Transit Comm'n v. Long Island R. Co.

• Decision Date: 06 May 1930
• Parties: TRANSIT COMMISSION v. LONG ISLAND R. CO., et al.
• Court: New York Court of Appeals Court of Appeals

253 N.Y. 345

171 N.E. 565

TRANSIT COMMISSION

v.LONG ISLAND R. CO., et al.

Court of Appeals of New York.

May 6, 1930.

Mandamus proceeding by the Transit Commission, being the Metropolitan Division of the Department of Public Service, against the Long Island Railroad Company and the New York & Queens Gas Company. Petitioner's motion for mandamus was granted by the Special Term, but this order was reversed as a matter of law by the Appellate Division and the motion denied (228 App. Div. 290, 239 N. Y. S. 543), and petitioner and the railroad company appeal.

Order of the Appellate Division reversed, and that of the Special Term affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

George H. Stover and Frank C. Bowers, both of New York City, and Phillip Hodes, for appellant Transit Commission.

Joseph F. Keany, of New York City, for appellant Long Island R. Co.

Chauncey B. Garver and P. F. W. Ruther, both of New York City, for respondent.

Arthur J. W. Hilly, Corporation Counsel, of New York City (Vincent Victory, of New York City, of counsel), for City of New York, amicus curiae.

CRANE, J.

The public policy of the state of New York, as expressed in the Constitution and in statutes, is to abolish the grade crossings of steam railroads. The enormous increase in the amount of traffic upon the highways, due to the advent of the automobile, calls for some action in behalf of the public Welfare to reduce the peril and the danger occasioned by the meeting of the tracks and the street. While realizing the necessity for a change, the people of this state also recognize that it would be impossible and impracticable for the railroads to reconstruct these crossings so as to run over or underneath the highways at their own expense. The people have evidenced a willingness to share the burden, by adopting in 1925, amended in 1927, an amendment to the state Constitution, which became and now is article 7, § 14, of that instrument. This permits the Legislature to authorize by law the creation of a state debt, not exceeding in the aggregate $300,000,000, to provide moneys for the elimination, under state supervision, of railroad crossings at grade within the state at the expense of the state and railroad companies, counties, and cities. Matter of Grade Crossings in City of Buffalo, 251 N. Y. 331, 167 N. E. 460. Following this constitutional amendment, the Legislature passed chapter 510 of the Laws of 1926, superseded by chapter 677 of the Laws of 1928, amended by chapters 431 and 681 of the Laws of 1929, to be known as ‘New York City Grade Crossing Elimination Act.’ This provides that all existing highway railway crossings at grade in the city of New York shall be eliminated in the manner therein stated, the cost to be borne 40 per cent. by the state, 10 per cent. by the city, and 50 per cent. by the railroad corporation. All the crossings are not to be eliminated at once, but the work is to proceed gradually by the selection of certain crossings, which may be changed during the calendar year, on application of the board of estimate of the city. Notice of the proposed action of the Transit Commission in ordering these changes is to be given under the terms of the act to the railroads affected and also to any person or persons deemed by the commission to be interested in the proceeding. The Transit Commission shall direct how the elimination shall be made, and shall approve of the contracts for, as well as supervise the construction of, the work. If necessary, the state is authorized to advance the money to carry out the reconstruction, which is to be repaid in the manner designated. The payments to be made by the city are to be charged up to the taxpayers.

The act is quite full and complete in detailing the steps which are to be taken to bring about this change in transit conditions in the city of New York. These brief references, however, to some of its provisions indicate that the work of eliminating grade crossing under this act is a public work authorized by specific provisions of the Constitution, to be paid for in a large measure out of public funds. The people of this state, in order to preserveand enhance the safety of the traveling public, and to guard the life, limb, and welfare of its citizens, have not only ordered and directed the railroads to eliminate grade crossings, but also, through the Constitution and the laws, agreed to share the expense. The whole matter is a public undertaking in behalf of the welfare of the people of this state, and, in this instance, the people of the city of New York, in which the railroads are to pay a part of the cost.

On August 3, 1927, the Transit Commission, acting in accordance with the New York City Grade Crossing Elimination Act, above mentioned, made its final order directing the Long Island Railroad Company to eliminate two grade crossings at Cross Island boulevard, Auburndale, and Bell avenue, Bayside, New York City. The New York & Queens Gas Company has a franchise to run its gas main through Bell avenue at this point, and owns and maintains an eight-inch pipe in the bed of Bell avenue, Bayside, underneath and below the crossing at grade of the tracks of the Long Island Railroad Company. The plans prepared by the engineers to carry out the order of the Transit Commission propose to depress the tracks of the railroad at Bell avenue crossing about twenty feet below the present grade. This of course requires the removal and relocation of the gas main. The gas company received notice of the hearing before the Transit Commission upon the aplication of the board of estimate and apportionment of the city of New York for the elimination of this grade crossing, and appeared on the hearings by its vice president and its attorney and counsel. In other words, pursuant to the provisions of the Elimination Act, the gas company was deemed by the commission to be a party interested in the proceeding and was thereupon given notice of the application and a full opportunity to be heard by its representatives and counsel. The final order of the commission followed.

The gas company, realizing that it alone could remove or disconnect its gas main with safety, refused to obey the order of the Transit Commission, or to relocate its pipes, and refused to permit the contractor for the Long Island Railroad Company to interfere with its main, unless and until the cost of making the changes was either paid or guaranteed to it. The action in the field has brought into the court the question whether the cost of removing this gas main must be borne by the New York & Queens Gas Company, or whether it is part of the elimination cost to be borne by the taxpayers and the railroad company.

The gas company has received from the public authorities its franchise or privilege to lay and maintain its gas main under the suface of the public street. Without this grant from the people it has no rights in the highway. This privilege, or franchise, is at all times subject to the police power of the state; in other words, the company maintains its pipes subject to the obligation to remove them whenever the public health or safety require this to be done. Although authorized to lay its pipes in the public streets, and company takes the risk of their location and is bound to make such changes as the public convenience and security require, at its own cost and charge. Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U. S. 226, 17 S. Ct. 581, 41 L. Ed. 979;New Orleans Gas Light Co. v. Drainage Commission of New Orleans, 197 U. S. 453, 25 S. Ct. 471, 49 L. Ed. 831;Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 26 S. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175;Lake Shore & Michigan Southern R. Co. v. Clough, 242 U. S. 375, 37 S. Ct. 144, 61 L. Ed. 374;Chicago, Milwaukee & St. Paul Ry. Co. v. City of Minneapolis, 232 U. S. 430, 34 S. Ct. 400, 58 L. Ed. 671;National Waterworks Co. v. City of Kansas (C. C.) 28 F. 921;In re Deering, 93 N. Y. 361;Chace Trucking Co. v. Richmond Light & R. R. Co., 225 N. Y. 435, 122 N. E. 210. All these cases are to the point that these public service corporations maintain their rights in the streets, subject to reasonable regulation and control, and are bound to relocate their structures at their own expense whenever the public health, safety, or convenience requires the change to be made. This common-law rule, however, does not go so far as to place the...