McCutcheon v. Terminal Station Commission

This appeal presents to us for consideration for the first time a contract made in behalf of the city

The plaintiff as a taxpayer attacks practically all of its important provisions as being either violative of, or unauthorized by, the terms of the statute or as so sacrificing the interests of the city of Buffalo to the advantage of the railroads as conclusively to indicate that the commissioners in making them either were lacking in honesty and good faith or failed to employ that reasonable and intelligent wisdom and discretion which they were bound to exercise. He has been unanimously defeated in these claims by the trial court and by the Appellate Division.

The first challenge which he encounters on his appeal to this court is to his right to maintain this action, it being urged that relief should have been sought by him by direct review of the proceedings of the commissioners. We shall assume, however, without discussion that he is entitled to present in a taxpayer’s action ' all the complaints which he has been urging. But even so, it is well that in such an action as this, involving large questions of public importance, there should be kept clearly in mind the undoubted and very narrowing restrictions which control our consideration of this appeal.

In the first place, even if we could consider and draw our own conclusions from the evidence which has been presented, it would be neither our duty nor our right to substitute our judgment for that of the commission in

In the second place, we are not at liberty to examine the evidence to any extent. By the unanimous affirmance by the Appellate Division of the decision of the trial court we are concluded by the findings of that court. There are amongst these findings those which directly and broadly reject plaintiff’s claims of errors and shortcomings on the part of the commission and approve the action of the latter, and, therefore, force plaintiff to assume the burden of snowing that these general findings which are fatal to his claims are nullified by other findings of vari

With these general observations upon our powers we pass to a consideration of some of the more important objections made by plaintiff to the contract which is before us, and in order to make our discussion intelligent, it will be necessary to describe in a brief and general manner the location of streets, stations and tracks as they existed when the contract was executed and the more important changes approved by the commission in order to carry out the purposes of the statute.

In the city of Buffalo, Main street, as its name implies, is an important street. It runs substantially north and south, terminating at its southern end on the Buffalo river which is an important navigable body of water extending easterly and westerly and serving as a passageway between certain portions of the city of Buffalo and Lake Erie. Extending along the northerly hank of this river east of Main street was an open strip of land two rods wide known as Front street, more or less covered with and obstructed by docks owned by the defendant railroad companies and to a considerable extent traveled by the public. A short distance north of and parallel with this so-called street was another street known as Ohio street, and easterly from Main street were several streets running on lines substantially parallel with it and terminating in Front street. There also were several streets westerly and not far from Main street running in a northerly and southerly direction to or across defendants’ tracks. Defendants’ passenger station was located just west of Main street not far from the northerly bank of Buffalo river and in the same vicinity were located a freight house much used in connection with lake transportation and a coal trestle over which more than a million tons of coal were handled in each year. The tracks leading from the east to this passenger station and freight house

Under the contract in question it is proposed, amongst other things, to locate a passenger station on the easterly side of Main street at or near its point of intersection with Front street, to close Front street for a distance of about sixteen hundred feet easterly from Main street, to relocate a portion of Ohio street somewhat north of its present location and to close the ends of the streets east of Main street running into Front street within the distance of sixteen hundred feet above mentioned, and to construct modern docks on the bank of Buffalo river in close proximity to the proposed new station, to eliminate the crossing of Main street and other streets at grade by several tracks and to lay down in the street known as Water street west of Main street for a short distance an additional, track..

There is no claim that the situation originally existing was not an inconvenient, congested and more or less dangerous one which came within the jurisdiction of the Terminal. Commission, and there is and • can be no well-founded denial that the plans adopted by the contract under review will eliminate a great amount of crossing at grade of streets by defendants’ trains and afford much more convenient terminal facilities both for passenger and freight traffic. Neither is there any denial that it was a practical necessity to retain the defendants’ terminals within the limits of a very restricted area surrounding the junction of Main street and the Buffalo river. The substantial complaint in its final analysis is that the commission ought to have, adopted some other plan, such for instance as the one proposed by plaintiff, and thereby have avoided doing certain things which he now attacks as unnecessary and illegal.

In testing the action of the commission under these attacks, it is not necessary even to, summarize at this

The closing of Front street is assailed more bitterly than any other provision of the contract and will be considered first.

