Erie Railroad Company v. Board of Public Utility Commissioners and City of Paterson

• Decision Date: 23 June 1916
• Citation: Erie Railroad Company v. Board of Public Utility Commissioners and City of Paterson, 98 A. 13, 89 N.J.L. 57 (N.J. 1916)
• Court: New Jersey Supreme Court
• Parties: ERIE RAILROAD COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS AND CITY OF PATERSON

98 A. 13

ERIE R. CO.

v. BOARD OF PUBLIC UTILITY COM'RS et al.

Supreme Court of New Jersey.

June 23, 1916.

(Syllabus by the Court.)

[Copyrighted material omitted.]

Certiorari by the Brie Railroad Company to the Board of Public Utility Commissioners and another to review orders of the board. Orders affirmed.

There are two writs of certiorari in this case. The first was allowed on June 16, 1915, for the purpose of reviewing an order of the board of public utility commissioners, dated April 20, 1915. The second writ was allowed on July 22, 1915, for the purpose of reviewing an order of the said board dated July 9, 1915, denying the petition for a rehearing of the previous order. The order under review was made by virtue of the alleged power and authority vested in the said board by the statute, P. L. 1913, p. 91, known as the "Fielder Grade Crossing Act," which is a supplement to the act creating a board of public utility commissioners and prescribing its duties and powers. The records of both writs, with the writs allowed seven other prosecutors, for convenience, have been included in the record of the proceedings under the first writ allowed. The prosecutor, the Erie Railroad Company, is ordered to alter 15 grade crossings in the city of Paterson, by changing the grade of the streets and reconstructing the steam railroad according to the plan and profile annexed thereto, by substituting therefor crossings not at the grade of the public highways known as Madison avenue, Straight street, Clay street, Market street, Ellison street, Van Houten street, Broadway, Fair street, Hamilton avenue, Lafayette street, Franklin street, Keen street, Warren street, Putnam street, and River street. The order further directs any telegraph or telephone company, etc., whose property or construction it may be necessary to change or remove, in order to carry said plan and order into effect, to change or remove the same according to said plan. The Erie Railroad Company, the city of Paterson, and all other parties are ordered to proceed with due diligence to the execution of the order and comply with all the requirements thereof. It was ordered that the work shall be begun on or before August 1, 1916, and be completed within eight years from April 20, 1915; that it be prosecuted in accordance with a single plan, but in four separate divisions, marked A, B C, and D. Section A provides for the elimination of the crossings at Market street, Ellison street, Van Houten street, Broadway, Fair street, Hamilton avenue, Lafayette street, and Franklin street. Section B provides for the elimination of the crossings at Keen street, Warren street, and River street. Section C provides for the elimination of the crossings at Straight street and Clay street. Section D provides for the elimination of the crossing at Madison avenue, according to a plan submitted by the Erie Railroad Company, known as Exhibit R-105, at an estimated cost of $192,133.92 less than the plan prepared by the city and which carries Madison avenue over the tracks of the railroad.

River street and Madison avenue are at the two extreme points. Measured along the railroad, the distance is about 10,800 feet, or substantially two miles. Market street, in section A, is practically in the center of the city of Paterson, and is the most traveled of all the streets mentioned in the order. From Market street to Madison avenue, at the southerly end of the work, is about 6,000 feet, and to River street, at the other or northern end, it is about 4,800 feet. From Market to Clay and Straight streets, in section C, it is about 3,000 feet. From Market street to Ellison street, in the same section, it is 600 feet, to Van Houten street 350 feet farther on, to Broadway 300 feet more, Fair street 250 feet, and Hamilton avenue 250 feet, all in the same section, and from Market street to Keen street, in section B, about 4,000 feet, and to River street about 4,800 feet, the most northerly end of the work, thus considering all the crossings mentioned in the petition in one comprehensive plan or scheme.

The order states the time in which each section is to be completed, commencing with section A, in which Market street is included. The Public Service Railway Company, operating trolley lines over three of the crossings, viz., Park avenue and Market street, one crossing, Broadway, and River street, is charged with 10 per centum of the cost of the alterations, including damages to adjacent property directly chargeable to the alteration of those crossings used by the trolley company.

