Nat'l Docks & N. J. J. O. Ry. Co. v. Pa. R. Co.

• Decision Date: 22 October 1895
• Citation: 54 N.J.E. 10,33 A. 219
• Parties: NATIONAL DOCKS & N. J. J. O. RY. CO. v. PENNSYLVANIA R. CO. et al.
• Court: New Jersey Court of Chancery

33 A. 219

54 N.J.E. 10

NATIONAL DOCKS & N. J. J. O. RY. CO.

v. PENNSYLVANIA R. CO. et al.

Court of Chancery of New Jersey.

Oct. 22, 1895.

(Syllabus by the Court.)

Bill by the National Docks & New Jersey Junction Connecting Railway Company against the Pennsylvania Railroad Company and the United New Jersey Railroad Company & Canal Company. On order to show cause why injunction should not issue. Heard on bill, affidavits, and schedules thereto. Injunction granted.

Gilbert Collins, Charles L. Corbin, and Charles D. Thompson, for the motion.

James B. Vredenburgh and R. V. Lindabury, opposed.

McGILL, Ch. The complainant insists that it acquired a right of railroad crossing under car yard of the defendants by means of an arched passageway of masonry, which cannot be constructed without temporarily cutting the railway tracks in the yard; and the object of the present application is to secure an injunction which will require the defendants to, from time to time, as the work of building the passage progresses, remove cars they may store upon their tracks in the line of crossing, and keep them removed, while the construction at each point of removal continues in accordance with a manner of construction declared by the complainant in its condemnation proceedings. The complainant is a railroad corporation organized under the general railway law (Revision, p. 925) and its supplements. As its name indicates, it will serve as a connection between the National Docks and New Jersey Junction Railways, which will be about half a mile in length, entirely within the limits of the city of Jersey City. Commencing at the southerly end of its route, and running northerly, the road starts at a point in the line of the National Docks Railway, and, crossing meadow lands and public streets for some 1,500 feet, reaches the car yard of the defendants, which has its southerly boundary upon the northerly side of a public street of Jersey City, called "Railroad Avenue," and is constructed upon an elevated plateau some 23 feet above the grade of the street. This yard is about 500 feet wide. North of It, the land is again low until the line of the New Jersey Junction Railway is reached. The complainant proposes to cross this car yard by the passageway already indicated, the construction of which will necessitate the temporary opening of the surface of the yard, a portion at a time, for its entire width, and thereby the disturbance at different times, but in all, of 21 railroad tracks of the defendants, located and used over the line of the passageway.

Upon the trial of the appeal from the report of commissioners in the proceedings for the condemnation of the right to cross, the method of crossing the yard was, by an amendment to the petition, defined to be by the arched masonry passageway through a strip of land 55 feet wide, over which passageway, as the same should be completed, the car yard might be maintained and operated. The proposed manner of constructing that passageway was also defined at that trial. It was declared, by a writing filed with the clerk of the court to which the appeal was taken, that the complainant would commence work at the southerly side of the car yard, and progress in building northerly by sections, proceeding, as the language of the declaration states, as follows: "Second. The connecting company will remove from their right of way the three southerly yard tracks of said owners, being tracks one, two, and three, upon the commencement of their work, and thereafter will keep open, during the progress of their work across said yard tracks, three of the yard tracks of the said owners crossing the route of Connecting Company, which tracks shall be adjacent to each other; and the Connecting Company will complete their arch in sections, so that, when yard tracks of the owners in excess of three in number shall be removed from the route in the course of construction, an opportunity shall be afforded concurrently therewith to the owners to relay and restore therewith to use a like number of those previously removed across the complete section of the arch, so that said owners, during the construction of said arch, may at all times have the opportunity to maintain and use all their yard tracks except three. Third. The Connecting Company will support the sides and the north end of each section of their excavation, and, for the further protection of the yard track next north of and adjacent to each section excavated, will, upon beginning excavation in such section, place stringers under such track across the route of the Connecting Company, commencing with yard track four (4), and, when that track is taken up, will shift the stringers to the track crossing the route next north of the second section excavated, and so on across the yard; such stringers to be placed in the manner usual in such construction, and so that trains may be run over the track until such track shall be removed by the Connecting Company as above set forth, which stringers will be placed under each track in such manner as to leave it substantially at the elevation at which it may be found at the time the stringers are put in place. Fourth. The Connecting Company will locate the northerly line of the most northerly section but one of their excavation at least sixteen feet southwesterly from the nearest point of the southwesterly rail of the west-bound engine track, so that the east-bound engine track may be operated over said space left between the excavation and the west-bound engine track; the center line of the east-bound engine track to be located not more than fourteen feet distant from the center line of the west-bound engine track across the route of the Connecting Company during the progress of the excavation in said section; and the Connecting Company will not remove said east-bound engine track over said location until the arch shall be constructed so far northerly that the east-bound engine track can be shifted and used by the owners across the completed part of the arch, if they desire so to do."

During the trial in the circuit court, the defendants insisted that the proposed manner of constructing the crossing by cutting their tracks would unnecessarily and unreasonably interfere with the use of their car yard while the work progressed, and they suggested a manner of construction which would involve the support of the tracks...