In re Rochester Elec. Ry. Co.

• Decision Date: 28 October 1890
• Citation: 25 N.E. 381,123 N.Y. 351
• Parties: In re ROCHESTER ELECTRIC RY. CO. In re WILKIN et al.
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 351

25 N.E. 381

In re ROCHESTER ELECTRIC RY. CO.

In re WILKIN et al.

Court of Appeals of New York.

Oct, 28, 1890.

Appeal from supreme court, general term, fifth department.

The petitioner was organized under chapter 252, Laws 1884. In November, 1887, it acquired, for a consideration, the consent of the Rochester & Charlotte Turnpike Company for the construction and operation of a street surface railway on the highway leading from Rochester to Charlotte. This turnpike company had been organized for the purpose of maintaining this highway as a turnpike, with a charter for 30 years. It had also acquired from adjoining land-owners the right to a strip of land on each side of the highway for a bridle-path. The consent given to this petitioner covered the use of a portion of the existing bridle-path. In August, 1887, the petitioner filed a map and profile, indicating by a line its proposed route upon the bridle-path portion of the highway. In May 1888, it instituted and carried through proceedings for the condemnation of certain lands required for the construction and operation of its road, against numerous property owners, and eventually built and put in operation an electric railroad. The present proceeding was brought in November, 1889, and by it petitioner seeks to acquire the title to the lands of the respondents, for the purpose of a railway from Rochester to Charlotte and Lake Ontario. The petition alleges incorporation, a survey of a route, an inability to purchase the right of way, and describes by metes and bounds the strip of land required by its railroad, and which is upon the eastern edge of the bridle-path. It also alleges the making and filing of a map and survey, and service of notice upon land-owners. It makes no mention of the railroad it had previously built, nor of the previous proceedings, nor connects this with the previous enterprise. No map was filed as alleged, and no other map was ever filed except the first one, to which no reference is made in the petition. These proceedings were opposed by the land-owners, who, by appropriate denials, put in issue the allegations of the petition. The application was granted by the court at special term upon a referee's report; but, upon appeal to the court at general term, the order below was reversed, and the application for the appointment of commissioners to appraise the value of the lands sought to be taken was denied. 10 N. Y. Supp. 379. From that determination the petitioner has appealed to this court.

David Hays, for appellant.

Quincey Van Voorhis, for respondents.

GRAY, J., ( after stating the facts as above.)

The land-owners have opposed these proceedings of the petitioner to acquire their lands upon various grounds, but it is only necessary to discuss two propositions, which, in limine, seem successfully to assail the right of this corporation to take by condemnation the respondent's property for its corporate uses. The respondents say that the petitioner has not obtained the consent of the local authorities of the town of Greece, and that it has not made and filed a map or survey of the proposed route. To the first of these objections, the petitioner answers that the portion of the highway in question lies neither in a city nor in a village, and that the statute has failed to specify who are the proper ‘local authorities' when the highway is in a town, and has left that question open. It relies upon the consent obtained from the turnpike company as all-sufficient, and as emanating from an authority in actual control of the highway. In this contention, the petitioner, I think, is clearly wrong. Chapter 252 of the Laws of 1884, under which this corporation was organized, was passed to provide for the construction, extension, maintenance, and operation of street surface railroads in cities, towns, and villages. By its third section, it was enacted that any company organized under it, as well as any theretofore organized, ‘may construct, maintain, operate, use, and extend a railroad, or branches, on the surface of the soil, through, upon, and along any of the streets * * * or highways of such cities, towns, and villages, and also through * * * any private property which said company may acquire for the purpose: * * * provided, that the consent in writing of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad * * * be first obtained.’ Then follows a provision that in cities the common council, and in villages the board of trustees, shall be the local authorities to give consents. The argument of the appellant is that, the statute being silent as to who shall be the local authority for the purpose of consenting in towns, such consent may proceed from the authority in actual control; that the turnpike company is such an authority, and exclusively operates and controls the highway, and only its consent was necessary. There are two objections to this argument. In the first place, it disregards the true, or legal, significance of the term ‘local authorities' as used in the act; and, in the next place, it assumes that the highway commissioners' authority has been wholly divested by the organization and operation of the turnpike company. The ‘local authorities,’ to whom the statute refers as the source of the consent to be given, are the officers of the city, town, or village whose duties and powers relate to the supervision, care, and maintenance of the streets or highways; and it would be a misuse of language to attach any other sense to those words. It is very evident, by reference to the connection in which the legislature frequently uses the term ‘local authorities,’ that what is meant is those officers on whom the administration of the government of the particular political subdivision of the state, by virtue of their office, devolves, in relation to the subject-matter of the legislative provision. I think we need not delay to enforce this seemingly self-evident proposition by abundant illustrations from the laws. A turnpike corporation is not a local authority, and its consent is only good for what it may be worth, relatively to its own rights and interests in the matter. The highway has not ceased to be such because of becoming a turnpike, and all authority of the highway commissioners has not been taken away by that change. Walker v. Caywood, 31 N. Y. 51. Whatever the interests, and however exclusive the rights, and comprehensive the duties, of the turnpike corporation over the highway, the administrative duty of the highway commissioners of the town remains unimpaired, in so far as its exercise may be demanded for the preservation and protection of the interests of the public. These companies are private corporations, whose organization is, primarily and principally, for private gain; and shall they be deemed conservatorsof the public interests? That would be an absurd proposition. Supervision and control over the public highways are vested in the local authorities to prevent illegal encroachments upon the public highway by the turnpike company, or from any other direction. Walker v. Caywood, supra. The highways are held in trust by the state for the public, and they are controlled through the instrumentalities of local authorities. Section 1, art. 1, tit. 1, c. 16, pt. 1, Rev. St. N. Y. Though a turnpike corporation acquires a right to the use and control of the highway for its purposes, some duty of supervision and some control still remain in these local authorities. The adjoining land-owners and the public generally are interested in having the highway maintained suitable for the public use, and in preventing their diversion to other uses, or their subjection to other burdens, until there shall exist some controlling reason and a due authorization for the new use. It cannot properly be said that this turnpike company-this private corporation-has so far succeeded to the powers and rights of the town officers as to be able to determine such questions for and to release the interests of the public. The highway commissioners are vested with the general control over the public highways, and they have a duty to perform towards the public in connection with their proper maintenance as such.

The next phase of the question which presents itself then is, if the consent of the highway commissioners, as the local authorities having control voer the highway in question, has not been obtained, is that consent an essential prerequisite to the right to...