The statute provides the board may order the company operating the railroad to alter the crossing, and the entire expense of such alterations, including damage to adjacent property, shall be paid by such railroad, unless a street railway uses such crossing, in which event an amount of such cost, not exceeding 10 per centum of such expense directly chargeable to the crossing used by the street railway company, is to be paid by such company. The estimated cost of the alteration of the crossings is $2,948,218, for what is called plan No. 2, the one adopted by the board. This does not include damage to adjacent property. The amount of such damage due to changing grades of streets, estimated at $168,500; the amount due to revision of buildings and sidings off the railroad right of way, estimated at $131,922.

The jurisdiction of the board is derived from the provision of the statute, which provides that, "whenever a public highway and a railroad cross each other at the same level and it shall appear to the board that such crossing is dangerous to public safety or that public travel on such highway is impeded thereby, the board of public utility commissioners may order the company operating such railroad" to alter such crossing according to plans to be approved by said board. The order was based upon proceedings initiated by the board of finance of the city of Paterson, being the board directed in the statute, to file a petition in writing for that purpose in which the facts are stated upon which the relief under the act is sought. In the petition it is recited that the Erie Railroad Company operates said railroad by virtue of a lease from two separate railroad companies, viz., the Paterson & Hudson River Railroad Company and the Paterson & Ramapo Railroad Company. Certain facts relating to each of the 15 crossings are alleged, and it prays that the said railroad should be elevated to pass over said highways. A time and place were fixed for hearings, notice of which was given to the corporations therein named. Answers were filed. The testimony was taken before the board commencing on the 17th day of October, 1912, and lasting until February 5, 1915, 18 hearings in all.

From the testimony it appeared that some of the streets mentioned in the petition were laid out after the railroad was built. The charters of the lessor companies (P. L. 1831, p. 29, § 9; P. L. 1841, p. 103, § 11) provide and impose a duty upon the said railroads to construct and keep in repair good and sufficient bridges or passages over and under said railroads or roads, where any public or other road shall cross the same, so that the passage of carriages, horses, and cattle on said road shall not be "prevented" thereby.

The findings of the board were made in a report dated January 11, 1915, which recites the facts on which the order was made, dated April 20, 1915. The board found and determined the crossing of each of the streets involved in the proceeding to be dangerous to public safety and that public travel on such highways is impeded thereby. The board also found that the consideration of the entire subject is simplified by the acquiescence of all parties to the proceeding, and that all the crossings mentioned in the petition must be considered in any plan of elimination. It was not questioned but that a general plan for the separation of grades at the crossings was practicable. There was a difference of opinion between the engineers as to details, but the chief objection raised was to the expense.

Then on February 5, 1915, a petition for a further hearing was filed by the Erie Railroad Company, and on April 20, 1915, the same date as the order, a report by the board was made denying a further hearing, in which it is stated, as to the reduction of train movements, that the company was afforded every opportunity to furnish such proof, if it had any, and did not avail itself of such opportunity; in addition, the offer on this score was so indefinite that it did not appear reasonable to delay the proceedings for that purpose. Then writs of certiorari were obtained by the Erie Railroad Company, Public Service Railway Company, Passaic Water Company, Western Union Telegraph Company, D. Fullerton & Co., Meyer & De Vogel, Fuller's Express Company, and Morris & Co.

On June 15, 1916, a petition for a rehearing was filed by the Erie Railroad Company, and testimony thereunder was taken June 28, 1915, by the board. On July 9, 1915, a report was made by the board, denying the application for a rehearing. On July 22, 1915, a certiorari was obtained by the Erie Railroad Company to review this report, determination, or order, and on the 27th of September, 1915, an order was obtained from a Justice of the Supreme Court, granting leave to take affidavits on two days' notice. Such affidavits or depositions were taken on the part of the Erie Railroad Company, before a Supreme Court examiner on September 30, 1915.

Many reasons have been filed by each of the prosecutors why the order of April 20, 1915, should not be set aside. The reasons of all the prosecutors are substantially included within the 78 reasons filed by the Erie Railroad Company and their amendments, except when the facts specially apply to a particular prosecutor. Under the certiorari obtained by the Erie Railroad Company to review the order denying a rehearing, the Erie Railroad Company has filed...