Long Island Railroad v. City of New York

This case comes to this court on appeal from an order of the Appellate Division in the second department, affirming a final judgment entered at Special Term which sustained a demurrer to the complaint. The allegations of the complaint, which are extremely voluminous, have been epitomized in the foregoing statement of facts. The plaintiffs are two railroad corporations; the Nassau Electric Railroad Com¡rany, which is the owner and lessor, and the Long Island Railroad Company which is the operator and lessee of the railroad which runs through Atlantic avenue in the borough of Brooklyn. The defendants are the city of New York and several of its officers. For the purposes of this dis

The allegations of the complaint and the claims of the plaintiffs, reduced to their substance, are that the plaintiffs have such a title in and to the thirty-foot strip which constitutes their right of way along the center of Atlantic avenue from Flatbush avenue on the west to Atkins avenue on the east, as to give them the right to lay and maintain railroad tracks thereon for the operation of a surface railroad in connection with and as a part of their railroad which is now operated within said thirty-foot strip, partly in depressed tunnels and partly upon elevated structures with such intervening inclines as are necessary to the combination; that in pursuance of such right, and in accordance with the reports, plans and specifications of the Atlantic avenue improvement commission, authorized and approved by legislative authority, the plaintiffs have laid tracks upon the surface of said thirty-foot strip over the depressed tunnels and under the elevated structures at great expense; that the defendant threatens and intends to remove said surface tracks because, as claimed by it, they are unauthorized and constitute an unlawful obstruction in the highway, and the relief prayed for in the complaint is that- an injunction issue restraining the defendant from entering upon the said thirty-foot strip for the purpose of interfering with its possession by the plaintiffs and removing therefrom any of said surface tracks, curbing or other structures laid or erected thereon by the plaintiffs, and that the title or right of the plaintiffs in and to said thirty-foot strip may be adjudged. The demurrer of the defendant is based upon the ground “ that the complaint does not state facts sufficient to constitute a cause of action.”

At Special Term the demurrer was sustained upon an opinion of Mr. Justice Crane, written in denying a motion to make permanent the preliminary injunction granted herein. At the Appellate Division there was an affirmance, without opinion, of the final judgment entered upon the order sustaining the demurrer.

And, again, in that part of the agreement which relates to the stretch from Franklin avenue to Stone avenue, where the railroad was not within the lines of Atlantic avenue as it was to be extended, the railroad companies agreed to “ cede and convey ” to the city of Brooklyn “ the strip of land of fifty feet in width now owned by the parties of the first part and occupied by the railroad tracks * * * upon this express condition, that the parties of the first and second parts shall forever have the exclusive right to use and occupy a strip or space of the width of thirty feet in the center of said Atlantic Avenue as so extended and in the center of Schuyler Street as thus widened, from the intersection of Atlantic Avenue to the easterly line of the city as thus widened for the purpose of railroad tracks and turnouts, and the running of locomotives and cars thereon, without interruption or molestation.” The reiteration with which these opposing phrases were used in attempting to define the rights of the parties to the compact compels the conclusion that the city of Brooklyn took the fee in the lands conveyed to it by the railroad companies, and the latter took an easement to occupy and use a strip thirty feet in width in the center of Atlantic avenue as widened and extended to Stone avenue. Thus, under the rule of stare decisis,

As to the thirty-foot strip, beginning at Stone avenue (the old city line) and extending eastwardly for a distance of 1.40 miles to Atkins avenue (the present city line), it appears that that is a part of the right of way originally owned by the Brooklyn and Jamaica Eailroad Company which was not affected by the tripartite agreement or the statute of 1855. It was outside of the corporate limits of Brooklyn in the town of New Lots. In 1869 the legislature passed an act (Chap. 217) authorizing the Supreme Court in the second judicial

This statute, although not referred to in the complaint, is a legislative act of which the courts may take judicial cognizance, and under which certain legal presumptions arise. Although the record before us does not contain a report of the proceedings under the acts of 1869 and 1870, the subsequent physical situation, as shown by the record, conclusively fortifies the presumption that the provisions of those statutes were complied with, and that the railroad companies either voluntarily relinquished the fee which they had held, or received proper compensation through the awards of the commissioners. Quite aside from these considerations, the subsequent history of the railroads and their relation to Atlantic avenue makes it plain that the nature and extent of the title or right of the plaintiffs in and to the thirty-foot strip extending from Stone avenue easterly to Atkins or Sheppard avenue is of no importance. We may add, moreover, that the complaint

