Village of Stillwater v. Hudson Valley Ry. Co.

• Decision Date: 06 January 1931
• Citation: 174 N.E. 306,255 N.Y. 144
• Parties: VILLAGE OF STILLWATER v. HUDSON VALLEY RY. CO. et al.
• Court: New York Court of Appeals Court of Appeals

255 N.Y. 144

174 N.E. 306

VILLAGE OF STILLWATER

v.HUDSON VALLEY RY. CO. et al.

Court of Appeals of New York.

Jan. 6, 1931.

Action by the Village of Stillwater against the Hudson Valley Railway Company and another. From a judgment of the Appellate Division (229 App. Div. 41, 241 N. Y. S. 569), reversing on the law and the facts judgment of the Special Term dismissing the complaint and directing judgment for the plaintiff, defendants appeal.

Modified and affirmed.Appeal from Supreme Court, Appellate Division, Third department.

Charles E. Hughes, Jr., William W. Owens, and Francis C. Reed, all of New York City, and James McPhillips and C. E. Fitzgerald, both of Glens Falls, for appellants.

Sidney W. Hewitt and Robert Frazier, both of Mechanicville, for respondent.

John A. Slade, of Saratoga Springs, for City of Saratoga Springs, amicus curiae.

CRANE, J.

The village of Stillwater brought this proceeding to get rid of abandoned streed railroad tracks on its principal thoroughfare, and to make the cost of their removal a preferred lien on the corporate property.

The board of trustees of the village of Stillwater, on December 6, 1882, and on June 15, 1893, by resolution authorized, allowed, and permitted the Stillwater & Mechanicville Street Railway Company ‘to construct, maintain and operate a street railroad through and upon said Main Street’ of said village. The consent, taking the form of a contract, by the acceptance and written approval of the railroad, provided for the nature of the roadbed, the grade of the street, and the gauge of the road, and stated: ‘Said roadbed shall at all times be constructed, operated and maintained in such manner, as not to impair the use of the streets through which it runs.’ The resolution of June 15, 1893, in similar form contained the further provision that the said company shall keep, maintain, and operate its road according to the provisions contained in the laws of the state of New York, and especially those contained in the Railroad Law of 1892.

On May 3, 1899, the board of trustees of the village passed a resolution authorizing the Greenwith & Schuylerville Electric Railroad to construct, maintain, and operate, and use its railroad together with necessary sidings and switches upon and along Main street to connect with the tracks of the Stillwater & Mechanicville Street Railway Company. This resolution was in similar form to the others, and contained the provision that the road shall at all times be kept and operated in compliance with the laws of the state of New York. These resolutions, or consents, were given pursuant to the provision of the State Constitution, article 3, § 18, that no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the local authorities be first obtained. The authorized practice has been for the local authorities to annex certain conditions to the giving of their consents. Matter of Quinby v. Public Service Commission, 223 N. Y. 244, 259,119 N. E. 433, 3 A. L. R. 685, and cases cited. The three resolutions or consents giving to the two railroads the right to construct tracks in Main street were conditioned upon the maintenance and use of them in the operation of a street surface railroad. The tracks were to be used, and street surface cars were to be operated over them. This is the clear intent and meaning of these resolutions, although the words ‘on condition’ were not always used.

Thereafter, the Stillwater & Mechanicville Street Railway Company and the Greenwich & Schuylerville Electric Railroad constructed and operated, as contemplated and intended by the village consent, an electric street railway on Main street, until July 1, 1901, when they were consolidated into the defendant the Hudson Valley Railway Company. Operations were continued until December 1, 1928, when, pursuant to a resolution of its stockholders, the Hudson Valley Railway Company discontinued all its railway operations, which have not since been resumed. It sold all of its feed, trolley, and span wires and poles on Main street, and they have been partly removed by the vendee. Fifteen poles only remain standing. The company has also sold its rails extending out of the village to other townships, exclusive of rails in paved streets, and has either dismantled, burned, or sold all of its cars. The village now asks to have the remaining tracks and rotting ties-unused, unrepaired-removed from its streets. The Appellate Division, upon ample evidence, has found that the Hudson Valley Railway Company in the year 1926 abandoned and ceased to operate its line from the city of Mechanicville to the village of Ballston Spa, and has since at various times abandoned and discontinued the operation of various portions of its railway system.

