Long Island R.R. Co. v. . Sherwood

Haight, J. The Long Island Eailroad Company has instituted the proceedings in question for the purpose of condemning the real estate of the respondents and acquiring title thereto for the purpose of enabling it to construct a railroad crossing over Van Wyck avenue in the city of New York. The company is a corporation existing under the general railroad laws of this state and has heretofore constructed and operated a railroad through Long Island. Just before its road crosses Van Wyck avenue it separates into two branches; one proceeding on through the new tunnel of the Pennsylvania railroad at Thirty-fourth street and the other forking off to the south into the borough of Brooklyn. The two branches upon the western side of Van Wyck avenue are ninety feet and nine and one-half inches apart. The land, the title of which the corporation seeks to acquire, is located between the two branches on the western side of the avenue. The plans of the railroad company adopted by its board of directors call for the construction of a viaduct over Van Wyck avenue two stories in height upon steel pillars in the center of the avenue and upon the curbs and sidewalks thereof and the moving of the company’s railroad tracks upon such bridge or structure. The bridge is designed to carry thirteen tracks over Van Wyck avenue, so arranged by a double deck that the *4 tracks thereon will not cross each other at the same grade. Van Wyck avenue was crossed at grade by seven tracks, two'-’of them being Atlantic division tracks, two Montauk division tracks, two main line tracks and one, the most southerly of all, which is used for carrying empty trains to and from Elatbush avenue station. The avenue is a very heavily traveled highway and is protected at its intersection with the company’s railroad by four crossing gates and the plans, when completed, will eliminate the grade crossing and enable the company to nearly double its number of tracks across the highway. The plans, as we have seen, involve the raising of the railroad tracks as they approach the avenue on either side in order to pass over the street. Inasmuch as some of the tracks cross over the bridge at the second story, the embankment for some of the tracks necessarily will have to be of the same height as that story. On the east of Van Wyck avenue a new transfer station has been adopted by the corporation and it, with the necessary yards, is now approaching completion. The design on the part of the company is to operate its trains from that station into the city and under the East river by electricity instead of steam. The bulk of the traffic takes place in the hours when the people are going to business and when they are returning to their homes, and during those horns trains run across Van Wyck avenue on less than five minutes headway, and some of the trains travel at a speed of sixty miles an hour. The crossing of Van Wyck avenue at grade is, therefore, very dangerous, and the company has already constructed a portion of the bridge and put the same in operation, which carries the two westbound main line tracks over the avenue. The trial court, however, has held as a conclusion of law that the removal of the main tracks up on to the bridge proposed to be constructed operates as a change of route, and it has found as a fact that the statutory proceedings necessary to effect a change of route have not *5 been taken, and, consequently, it has found as a fact that it was not actually necessary that the company should be permitted to acquire the lands of the respondents. These findings and conclusions are duly excepted to by the railroad company, and they present the question that is to be determined upon this review. The findings that the taking of the lands was not actually necessary for the purposes of the company apparently are based upon the determination that there was a change of route, and it may be conceded that the question of necessity could not be determined until the route is located. The fundamental question, therefore, is as to whether there is such a change of route contemplated as to require proceedings to be taken under the statute to locate the new route. Upon this question the trial court has found as facts that the railroad will traverse the same section and serve the same localities after its Jamaica improvement plans are carried out as before, and that the plans do not contemplate the removal of the company’s railroad or of any part thereof into any other section of the borough of Queens, nor do they contemplate furnishing any different locality with railroad service. It is, therefore, apparent that the only "change contemplated is the placing of the tracks now crossing the avenue at grade upon the bridge to be constructed and the embankments approaching the same with the new main tracks made necessary by the opening of the new tunnel under the East river, and that the change is made necessary in the elimination of the grade crossing. In other words, the raising of the railroad tracks so as to cross over the avenue is the purpose of the improvement, and the changing of the location of the tracks is incidental to the construction of such improvement. I am not disposed to question the cases upon which the respondents rely as being a correct construction of the statute at the time the decisions were made. They were fully considered in the case of Erie R. R. Co. v. Steward, *6 commonly known as the Goshen Case (170 N. Y. 172). Under the statute as it then existed a railroad company, having located its route and acquired its right of way, was hound thereby, and it could not go outside and acquire other real estate, except in the cases provided