People Ex Rel. Town of Colesville v. Delaware & Hudson Co.

Cullen, J. For more than twenty years prior to the year 1900 the respondent railroad company had operated a steam railroad through the town of Colesville, in Broome county, intersecting a certain highway in that town. As originally built, the railroad crossed the highway on grade, but the highway was raised some feet to bring it to the level of the rail *340 road. In September, 1900, the respondent, for the purpose of improving its roadbed and for the better operation of its railroad, raised the grade of the railroad at the intersection of the highway, six and a half feet. Thereupon the relator brought an action in the Supreme Court to restrain the respondent from raising such grade unless it should construct an undercrossing for the highway. A temporary injunction was granted in the action. Then the respondent, under section 62 of the Railroad Law, applied to the board of railroad commissioners to change the highway crossing in question from a grade crossing to an undergrade crossing. Under the provisions of this section the cost of any change would be apportioned between the railroad company and the public, one-half of the expense falling on the railroad company, one-quarter on the state and one-quarter on the town. The relator resisted the application, contending that a change of the crossing under this section could be directed by the railroad commissioners and a share of the cost thereof imposed on the town only when public safety required the alteration, not when the alteration was made by the company for the improvement of its railroad. In this claim the commissioners seem to have acquiesced, for they denied the application. During the pendency of this proceeding the respondent, the defendant in the equity action (which still remains untried), was partially relieved from the effect of the injunction by a stipulation between the parties that any crossing which -might be put in by the defendant, except an undergrade crossing, should be deemed temporary and should not affect the rights of either party. The intention of this stipulation was to permit the railroad company to construct, without violating the injunction, a crossing other than undergrade, provided that such crossing should be deemed only a temporary expedient. Acting on this, the respondent raised the highway to the new grade of the railroad. Subsequently the relator applied for a writ of mandamus to compel the respondent to restore the highway to its former state or such state as not to have unnecessarily impaired its usefulness, by the construction of an *341 undergrade crossing. An alternative writ was issued to which the respondent made return. IJpon a trial of the issues the court found that the respondent had unnecessarily impaired the usefulness of the highway by raising the grade of the railroad, but it also found that it was not convinced that the highway could be restored to a reasonable state of usefulness only by the construction of an undercrossing. It ordered that a mandamus issue requiring the respondent “ to restore the highway at the crossing to its former state or such state as not to have unnecessarily impaired its usefulness.” The relator appealed from this final order because it did not require. respondent to make an undergrade crossing. The order was affirmed by the Appellate Division and from the judgment of that court this appeal is taken. While the disposition of this appeal is necessarily controlled by a finding of fact made by the trial court, the claims of the respective parties as to the scope and effect of chapter 754 of the Laws of 1897, amending the Railroad Law and commonly known as the Grade Grossing Act, are in such conflict and the learned courts below seem to have so misconstrued the opinion of this court in People ex rel. City of Niagara Falls v. N. Y. C. & H. R. R. R. Co. (158 N. Y. 410) that we feel required to state our judgment on those matters. The great extent of the railroads in this state was constructed long prior to the enactment of any general law on the subject of grade crossings. Except where special charters were granted, railroads were built under the provisions of the General Act of 1850, substantially reproduced in the present Railroad Law. That statute authorized a railroad company formed under it to construct its road across, along or upon any highway — upon city streets with consent of the municipality and upon other highways (after the amendment of the year 1864), upon obtaining an order to that effect from the Supreme Court of the district in which the highway was situated. But the company was required to restore the highway “ to its former state or to such state as not to have unnecessarily impaired its usefulness.” (Railroad Law, sec. 4, wbdiv. 4, and. sec. 11.) The Grade Crossing Act provides for *342 three separate cases in which action is to be had by the board of railroad commissioners: First, section 60 deals with the case of a new steam railroad crossing existing highways. The manner of such crossing must be determined by that board. Second, section 61 deals with the case of a new street or highway being laid out across an existing steam railroad. Then also the manner of crossing must be determined by the railroad commissioners. Prior to the statute under discussion, by the provisions of chapter 62 of the Laws of 1853, a railroad company was required to carry across its road and at its own expense any new street or highway that a municipality might lay out. (Albany Northern R. R. Co. v. Brownell, 24 N. Y. 345.) It is the statute of 1853 that this court held, through Parker, Ch. J., in People ex rel. City of Niagara Falls v. N. Y. C. & H. R. R. R. Co. (supra), to have been repealed by section 61 of the Grade Crossing Act, but there is no warrant in the opinion there rendered for the proposition that the section affects any but new highways. Thi/rd, section 62 deals with the case of existing grade crossings and is the only section relating to that subject. But it deals with such crossings only to a limited extent. It provides that the municipal authorities or the railroad company may petition' the board of railroad commissioners for the closing or discontinuance of a grade crossing, “ alleging that public safety requires an alteration in the manner of such crossing,” in which event the expense of the change is to be apportioned. On no other ground is the'board given jurisdiction to order a change in the crossing. By section 13 of the Bailroad Law a railroad corporation may change the grade of any part of its road as it may deem necessary to avoid accidents and to facilitate the use of the road. If the exercise of this power affects a highway crossing the case does not fall within section 62 of the Grade Crossing Law, but the obligation resting on the corporation is that prescribed by the old law, i. e., to restore the highway as far as practicable and of such restoration the corporation must bear the expense. This duty can be enforced by mandamus and the town is a proper *343 relator. (People ex rel. Green v. Dutchess & Columbia R. R. Co., 58 N. Y. 152.) It is true that as the statute directs the highway to be carried over or under the track “as may be found most expedient,” the election is with the company. (People v. N. Y. C. & H. R. R. R. Co., 74 N. Y. 302.) But the exercise of such election is qualified by the obligation to restore the highway to its former state or to such a state as not to have unnecessarily impaired its usefulness. Chief Judge Church in the last case cited said that if a case were presented where it was impracticable to restore a highway to any reasonable state of usefulness by a particular mode of crossing, that mode would not perhaps be permitted. Though undoubtedly a large measure of discretion rests with the railroad company, still if it be made to appear that the restoration of the highway in one manner seriously affects its use, though it still remains practicable to use ifc, while byr restoration in another manner the use would be wholly unimpaired, we do not see how the company in adopting the first method can be said to have restored the highway to such a state as not to have unnecessarily impaired its use. In the present case the learned trial judge has found that he “was not convinced that the highway could be restored to a reasonable state of usefulness only by the construction of another crossing.” We regard the term “ reasonable state ” as equivalent to “ a state as not to have unnecessarily impaired its x usefulness.” Though the affirmance by the Appellate Division was not unanimous, the finding is conclusive on this court unless it is entirely devoid of support in the evidence. While the evidence would have amply justified a finding that the restoration of the highway could only be properly effected by an undercrossing, there was testimony given by an expert that a safe and proper crossing could be made o'n grade. The finding of fact is, therefore, controlling and the order appealed from must he affirmed, with costs. Parker, Oh. J., Bartlett, Martin, Vann and Werner, JJ., concur; Gray, J., absent. Order affirmed.