In my opinion there would be a chance for serious discussion whether the strip of land known as Front street had been legally laid out and accepted by the municipality of Buffalo or its predecessors as a street at the time the contract was executed. Amongst other facts found by the trial court, and some of which by themselves tended to support plaintiff’s theory that it was a public street, were the ones that “neither the city of Buffalo nor its predecessors nor any other person ever opened or worked as a highway the premises herein designated as Front street,” and that “the strip of land along Buffalo river from Main street to Michigan street * * * designated as Front street * * * was never opened or laid out as a street or traveled or used as a highway after the adoption of the resolution * * * purporting to establish it as a street two rods in width.”

Of course it is not forgotten that in City of Buffalo v. Del., L. & W. R. R. Co. ( 190 N. Y. 84 ) this court reached the conclusion that Front street was a public street. But that decision was based on the findings presented in that particular case and the underlying idea was that it having been found in effect that Front street had come into existence as a public street the other facts

But it does not seem necessary or even desirable to review at the great, length which would be required all the facts found in this case and the law applicable to the establishment of highways and streets for the purpose of determining whether Front street in fact had been legally opened and established as a city street. The Terminal Commissioners in making their contract with the railroads assumed that it was a public street and the trial court necessarily proceeded on the same theory when it held that it was necessary and proper for the commissioners to provide for closing it. I shall follow the same view which of course is the one more favorable to the appellant.

The findings abundantly establish that as part of the general plan adopted the closing of Front street, in connection with the agreement secured from the defendants to construct modern docks thereon at the margin of Buffalo river, will result in the elimination of grade crossings and will greatly increase the terminal facilities at the new passenger station to be erected by and at the expense of the railroad companies and to be employed in the transshipment of passengers and freight between railroads and lake boats; that the space thereby to be afforded is absolutely necessary in the loading and unloading of a modern boat, and that such closing is necessary and proper. I do not understand any serious dispute to be made of the proposition that the commission possessed, generally speaking, the power to close streets when necessary and proper to accomplish such purposes as these.

At plaintiff’s request the court found that as an engineering and physical matter it would have been possible to have adopted some plan which did not call for the closing of Front street, and it is urged that the plans submitted by plaintiff which avoided such closing should have been accepted. The defendants, on the other hand, insist that there were objections to plaintiff’s plans which made them utterly impracticable. In so far as this branch of the plaintiff's argument is reducible to the proposition that the commission might have adopted some plan which merely would have been wiser and better than the one which it did adopt, it obviously must fail. The contentions of the various parties concerning the merits of the different plans considered by the commission sufficiently illustrate the fact that human ingenuity would never be able to devise any plan which would suit everybody, and the commission was clothed with the power in behalf of the city to pass upon the merits of the various plans which might be proposed, and, as has already been stated, its conclusion within certain limits is controlling upon us. Counsel doubtless fully appreciates this, for he then argues with great earnestness what is his fundamental contention, that the plan adopted by the commission closing Front street involves such a surrender of public rights of ■ travel and dockage through and upon said

If we were convinced that the contract did result in taking from the city of Buffalo and in presenting to the railroad companies such valuable rights as are described by counsel, we should be loath to affirm the present judgment if some proper ground could be found for doing otherwise. We think, however, that his argument is founded upon a very substantial and far-reaching misconception both of the facts and of the law which are controlling upon us and which when correctly viewed place upon this provision an entirely different aspect than the one entertained by him.

Front street is only two rods wide. The abutting land upon the inland side and the fee of the bed of the street are owned by the railroad companies, with possibly the exception of one or two inconsequential bits. Said strip of land from a date .probably not antedated by its use for street purposes has been covered with docks and warehouses which have been and are the private property of the defendant companies and their predecessors. For many years the public has been accustomed to use the street for travel both by pedestrians and vehicles, but this travel has been to some extent obstructed by structures upon it and by the use of the docks for loading and unloading boats, and in addition the docks have now fallen into such a condition of disrepair that they have become dangerous for travel both by pedestrians and vehicles, and the amount of travel has steadily declined. The greater portion of this travel has been by people having business with the docks, warehouses and boats lying thereat, but to a lesser extent the street has been used by those desiring to reach the streets terminating in Front street already referred to and the Olark and Skinner canal, so called, near its easterly end