We now pass to the consideration of what may appropri- . ately he designated as the second chapter of this history, which consists of the legislation of 1896 (Chap. 391), of 1897 (Chap. 199), of 1899 (Chap. 497) and of the various proceedings thereunder. The first of these statutes is entitled “ An act to authorize the appointment of a commission to examine into and report a plan for the relief and improvement of Atlantic avenue in the city of Brooklyn,” and in that connection it is pertinent to observe that the limits of the city of Brooklyn had then been extended so as to include the stretch of railroad running from Stone avenue (the old city line) to Atkins or Sheppard avenue, which is the dividing line between the counties of Kings and Queens and the present easterly line of the borough of Brooklyn. As the title of this act indicates, its purpose was to initiate proceedings for the betterment of the conditions which existed in Atlantic avenue owing to the presence of a steam railroad upon its surface. That the conditions were such as to justify this action is attested by the very full and intelligent report of the commissioners appointed, and by the subsequent acquiesencc of all the parties concerned, which resulted in what is colloquially known as the Atlantic Avenue Improvement Act (L. 1897, Chap. 499). Among the recommendations contained in the report, two stand out in conspicuous prominence. 1. The removal of the railroad from the surface of the street. 2. The substitution of electricity for steam as a motivo power. To accomplish the' first result, the topography of Atlantic avenue, no less than the necessity for economy, suggested a composite plan under which the railroad was to be depressed in tunnels at various points in the route, and elevated at others, with such surface and inclined connections as the details of the plan might require. As to this part of the. plan there is no controversy or misunderstanding for it was, in substance if not in detail, carried into the statute of 1897

This brings us to the precise question in controversy, both in Matter of Long Island Railroad and in the case at bar. The plaintiffs assert the right to construct and operate a surface railroad in connection with and as a part of the system now being operated below and above grade as stated. They base their claim upon the report of the commissioners appointed under the act of 1896, and upon the statute of 1899 (Chap. 497). It is true, as already stated, that in the former case this question arose in a different form and as to a limited extent of territory. There the issue was tendered upon the application of one of these plaintiffs for the appointment of commissioners to determine whether the tracks for certain turnouts should be laid and it related only to the territory east of Bedford avenue. Here the question arises upon the right of the defendant to remove as unauthorized obstructions in the highway the tracks laid by the plaintiffs in anticipa

The claim that the special charters of the Brooklyn and Jamaica and the Long Island Railroad Companies, by authorizing ‘ a railroad with a single or double track, and with such appendages as may be deemed necessary for the convenient use of the same5 (L. 1832, ch. 250, and L. 1834, ch. 178), permitted the use of a trolley line before the constitutional provision above quoted was adopted, is involved in the primary and controlling question whether the proposed trolley line is a new road or merely an appendage or part of an old road, such as the addition of a third rail might be. Perhaps a more accurate statement of the question would be to ask whether the effect of both acts is to put two railroads in a street where there was but one before. Were it not for the limitation in the charters of the companies there would be some reason for holding that even a third track should not be regarded as a new road. Such a track would have so intimate and inseparable a connection with the road as to give color to the claim that it was a part thereof. Such, however, is not the situation presented by this appeal. Here we have two roads, not of the same kind or on the same level. One is wholly an underground or elevated road for through travel, reaching far into the country and with no surface grade until the city boundary is passed, while the other is an ordinary street railroad, built on the surface, for local traffic within the limits of the city. Each road is an independent entity, existing by itself, operated by its own method, with its own tracks, signals and appliances, which are used exclusively by itself. • Each may be separately owned, sold, mortgaged and managed. Neither has any physical connection with the other. Annihilate either and the other continues to exist in the. same condition as before, with every power and capacity unimpaired. Neither trains nor cars can be transferred from one to the other. They need not be of the same gauge, although doubtless they are. A surface railroad is separate and distinct

To the average legal mind there would seem to be no difficulty in gathering from the foregoing quotation a definite comprehension of the extent and effect of our decision in Matter of Long Island Railroad. No more conclusive illustration of the rule stare decisis could possibly be presented The identical question now before us was necessarily decided in that case. With that statement we might well end the discussion. But the magnitude of the interests involved, and the variety of the subsidiary questions raised have created a complex and voluminous controversy, in the judicial discussion of which it has been impossible to give equal emphasis and importance to all its parts. That circumstance has given the zealous counsel for the plaintiffs the opportunity to urge, with characteristic force and ability, that in our former decision we overlooked or misapprehended certain vital considerations, which are now more clearly presented, and which should lead to a different conclusion.

