In re the Keeseville, Ausable Chasm & Lake Champlain Railroad

Majority

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In the Matter of the Application of the Keeseville, Ausable Chasm and Lake Champlain Railroad Company, Appellant, for an Order Permitting It to Construct Its Road on Certain Streets in the Village of Keeseville, New York, Respondent.

Third Department,

November 14, 1906.

Headnote

Railroad — extension of lines on village street denied.

When an incorporated steam railroad company seeking permission to extend its ■ lines along the streets of a village under section 11 of the Railroad Law -shows nothing in favor of its application,, which is strenuously opposed by the village authorities, the application should not be granted.

Especially is this so when there appears to be an attempt to do business as a street surface railway without obtaining the consent of the property owners and,local authorities as required by section 91 of the Railroad Law.

Appeal by the petitioner, the Keeseville, Ausable Chasm and Lake Champlain Eailroad Company, from áh order of the Supreme

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Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Essex on the 11th day of January, 1906, denying the petitioner’s application for permission to construct' its road on certain streets in the village of Keeseville.

Thomas O'Connor, for the appellant.

Oliver A. Wolcott, for the respondent.

The appellant has been incorporated as a steam railroad company. It operates such a railroad from Port Kent to Keeseville, a distance of about six miles, connecting the village of Keeseville with the main line of the Delaware and Hudson Railroad Company. Its Keeseville station is located near the village limits. Desiring to extend its road -within the village of Keeseville the appellant made application for an order permitting it to construct such road upon and along certain streets in said village. Such application was made necessary by section 11 of the Railroad Law (Laws of 1890, chap. 565), which prohibits the construction of a railroad on a village street without an order of .the court on notice to the board of trustees of the village. The order appealed from denied said application.

Ho reason is suggested to the court why this proposed extension should be made. It does not appear that there is any need of a railroad on the streets of Keeseville, or that the interests of the appellant or of the public will to the slightest extent be subserved or promoted thereby. The moving papers are absolutely barren of any suggestion in favor of the application. On the other hand the application is strenuously opposed by the village ‘ authorities, who show that the proposed railroad is to be built on some of the busiest and most thickly populated streets of the village, thereby proving a serious menace and obstacle to travel, traffic and industry, and causing substantial depreciation in real estate values along the line of the proposed road. Hothing is shown in favor of the application. Every reason is against it. A railroad corporation cannot arbitrarily extend its road over the streets and highways of a village, else there would be no purpose in said section 11 of the Railroad Law, which requires such corporation to procure an order

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of -'the court permitting such construction after notice to the officers of the village in question. And when, as in this case, the applicant fails to show the slightest reason for the proposed construction, and the municipality furnishes very cogent reasons in opposition, stich application is properly denied.

• It is suggested by the" respondent that the disguised purpose of the application is to enable the appellant to do the business of a street surface railroad within the village of Iieeseville. The fact that the proposed extension consists of two diverging branches through the village, coupled with the fact that the appellant has changed its motive power from steam to electricity, lends color to this suggestion, which, if well founded, furnishes an additional reason why the application should be denied, inasmuch as the appellant does not appear to have been organized for the purpose of doing that kind of business, nor has it procured the consents of the property owners and local authorities which are required for such purpose by section '91 of the Railroad Law.

The order should be affirmed, with costs.

Order unanimously affirmed, with costs.