for by the statute; and inasmuch as it sought to acquire lands for a cutoff for the purpose of running its freight trains through the sparsely-settled district of the village, saving about three miles in length, it was held that there was no statutory authority therefor, and, consequently, the lands could not be taken by proceedings in condemnation. But after this decision the legislature, by chapter 727 of the Laws of 1905, section 2, saw fit to amend section 7 of the Railroad Law (L. 1890, ch, 565, as amd. L. 1892, ch. 676) so as to read as follows: “All real property, required by any railroad corporation for the purpose of its incorporation or for any purpose stated in the railroad law, shall be deemed to be required for a public use, and may be acquired by such corporation. If the corporation is unable to agree for the purchase of any such real property, or of any right, interest or easement therein, required for any such purpose, or if the owner thereof shall be incapable of selling the same, or if after diligent search and inquiry the name and residence of any such owner cannot be ascertained, it shall have the right to acquire title thereto by condemnation. Every railroad corporation shall have the power from time to time to make and use upon or in connection with any railroad either owned or operated by it, such additions, betterments and facilities as may be necessary or convenient for the better management, maintenance or operation of any such railroad, and shall have the right by pu,rchase or by condemnation, to acquire any real property required therefor, and it shall also have the right of condemnation in the folloiving additional cases: “ 1. Where title to real property has been acquired, or *7 attempted to be acquired, and has been found to be invalid or defective. “ 2. Where its railroad shall be lawfully in possession of a lessee, mortgagee, trustee or receiver, and additional real property shall be required for the purpose of running or operating such railroad. “3. Where it shall require for any railroad owned or operated by it any further rights to lands or the use of lands for additional main tracks or for branches, sidings, switches, or tum-outs or for connections or for cut-offs or for shortening or straightening or improving the line or grade of its road or any part thereof. Also where it shall require any further rights to lands or the use of lands for filling any structures of its road, or for constructing, widening or completing any of its embankments or road-beds, by means of which greater safety or permanency may be secured, and such lands shall be contiguous to such railroad and reasonably accessible.” I have italicized the new provisions so that the change made in the statute from that which previously existed may readily be seen; and it thus appears that, prior to the amendment, the statute made provisions for the acquiring of lands for a railroad right of way by a new road that was being constructed, and that it was given the right to go outside of its right of way for the purpose of obtaining lands for switches or turnouts, and for the purpose of constructing its embankments and roadbeds, but at that time no statutory right existed for the purpose of acquiring lands for betterments, for additional main tracks, branches, sidings or for connections, cutoffs, shortening or straightening or improving the line or grade of the road or of any part thereof. But all of these provisions are now embraced in the new statute, which also gives to every existing railroad corporation the power from time to time to make and use upon or in connection with any railroad either owned or operated by it such additions, betterments and facilities as will be *8 necessary or convenient for the better management, maintenance or operation of any such railroad, and shall have the right of purchase or condemnation to acquire any real property required therefor, and it shall also have the right of condemnation for additional main tracks, or branches, sidings, switches, or turnouts, or for connections or for cutoffs, or for shortening or straightening or improving the line or grade of its road or any part thereof; and also where it shall require any further rights to- lands or the use thereof for filling any structures of its road or for constructing or widening or completing any of its embankments. This statute was carried into the Consolidated Laws unchanged and is now incorporated in the new revision of the Bailroad Law of 1910 (Oh. 481) as section 17 (Oons. Laws, ch. 49) with some changes, but none of which are material to the question now under consideration. Under the former statute a railroad corporation after locating its route -in the manner provided by the statute, was given the right to acquire a right of way six rods wide, either by purchase or by condemnation. This was deemed ample for the purposes of the corporation, except in cases of switches or turnouts or where lands were required for the constructing of embankments, etc., and it was accordingly held that where a railroad company had located its route and acquired its right of way it was bound thereby, and that it could not go outside of its right of way and acquire other lands except in cases specifically authorized by the statute. But owing to the marvelous growth of many of our cities and the great increase in travel and in the transportation of freight it became necessary that railroads, in order to safely and properly comply with the increased public demands, should have additional facilities, tracks, etc., in order to properly discharge their duties to the public. The legislature, recognizing the necessity for further facilities, by the act of 1905 