Great" stress is placed upon the alleged loss by the city of Buffalo through this contract of the -water front on the Buffalo river along Front street. But before and independent - of the present contract the city of Buffalo did not have the right to construct and use docks upon Front street and collect wharfage fees. Those rights have always been lodged in and owned by the defendants and their predecessors. When this contract was executed the public had the right to use Front street, as it had been used, for street purposes, but subject to this right the defendants had the right as owners of the abutting lands and of the fee of the street to construct docks and collect fees for the use thereof. This right was

Undoubtedly the closing of Front street will enable the defendant companies profitably to construct new and modern docks upon their land now covered by said street, as they have agreed to do, and in that manner will increase the value of their property. They had just as great a right before as they will have after the contract to construct such docks, but it is found that it would have been impossible to build docks by which modern lake boats could be accommodated without the use of the space now occupied by Front street for purposes of loading and unloading cargoes, and if the street had been kept open the companies would not have been entitled to so use these docks as to obstruct the use of the street by a

It does not follow, however, that any increment which may accrue in the value of the defendants’ property by reason of closing Front street will be accompanied by a corresponding surrender and sacrifice of public rights. In addition to the facts limiting the use of Front street for street purposes already referred to, it has been found in substance that the present docks are entirely inadequate to accommodate modern boats and that they and the warehouses thereon are falling into disrepair and decay and that “ for many years last past the value and useability of the property situate south of Ohio street, east of Main street, west of Michigan street and bounded on Buffalo creek has been steadily declining;” that travel upon the streets intersecting this area has steadily declined “ along with the decline of business transacted on this portion of the water front.” So it results that under the contract closing Front street the defendant companies secure additional space which will permit the operation and doubtless increase the value of terminal facilities to be constructed at their expense, and the city will give up certain very limited rights of passage through the street which have been sufficiently described and secure increased terminal facilities, and in addition the closing of the street is a well-defined part of a plan which secures the elimination of grade crossings.

It may or may not be that the railroad companies are getting the better of this bargain. . That is a question which can be, as it is, earnestly debated and we do not pretend to decide it. But whatever the answer to that question may be, it is perfectly clear that no adequate basis is found in a correct conception of the facts and principles of law which are binding upon us on this appeal, for the proposition that the action of the commission is so utterly unjustified by any fair reason and results in such unmitigated and overwhelming disadvan

This is the test by which upon this appeal must be 'measured the right of plaintiff in a taxpayer’s' action to restrain the action of the commission, and failing to satisfy this test, he cannot succeed. (Talcott v. City of Buffalo, 125 N. Y. 280 ; Ziegler v. Chapin, 126 N. Y. 342 ; Govers v. Board of Supervisors, Westch. Co., 171 N. Y. 403 ; Schanck v. Mayor, etc., of N. Y., 69 N. Y. 444 ; Dillon on Municipal Corporations [5th ed.], sections 242 and 1585; McQuillin on Municipal Corporations, section 2511.)

The provision in the contract most bitterly attacked after the one already discussed, in substance provides for the exchange between the city and the railroad companies of certain pieces of real estate and the contribution by the city of any excess in value of the real estate conveyed by it to the expense of relocating streets and eliminating grade crossings as provided in the plan adopted. The real estate to be conveyed by the city consists of portions of certain streets to be closed and to be actually occupied by tracks under a plan which eliminates much use and crossing of streets at grade, and the property to be conveyed by the railroad companies consists of certain parcels which are to be used in carrying out said plan by supplying new street space in place of those closed.. It has been found that the excess in value of the property conveyed by the city is a little less than one hundred thousand dollars.

The provision is attacked on the grounds, first, that it was unlawful for the commission to provide that the city should contribute this excess toward the expenses in question; and, second, that in any event it was unlawful for the commission to make this agreement until the respective values of the lands to be exchanged had been ascertained by a commission as provided in the statute.

