In re Metropolitan Transit Co.

• Decision Date: 15 January 1889
• Citation: 111 N.Y. 588,19 N.E. 645
• Parties: In re METROPOLITAN TRANSIT CO.
• Court: New York Court of Appeals Court of Appeals

111 N.Y. 588

19 N.E. 645

In re METROPOLITAN TRANSIT CO.¹

Court of Appeals of New York.

January 15, 1889.

Appeal from supreme court, general term, First department.

Petition by the Metropolitan Transit Company to ascertain the compensation to be made to the city of New York for the use of streets, etc., for its railroad. The order of the special term appointing commissioners was reversed at general term, and the transit company appeals.

Esek Cowen, George W. Wingate, and J. A. Davenport, for appellant.

Elihu Root and T. P. Wickes, for respondent.

DANFORTH, J.

By chapter 833 of the Laws of 1872, the legislature created a body corporate under the title of the ‘Metropolitan Transit Company.’ Its capital stock was fixed at $5,000,000, with liberty to the stockholders to increase it, but accompanied by a provision that ‘work on the road authorized by the act should not be commenced until ten per cent of the capital stock shall have been paid in, in cash.’ The corporation so created was endowed with all the powers and privileges, and made subject to all the provisions, of the act of 1850, c. 140, so far as the same were consistent with the provisions of the act first mentioned, (1872, c. 833,) and authorized to construct a railroad on the line described in the act, and beneath and over certain specified streets in the city of New York. The act indicates the streets and routes, forming a main line and branches, and the use and occupancy of the streets are limited by its provisions. Sections 3, 4. The route or line described was to begin at Broadway, opposite Bowling Green, and terminate, after passing through the enumerated streets, at the ‘Harlem river;’ and there were three branches, the first from a point south of Forty-Second street, on and to connect with the line described in the act above referred to, ‘easterly and northerly to the Grand Central depot, at Forty-Second street and Fourth avenue.’ The act also provided that ‘the exact location of the lines of the three branches heretofore authorized shall be such as is deemed most practicable, and best calculated to promote the public interests, by a board to be composed of the state engineer and surveyor, the chief engineer of the Croton aqueduct, and an engineer to be appointed by the corporation hereby created. The necessary surveys and maps for determining the lines of said branches shall be made under the direction of the said board of engineers, at the expense of the corporation hereby created.’ The line prescribed in some instances passed through private property, and the act declared that the road should be constructed upon property ‘to be purchased or acquired’ and that the corporation might purchase and occupy a space not more than 50 feet in width upon the lines indicated, and might also make the necessary connections, stations, etc., and acquire land necessary for those purposes, and, if unable to do so by purchase through inability to agree with the owners, it might obtain title ‘in the manner and by the proceedings prescribed for acquiring the title to real estate for railroad purposes in and by the general railroad law of this state, [Laws 1850, supra,] and the acts amendatory thereof,-all the provisions of which, relating to acquiring the title to real estate, are hereby extended so as to apply to any property, rights, franchises, or interests required in the construction of said railroads, except that in the petition to the supreme court in said proceedings it shall only be necessary to describe the real estate, property, rights, franchises, or interests which said corporation seeks to acquire; to aver that the same are required for the construction or operation of the railroads authorized by this act, describing particularly the proposed route of said roads; and to allege that said corporation has not been able to acquire title to said property, rights, franchises, or interests; and the reason of such inability. * * * It shall not be necessary that the petition to the court shall make any allegation of or reference to any corporations, capital stock, surveys, maps, or the filing of any certificate of location.’ It also provides that ‘where the route or routes of the railroads herein authorized to be constructed and operated shall be along any street, avenue, or public place, the said corporation shall compensate the corporation of the city of New York for such use or occupancy of said streets, avenues, or public places; the amount of such compensation to be determined in the same manner as damages to private property.’ The corporation so formed was given (section 12) six months from the time of ‘the first election of directors within which to commence the construction of the said railways, and one year thereafter within which to complete at least one of said railways to the Harlem river, and one branch road to the Grand Central depot at Forty-Second street and Fourth avenue.’

On the 28th of December, 1875, the company so formed presented a petition to the supreme court; stating, among other things, ‘that it is the intention of said company, in good faith, to construct, operate, and maintain a railroad on the lines mentioned in said act, and the necessary sidings, switches, depots, and work-shops, and to convey passengers, freight, and property in cars propelled by steam-power, as mentioned in said act;’ that it desires to ascertain the amount which under its charter must be paid to the city in relation to the construction of its road in such portions of the streets as are required for the described routes, referring to the act of 1872; and stating that they have been unable to agree with the city authorities as to the required amount, and they ask for the appointment of commissioners of appraisal to ascertain the same. The hearing on this petition was adjourned from time to time, at the petitioner's request, to March, 5, 1886, and then, upon condition that no further postponement should be asked for, it was, by consent of the corporation counsel, and at request of petitioner, adjourned to March 8, 1886. On the 23d of April, 1887, the petitioner was by the order of special term permitted to have the hearing go on upon a supplemental petition which brought before the court an act of the legislature passed in 1881, c. 636, amending the act ( supra) of 1872, and also stated the location of the new routes by the board of engineers differing from those first determined upon. The act of 1881 authorized the filling of maps, extended the time within which to complete surveys, and declared that the ‘time required in section 12 of said act for the commencement of the construction of said roads shall be deemed not to have commenced until the making and filing of said maps, which shall be done within 12 months after the passage of this act.’ The supplemental petition reiterated the prayer for the appointment of commissioners of appraisal, and the city answered, putting in issue many of the allegations of the petitioner, and denying, among other things, that it is the intention of the company to construct...