Previous to the bringing of this action, the village had demanded of the railroad that it fix and repair the street and highway in accordance with the provisions of the Railroad Law (Consol. Laws, c. 49), or wholly remove its rails. The company has failed and refused to repair its roadway or remove its tracks and restore the street to its previous condition.

The Hudson Valley Railway Company having abandoned its railroad, given up the operation of its surface cars by a formal resolution, and having sold and disposed of all its equipment, has deliberately failed and refused for over a year and a half to meet the terms and conditions upon which the consent to the use of Main street was given. The action of the village is sufficient indication that it has now withdrawn that consent; in fact, the abandonment of all its operations and property by the railroad company under the conditions of this case has terminated its rights in the street. In New York Electric Lines Co. v. Empire City Subway Co., 235 U. S. 179, at page 194, 35 S. Ct. 72, 76, 59 L. Ed. 184, Mr. Justice Hughes, writing the opinion, said: ‘It is a tacit condition annexed to grants of franchises that they may be lost by misuser or nonuser. Terrett v. Taylor, 9 Cranch, 43, 51, 3 L. Ed. 650, 653;Chicago Life Insurance Co. v. Needles, 113 U. S. 574, 580, 5 S. Ct. 681, 28 L. Ed. 1084, 1087;Given v. Wright, 117 U. S. 648, 656, 6 S. Ct. 907, 29 L. Ed. 1021, 1024. The condition thus implied is of course a condition subsequent. The same principle is applicable when a municipality under legislative authority gives the permission which brings the franchise into being; there is necessarily implied the condition of user. The conception of the permission as giving rise to a right of property in no way involves the notion that the exercise of the franchise may be held in abeyance for an indefinite time, and that the right may thus be treated as a permanent lien upon the public streets, to be enforced for the advantage of the owner at any time, however distant. Although the franchise is property, ‘it is subject to defeasance or forfeiture by failure to exercise it (People v. Broadway R. R. Co. of Brooklyn, 126 N. Y. 29, 26 N. E. 961), or by subsequent abandonment after it has been exercised (People v. Albany & Vermont R. R. Co., 24 N. Y. 261, 82 Am. Dec. 295).’ If ‘no time is prescribed, the franchise must be exercised within a reasonable time.’ City of New York v. Bryan, 196 N. Y. 158, 164,89 N. E. 467.'

In New York Electric Lines Co. v. Gaynor, 218 N. Y. 417, 113 N. E. 519, 520, this court said regarding permission granted by the city of New York to use its streets: ‘The failure to exercise the permission as contemplated is ground for the revocation or withdrawal of it. It was a tacit condition annexed to the permission as granted that it might be lost by misuser or nonuser.’ See, also, City of Detroit v. Detroit United Railway, 172 Mich. 136, 137 N. W. 645;Id., 229 U. S. 39, 33 S. Ct. 697, 57 L. Ed. 1056;City of Mt. Vernon v. Berman & Reed, 100 Ohio St. 1, 125 N. E. 116.

The secondary franchise, which in these cases is the consent or permission given by local authorities for the use of its streets or highways, is not the franchise by and under which the corporation exists and has the right to function as a corporate being. To destroy or take away this latter franchise it may be necessary to resort to an action by the people of the state through the Attorney General. Matter of Brooklyn Elevated Railroad Co., 125 N. Y. 434, 440,26 N. E. 474. Cases which refer to the corporate franchise as being one grant from the sovereign state have reference to property interests which survive the dissolution of the corporation itself. People v. O'Brien, 111 N. Y. 1, 18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684; City of New York v. Bryan, 196 N. Y. 158, 89 N. E. 467. This is not such a case, as we are dealing here with the consent of a village granted to the Hudson Valley Railway Company to use its streets upon terms and conditions which it now fails and refuses to meet. The consent is at an end, and the tracks of the railroad company in the street are there without authority, and constitute a trespass or a public nuisance. They must be taken up. City of Detroit v. Detroit United Railway, 172 Mich. 136, 137 N. W. 645, Id.,229 U. S....