In re Incorporated Village of Hobart

H. T. Kellogg, Acting P. J.: The board of trustees of the village of Hobart, N. Y., adopted a resolution to extend a street in the village, known as Railroad avenue, across the tracks and right of way of the Ulster and Delaware Railroad Company. The municipality thereafter applied to the Public Service Commission for an order determining whether the proposed extension should be made at grade, below grade or above grade. Thereafter the Public Service Commission made an order directing that the extension be made at grade. The Ulster and Delaware Railroad Company has appealed from the order thus made by the Public Service Commission. The appellant contends that the proposed extension of Railroad avenue is unnecessary. It is a sufficient answer thereto that the board of trustees of the village of Hobart, having determined that the proposed extension was necessary, its determination, not having been appealed from, was conclusive. (Village Law, § 146, as amd. by Laws of 1916, chap. 10; Railroad Law, § 90, as amd. by Laws of 1921, chap. 698.) The appellant also contends that the board of trustees made its determination without having given to the appellant due notice of a hearing at which the necessity of the extension would be considered. It is provided in section 90 of the Railroad Law as follows: “ Notice of intention to lay out such street, avenue, highway or road, or such new portion or additional width of a street, avenue, highway or road, across a steam surface railroad shall be given to such railroad corporation by the municipal corporation at least fifteen days prior to the making of the order.” It is further provided therein that such notice shall designate the time when and place where a hearing will be given to such railroad company and that such railroad company shall have the right to be heard upon the question of the location of the highway. The village of Hobart did give to the appellant fifteen days’ notice of a hearing upon the matter of the proposed extension and the appellant attended at such hearing and made opposition. It now complains of a statement in this notice to the effect that at the hearing in question “ a resolution mil be adopted altering Railroad avenue, in said village, [597] by extending it across the railroad lands of the Ulster and Delaware Railroad Company.” The distinction between a “ notice of intention to lay out ” a street which the statute calls for, and a notice that at a certain hearing “ a resolution will be adopted ” laying-out such street, is not apparent. We consider that the notice given was sufficient and that the proceedings were properly instituted. The only question reviewable upon this appeal, therefore, is the question whether or not the Public Service Commission, in determining that the extension should be made at grade, rather than below grade or above grade, properly exercised that discretion in the matter which had been committed to it. (Railroad Law, §§ 90, 91, as amd. by Laws of 1921, chap. 698.) The railroad right of way at the point in question extends approximately east and west. Paralleling the right of way and immediately to the south thereof is a street known as Creamery street. Paralleling the right of way on the north and about 370 feet therefrom is a street called Main street. From Main street there comes down to the right of way and approximately at right angles thereto, a street known as Railroad avenue. The lines of this street, if the same were carried across the right of way and across Creamery street, would connect up with the westerly and easterly Unes of Cornell avenue which comes up from the south to intersect Creamery street at a right angle. The proposed extension of Railroad avenue will cover a distance of about 200 feet and will be made wholly upon the railroad right of way. It will make a connection between Main street and Creamery street. The passenger station and freight station of the Ulster and Delaware Railroad Company are located slightly to the east of the proposed extension, the former to the north and the latter to the south of the railway tracks. About 200 feet to the east of the proposed extension and to the south of the railway tracks is a creamery station operated by the Sheffield Farms Company. Fifty men are employed at this creamery and forty-six patrons deliver milk there. The need of the street extension in question, if any, lies in the fact that a large number of the creamery patrons will come down Main street from the east and turning into Railroad avenue will cross to Creamery street and by means of the latter street obtain access to the creamery. Proof was given before the Public Service Commission that a crossing of the railroad right of way underneath its tracks would be impracticable. This appeared from the fact that any street excavation made would be flooded by the waters of a neighboring stream. Proof was given that an overhead crossing was equally impracticable. It was shown that any overhead structure suitable for travelers must extend on the north to Main street and on the [598] south across Creamery street and 250 feet down Cornell avenue. Such a structure would almost wholly occupy Eailroad avenue. It would cut off access to the railway stations and the creamery from the business houses and residences upon Eailroad avenue. Moreover, it would make Creamery street and, therefore, the creamery of the Sheffield Farms 'Company, inaccessible to the patrons of that creamery. Thus the very purposes, to serve which the street extension has been directed, would be defeated. Moreover, there was proof that the cost of such a structure would be prohibitive. The village of Hobart contains about 600 people and the appraised value of all the property therein situate does-not exceed $285,000. Yet the proposed structure will cost not less than $200,000, one-half of which will have to be borne by that municipality. (Eailroad Law, § 94, as amd. by Laws of 1921, chap. 698.) It would, therefore, seem that the Public Service Commission was well within the exercise of a just discretion in determining that the crossing in question should be made at grade. The order should be affirmed, with costs. Kiley and Hinman, JJ., concur; Van Kirk, J., dissents with an opinion, in which Hasbrouck, J., concurs.