The changes in the location of streets and of structures in streets which the commissioners were authorized to make were those which in their judgment might be necessary “to secure to the public freedom from the obstruqtions of the streets of said city by railroads and adequate services for the transportation of passengers, freight and property in the use of the railroad tracks, switches, terminal stations and facilities.”

It seems clear that the commissioners were authorized . to make a contract for the exchange of these lands and if the contract had followed the ordinary course pointed out by the statute by providing for the ascertainment through a commission of their relative values and for the payment to the city of any excess in value of its lands there would have been no basis for serious debate about the legality of the provision. The trouble, if any, therefore, arises over the provision made, before values had been • ascertained as provided by the statute, that this excess should be contributed by the city toward the expenses incurred" in the relocation of streets and the elimination of grade crossings.

I regard it as settled by our decision in the Bradley case that the city could contribute towards the expenses incurred in relocating streets and constructing street crossings as the same might be necessary under the plan

The trial court has found that certain expenses incurred and in the first instance paid by the railroad companies in closing streets, in re-erecting and constructing certain bridges and viaducts therein for tracks and in relocating Ohio street, all as provided in said plan, exceeded the sum of $500,000 or five times the amount to be contributed by the city. It, therefore, again seems clear that the commission had the right to provide for the contribution by the city towards the purposes specified of a sum equal to this excess in valuations and that it might provide for the payment of such contribution by the application of the balance due to it on the exchange of real estate as well as by municipal warrant. It, of course, cannot be a vice in the contract if otherwise legal that, instead of providing that a sum due from the railroads to the city should be paid by the former in cash, and that the contribution due from the city to the railroads on account of these expenses should then be paid by the city back to the railroads. Legal proceedings do not require that business usages should be violated and hampered by any such cumbersome methods.

The only real question in connection with this provision, therefore, is whether it was rendered invalid by the fact that the commissioners agreed to this contribution before it was authoritatively ascertained just what the contribution would amount to. I hardly think that this result follows. The provision for ascertainment of values by a commission was not intended to cover this particular

It is complained that the contract is illegal both because of what it does provide and what it does not provide in respect of Liberty street and what is known as the Clark and Skinner canal. These public places adjoin each other and their southern termini are at the Buffalo river within that portion of Front street which is to be closed, Liberty street extending northerly beyond Ohio street and the Clark and Skinner canal extending northerly to the southerly boundary of said street. It is agreed that each of these shall be closed, provision being made for the exchange between the city and the companies of the lands covered by the Clark and Skinner canal owned by the former and other premises with improvements to" be transferred by the companies and to which reference will be made.

The complaint in respect of the provisions relating to Liberty street is that they fail to provide for compensation to be paid by the companies to the city for the fee of the street. There is no provision for any conveyance of said fee by the city to the companies and I doubt if the city is the owner of such fee. Prior to proceedings under the Terminal Act and independent of its provisions a conveyance had been made by the city to the companies oj: any rights which it might have in the fee of Liberty street north of Ohio street. The present contract providing for conveyance on exchange by the city of that portion of Ohio street to be closed includes the intersecting portion of Liberty street within the bounds of Ohio street. It was found by the trial court that title to the fee south of Ohio street and north of “ Big Buffalo

But there is still another answer in so far as it is urged that the contract should be declared invalid because of the failure to provide for compensation by the railroad companies for the fee of this street, even assuming that it belongs to the city. As I have said, there is no provision for any conveyance of this fee to the companies. If the land belongs to the city then it will simply be necessary that ordinary condemnation proceedings or proceedings for appraisal under the Terminal Act shall be had to ascertain the payment to be made by the companies to the city for such lands. The necessity for such step would simply require proceedings supplementary to the present contract and the absence of provision in the contract therefor would not so affect the scope, substance and consideration of the provisions which are made as to invalidate them.

The Clark and Skinner canal is employed by the city as a berth for a fire boat, its use for ordinary canal purposes having long since been abandoned. It is. equipped with appropriate docks for its present use, and on the adjacent portion of Liberty- street there has been constructed by the city a large building for the accommodation of the crew

I do not find it to he argued that there is anything in the terms of these provisions which is unfair to the city or any question to be raised but that properly and in good faith provision is being made for the construction and equipment of a berth for the municipal fire boat in the place of the one which is to be closed at the Clark and Skinner canal. The contention is that this entire arrangement is utterly beyond the authority and power of the Terminal Commission and void and that it is such an integral part of the entire contract that the whole structure must fall with it. It does not seem to me that it is thus invalid.

