Colonial City Traction Co. v. Kingston City R. Co.

• Decision Date: 05 October 1897
• Citation: 47 N.E. 810,153 N.Y. 540
• Parties: COLONIAL CITY TRACTION CO. v. KINGSTON CITY R. CO. et al.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 540

47 N.E. 810

COLONIAL CITY TRACTION CO.

v.KINGSTON CITY R. CO. et al.

Court of Appeals of New York.

Oct. 5, 1897.

Appeal from supreme court, appellate division, Third department.

Proceedings by the Colonial City Traction Company against the Kingston City Railroad Company and others to obtain the right to use certain tracks. From a judgment of the appellate division (44 N. Y. Supp. 732) reversing a judgment in favor of petitioner, it appeals. Affirmed.

G. D. B. Hasbrouck, for appellant.

A. T. Clearwater, for respondents.

VANN, J.

The appellant is a street-railroad company, organized April 22, 1896, owning and operating a surface railroad in the city of Kingston, running substantially east and west across the city, but in two sections, each about two miles long, and separated near the middle of the town by a portion of a street known as ‘Broadway.’ The eastern section ends at the central line of Prince street, where it crosses Broadway, and the western section at the central line of Cedar street, where it crosses Broadway, the distance between the two points, as measured on the street last named, being 870 feet. The respondent is also a street-railroad company, organized June 7, 1879, operating a surface railroad in said city upon tracks laid in various streets, and, among others, through Broadway, from the central line of Prince street to the central line of Cedar street. Both railroads are operated by electricity. The appellant, by extending its tracks through Broadway, from Prince street on the east to Cedar street on the west, could connect its eastern and western sections, and thereby save itself the expense, and the public the inconvenience, of transferring passengers by omnibus from one part of its road to the other. The local authorities, up to the time of the trial, had refused to permit the appellant to extend or operate its road through the short strip of Broadway above mentioned, and thus unite the two sections, and the respondent had likewise refused to permit the use of its track over said strip for the same purpose. No effort has been made by the appellant, so far as appears, to obtain the consent of the property owners whose lands abut upon Broadway between Prince and Cedar streets to such extension of its road, or to the operation thereof when extended. This proceeding was instituted by the appellant to acquire by condemnation, under the statute, the right to use the respondent's tracks over the strip in question, upon making proper compensation therefor. The application was resisted, an answer served, and a trial had, which resulted in an adjudication that the proposed use of the respondent's railroad, including ‘poles, wires, and appurtenances,’ was actually necessary, within the meaning of the statute, and commissioners were appointed ‘to determine the extent and the manner in which’ the appellant should ‘have the right to take, hold, and use the said track, poles, wires, incidents, and appurtenances,’ and to ‘ascertain and determine the amount of the compensation to be made’ for the same. An appeal was taken to the appellate division, which reversed the judgment, and dismissed the proceeding, two of the learned justices dissenting. 15 App. Div. 195,44 N. Y. Supp. 732. A further appeal has brought the matter before us for determination.

The proceeding was commenced in March, 1896, and was founded upon section 102 of the ‘Railroad Law,’ which provides, so far as now material, that ‘no street surface railroad corporation shall construct, extend or operate its road or tracks in that portion of any street * * * in which a street surface railroad is * * * constructed, * * * without first obtaining the consent of the corporation owning and maintaining the same, except that any street surface railroad company may use the tracks of another street surface railroad company for a distance not exceeding one thousand feet, * * * whenever the court upon an application for commissioners shall be satisfied that such use is actually necessary to connect main portions of a line to be constructed or operated as an independent railroad, * * * and that the public convenience requires the same, in which event the right to use shall only be given for a compensation to an extent and in a manner to be ascertained and determined by commissioners to be appointed by the courts as is provided in the condemnationlaw.’ Laws 1890, c. 565, § 102, as amended by Laws 1892, c. 676; Laws 1893, c. 434; and Laws 1894, c. 693. The respondent, in opposing the effort to condemn the right to use a part of its track and appurtenances, relies upon section 18 of article 3 of the constitution, which provides, among other things, that ‘no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained, of in case the consent of such property owners cannot be obtained, the appellate division of the supreme court, in the department in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners.’ Const. 1894, art. 3, § 18; Const. 1846, art. 3, § 18, as amended in 1874. Reliance is also placed upon section 91 of the railroad law, which provides, in substance, that ‘a street surface railroad, or extensions, or branches thereof, shall not be built, extended or operated unless the consent in writing, * * * of the owners * * * of one-half in value * * * of the property bounded on, and also the consent of the local authorities having control of that portion of a street or highway upon which it is proposed to build or operate such railroad shall have been first obtained.’ Laws 1890, c. 565, § 91, as amended by Laws 1892, c. 676; Laws 1893, c. 434; Laws 1894, c. 723; Laws 1895, c. 545.

If the consent of the...