gave to existing railroad corporations further powers with reference to the acquiring of lands *9 for additions, betterments and facilities, such as may be necessary and for additional main tracks or branches, sidings or connections, or for cutoffs or for shortening or straightening or improving the line or grade of its road or any part thereof. This statute has rendered obsolete some of the former decisions of this court, which were based upon the absence of legislative power, which has now been supplied by expressly giving the right to acquire additional lands, either by purchase or condemnation, for main tracks, branches, etc., outside of that previously acquired for its right of way. This statute is not designed to change any route or right of way. Its purpose is to empower the acquiring of additional lands to be used, in connection with that which it has already acquired, for the purpose of additional betterments and facilities necessary in the management, maintenance and operation of the railroad. Originally a single-track road was ample to supply the public demands; then in some localities it became necessary to have a double-track road; then four tracks, and now the time has arrived in some localities in which many more tracks are required, and it may be in the near future in some localities that it will be necessary to have separate tracks for different classes of trains. It may become necessary to have tracks for local trains stopping at each station each way, and other tracks for other trains of high speed. In some cases it may be necessary owing to the number of trains to have still other tracks in order to supply the demand for transportation. In the case under consideration we are advised by the findings that during some portions of the day trains are dispatched over the road every five minutes running at a speed of sixty miles an hour. In case of an accident to a train, there is scarcely time to warn an approaching train and prevent its plunging into that which has met with the accident. The remedy for this is more tracks, which will enable trains to be dispatched on other tracks and giving more time between trains. *10 The lands which the Long Island Railroad Company seek to acquire are lands abutting upon its present right of way. It is in fact between the right of way of its two branches at the point in question. It does not seek any change of route. It wishes to maintain its present route and right of way, some of which must be occupied by its embankments in order to afford approaches to its overhead crossing of Van Wyck avenue. What it does seek are lands for its additional main tracks, for its construction of its overhead crossing of the avenue, and for the change of its grade, rendered necessary by such crossing. The elimination of grade crossings of highways has now become the policy of the state, as is apparent from other portions of the statute passed in recent years. And under the amended provisions of the statute of 1905, referred to, it appears to me that express legislative authority is now given to the railroad corporation to carry out its contemplated .improvement at the crossing of Van Wyck avenue, and to acquire by condemnation the lands necessary therefor without changing its present route or routes. Attention has been called to the case of People ex rel. Bacon v. Northern C. Ry. Co. (164 N. Y. 289). " In that case the railroad company had maintained a bridge over a highway for many years and had constructed a new bridge thirty-five feet distant from the old bridge upon two stone abutments which projected into the traveled portion of the highway eight feet or more on either side thereof. This encroachment was held to be a public nuisance and the trial court directed the- jury to find a verdict that the defendant had unnecessarily, by the construction of the abutments, impaired the usefulness of the highway and that a peremptory writ of mandamus issue commanding the defendant to restore the highway to such condition as would not impair its usefulness, etc. No question arose with reference to change of route nor was any adjudication made thereon, and it does not *11 appear to me that this decision has any bearing upon the question under consideration. In proceedings for the condemnation of lands the owner always has the right to interpose an answer raising an issue as to whether it is necessary that the lands should be taken for a public use. Such an issue was raised in this case. In the case of N. Y. C. & H. R. R. R. Co. v. Untermyer (133 App. Div. 146, 150) Woodward, J., in delivering the unanimous opinion of the court, says: “An additional track to care for the local business of the Grand Central Station, running out thirty-five miles, is not an abuse of the power conferred; it is such a branch as the statute fairly authorizes. * * * It is in harmony with the provisions of chapter 127 of the Laws of 1905, * * * which specially provides for taking lands under the conditions here under consideration.” This case was "affirmed without opinion. (196 N. Y. 531.) I am, therefore, of the opinion that the court erred in refusing to find, at the request of the company, as a conclusion of law, that “the plaintiff’s plans do not contemplate such a change of route as is referred to in old section 13 (new section 24) of the Railroad Law,” and that the findings of fact made by the court upon the question of necessity are apparently based upon its erroneous understanding as to what constitutes a change of route. The judgment of the Appellate Division and that of the Special Term should be reversed, with costs to abide the event, and a new trial ordered, in which the issue of necessity should be determined.