and in a proper manner, between its tracks, the rails of its tracks, and for two feet four inches outside thereof, and should keep the surface of the street inside the rails and for two feet four inches outside thereof in good repair. The railroad company was authorized in the resolution to collect from every person for riding any distance upon said road a sum not exceeding five cents, except children under five years of age, who were to ride free.

In October, 1862, the railroad company mortgaged its rights, privileges, property, and franchises. This mortgage was duly foreclosed, and at the foreclosure sale the rights, privileges, property, and franchises were purchased by Chauncey B. Woodworth, who, on or about March 5, 1868, associated with himself as such purchaser certain persons, and duly incorporated a company by the name of the Rochester City & Brighton Railroad Company, to continue 99 years, for the purpose of operating the railroad theretofore operated by its predecessor corporation, the Rochester City & Brighton Railroad Company. Immediately after the incorporation the company petitioned the common council, protesting against the onerous conditions of the resolution of 1862, and setting forth the inability of the new corporation to proceed with the operation of the railroad subject to such conditions, and the fact that the road had never paid, owing to the existence of such conditions. Thereafter the common council in January, 1869, duly amended section 2 of the ordinance of 1862 so as to read as follows: ‘The track of said railroad shall be laid so as to permit the free passage of vehicles and carriages over the same, and the rails shall be laid even with the surface of the streets and shall conform to the grades thereof as now established, or as they shall from time to time be established, or altered. Said company shall, as soon after the adoption of this ordinance as the condition of the streets through which their track is laid will permit, put the surface of said streets inside the rails and for one foot outside thereof, in good and thorough repair, under the direction of the committee on streets and bridges of the common council, and shall thereafter keep said streets in good repair inside its tracks or between the rails of their tracks, only during the term of five years, and whenever it becomes necessary to improve, by ordinance or otherwise, any of the streets through which their track is laid, with a new or permanent improvement, said company shall not be required to make any part or portion thereof, nor bear any part or portion of the expense of making the same, during the term of five years from the adoption of this ordinance.’ Shortly after the adoption of this resolution the Rochester City & Brighton Railroad Company submitted to the city authorities a proposed act of the Legislature; whereupon the common council adopted the following resolution: ‘Resolved, That the clerk of this board be authorized to transmit a copy of the bill relating to street railroads presented by the mayor to this board, to the Legislature, requesting said body to legalize the action of the common council by the passage of said bill.’ On or about the 12th day of February, 1869, the act was passed by the Legislature, and is entitled ‘An act for the relief of ‘The Rochester City & Brighton Railroad Company,’' and is known and designated as chapter 34, p. 54, of the Laws of 1869. Its provisions, so far as material, are these:

‘Section 1. The Rochester City & Brighton Railroad Company is hereby authorized and empowered to maintain and operate a railroad in all of the streets of the city of Rochester in which it has a track now laid, and with the permission of the common council of said city, in such other streets in said city as it shall elect to use for that purpose. * * *

‘Sec. 2. Said company, by and with the consent of the common council of said city, may at any time hereafter, abandon the use of any street now used, or which may hereafter be used by it for the operation of its road. * * *’

‘Sec. 4. Said company may, and is hereby authorized to charge, collect and receive from each and every passenger for riding any distance upon its said road, towards or from the intersection of Buffalo street with State and Exchange streets, in said city, the sum of five cents, except that children under twelve years of age shall only be required to pay three cents fare, and children under five years of age, accompanied by parents or other persons having them in charge, shall ride free.

‘Sec. 5. Said company shall put, keep and maintain the surface of the streets inside the rails of its track, in good and thorough repair, under the direction of the committee on streets and bridges of the common council of said city of Rochester; but whenever any of said streets are by ordinance or otherwise permanently improved, said company shall not be required to make any part or portion of such improvement, or bear any part of the expense thereof, but it shall make its rails in such street or streets conform to the grade thereof.’

Thereafter the Rochester City & Brighton Railroad Company continued to maintain and operate its street surface railroad, and, with the consent of the common council, extended its railroad into many other streets and parts of streets in the city of Rochester, incurring thereby large expense and expending large sums of money therefor, the exact amount of which does not appear. The company kept in repair the pavement as required, but whenever a street was improved by a new pavement it was not called upon by the authorities of the city of Rochester to make, or to pay for, any part of such improvement. On the 18th of May, 1880, the common council of the city of Rochester re-enacted the ordinance of 1862, as amended in 1869. On the 21st of January, 1890, the Rochester City & Brighton Railroad Company petitioned the common council for permission to change its motive power from horses to the overhead system of electricity, commonly known as the ‘trolley system.’ The prayer of the petition was duly granted by resolution of the common council. The material to be used and the manner of construction and maintenance were particularly set forth in the resolutions, and it was further provided that, before the grant and consent should become operative, the said company should deliver a written agreement with the city to comply with each and all of the provisions contained in the resolutions, and to well and truly at all times comply with all ordinances and resolutions of the common council of said city not in conflict therewith, which had been at any time before or which might at any time thereafter be passed, relating to the rate of speed, etc., and to the general repairs of the streets within and for two feet outside of and adjoining said company's track or tracks. In accordance with and pursuant to said resolutions, the Rochester City & Brighton Railroad Company, on the 25th of February, 1890, made and entered into the proposed contract in writing, by which the company accepted the conditions imposed.

On the 25th of February, 1890, the Rochester City & Brighton Railroad Company duly executed and delivered to the defendant a lease of all its property, franchises, rights, and privileges of every kind and description for the unexpired term of its charter. Thereafter, in the year 1890, the defendant applied to the Board of Railroad Commissioners of the state of New York for permission to change the motive power of the railroad so acquired by it, and the board duly granted such permission. The defendant, at great expense, proceeded to and did reconstruct the entire railroad, and equipped the same with electrical appliances. The defendant, in acquiring the capital stock of the Rochester City & Brighton Railroad Company, in the conversion of said railroad from a horse railroad to an electrical railroad and in the reconstruction and re-equipment thereof had, prior to the commencement of this action, expended upwards of four millions of dollars, and such expenditure was made by the defendant in reliance upon the provisions of said act of 1869 and in reliance upon said contract of February 25, 1890. The Rochester City & Brighton Railroad Company duly complied with and performed all the conditions of the said contracts by it agreed to be performed, and since the making of said lease the defendant has duly complied with and performed all the conditions and obligations of said contracts on its part to be performed. Since the passage of the act of 1869 and up to March 16, 1897, neither the Rochester City...