It is true, for instance, that the report of the commissioners appointed under the statute of 1896 was not as fully presented or discussed in the former case as it has been upon the present appeal. That report contained a proposition to “ operate a line of railway by the trolley system on the surface of the streets, thus replacing the existing ‘rapid transit’ trains by much more convenient and efficient service for short distance riders, while at the same time it will distribute the passengers

When we turn to the general statute of 1899, which was fully discussed in our former opinion and upon which the plaintiffs rely on this appeal, we find in its provisions intrinsic

That this point was neither overlooked nor misapprehended is clearly shown by the opinion of Judge Vann, for upon that phase of the subject he said: “ The Constitution provides that the legislature shall not pass.a private or local bill ‘ granting to any corporation, association or individual the right to lay down railroad tracks ’ or ‘ granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever.’ The legislature, however, may ‘pass general laws providing for’ these cases and for all others 1 which in its judgment may be provided by general laws.’ The power even to pass, general laws relating to the cases named is subject to the limitation that ‘ no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad, be first obtained, or in case the consent of such property owners cannot be obtained, the

But, waiving the fact that the question has been decided and considering it as an open one, there can be but one conclusion. If the trolley system proposed by the commissioners and for which the plaintiffs have laid tracks, was simply to be a part of the original railroad, why was it necessary to pass a general law ? For that purpose, the insertion of a few appropriate words in the special act of 1897 would have been sufficient. There was, of course, the obstacle presented by the constitutional provision that the legislature shall not pass any private or local bill granting to any corporation, etc., the right to lay down railroad tracks. But why should that be regarded as an obstacle if it was the purpose of the plaintiffs to merely substitute, as their counsel now argues, one kind of rails for another but for the same purpose? Why did the special law of 1897 say “remove” if the legislature meant “ exchange ? ” Does not this line of argument lead to inevitable absurdities which clearly reveal tiie necessity for a general law? Was not this proposed trolley line, this “feeder” to the established railroad, regarded as a surface street railroad? And, finally, was not the statute of 1899 intended to secure by legislation for the plaintiffs a right Avliieh they can only obtain by getting the consents provided for in the Constitution ? The obvious answers to these inquiries are, it seems to ns, easily to be found in a close analysis of the statute. It provides that “ Avhenever the right of way, grade or tracks of any steam railroad company in or adjacent to any street or highway in any city of the first class are required by law to be changed or altered by elevating or depressing the same for the purpose of discontinuing the use of steam poAver upon the surface of

As to the contention of the plaintiffs that they are entitled to the benefit of the act of 1899, because the changes under the act of 1897 were commenced and completed after the act of 1899 was passed and while it was in force, we need only say that this latter statute, if intended to authorize the construction and operation of a surface street railway, was in violation of the constitutional provision above referred to, and if, as counsel for plaintiffs now contends, it was designed to permit the construction and operation of a surface railroad as distinguished from a street railroad, its general provisions must yield to the explicit commands of the special statute of 1897, with which it conflicts. The fact that the act of 1899 was repealed in 1908, when as the plaintiffs now contend their rights had become established, indicates the legislative intent to clear the murky atmosphere by removing from the statute books a law which was either so ambiguous as to mean nothing, or was so directly repugnant to the Constitution and to other statutes as to render it a nullity upon'its face. All this applies as forcibly to that piece of road extending from Stone avenue to Atkins avenue as it does to the rest of the road, and it is immaterial, for the purposes of this discussion, whether the plaintiffs still have, as they claim, a title in fee to the tliirty-foot strip from Stone avenue to Atlantic avenue.

These views logically lead to the conclusion that the demurrer was properly sustained, because the facts set forth in the complaint do not constitute a cause of action, and that final judgment was correctly ordered therein, for the facts are matters of record which cannot be changed by an amendment of the pleading. As to that part of the plaintiffs’ prayer for

The order of the Appellate Division affirming the final judgment entered upon the order of the Special Term should be affirmed, with costs.

Cullen, Ch. J., Guay, Vann, Haight and Chase, JJ., concur; Willard Bartlett, J., absent.

Ordered affirmed.