The entire plan as adopted by the Terminal Commissioners required the closing of the slip for the fire boat and of Liberty street whereon rested certain buildings to be

The same provisions of this statute and the same general course of reasoning in my opinion answer the objections made by the appellant to the clauses in the contract for the acquisition by exchange with the railroad companies of the piece of land situate at the southwest angle formed by the intersection of Main street with the Buffalo river.

Washington street was the street next east of and parallel with Main street running to the Buffalo river, and as has already been stated the plan which has been adopted properly and necessarily as found by the court calls for the closing of the southerly end of this street. There were located at this end intakes for fire puiposes, and the use of these intakes would at times require that the fire boat should be there stationed. By the acquisition of the

Objection is made because the contract allows one track still to cross Main street at grade and another on a viaduct and allows the construction west of Main street of a short extension of a track already there and for a short distance of an additional track and which produces an additional street crossing at grade. The objections to all of these various features will be considered together.

In the first place, it is urged in substance that a contract which fails to eliminate all the crossings on one street and actually increases the number of tracks at grade on another street has necessarily failed in its purpose and must be unlawful. This argument as applied to the facts before us seems to be entirely without foundation.

The plan adopted by the contract must be considered as a whole, and when this is done it is seen that viewed simply from the standpoint of eliminating grade crossings it is not subject to objections of the character which are made. Main street is the important street, and prior to the contract was crossed by five tracks at grade. By the arrangement in question four of these crossings have been eliminated and the remaining one is maintained for restricted purposes. It has been found by the court that the preserva

But further, it must be kept in mind that the purpose of the present act is not only to secure the elimination of grade crossings but also to secure the extension of terminal facilities and conveniences and, therefore, the commissioners were entitled to take into account that result in making the contract which they did.

In the second place, it is urged that the contract permitting the additional pieces of track to be laid in W ater street violates the provision of the Constitution (Art. 3, section 18) 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,” and also the provision of the Railroad Law (Cons. Laws, ch. 49, section 21) that “No railroad corporation shall * * * construct its road in, upon or across any street of any city without the assent of, the corporation of such city.” I do not think that either of these claims is well founded. The Constitution was intended to prohibit the enactment of special legislation which had for its primary and .fundamental purpose the grant of privileges to construct and maintain railroads and tracks, and to compel the acquisition of such rights under general and uniform statutes. The legislature in accordance with the command of this constitutional provision has adopted the general statute for the organization of railroad corporations and the location and alteration of routes whereon may be constructed their tracks, and just as such Constitution prohibits special legislation, so the statute provides by general enactment for the original location of a route or for a substantial alteration thereof. Those enactments do not fit this situation,

Neither do I think that the section of the Railroad Law which has been quoted prevented the provisions which have been made by the commissioners. The statute simply requires that consent should be' given by the corporation and not by any particular body thereof, and it seems to me that the same legislative power which adopted this provision had ample power to authorize a commission which included three of the standing officials of the municipality to make an agreement in its behalf to such relocation of tracks as has been made in carrying out the main purpose of the statute. For many years a grade crossing commission has been engaged in the elimination of grade crossings in Buffalo. By the statute creating that commission _ the latter is expressly authorized in behalf of the city to make contracts with the railroad companies, and so far as I am aware no one has seriously questioned that the legislature might thus authorize this commission in behalf of the city to make contracts which undoubtedly required in some form municipal consent to their execution.

Complaint is made because the contract provides that

If the defendant companies should attempt to pursue any different course we have no doubt that the property owners would be able to find ample means of legally protecting their rights.

It is provided in the contract that “If, for any reason, at any time, within a period of fifteen (15) years from the date of the execution of this contract, said company, or its successors, shall cease to maintain, occupy or use its passenger depot at the place herein designated at which the same shall be built, by reason of its voluntary act, then and in that event said company shall forfeit its right, title and interest in and shall reconvey to the said city of Buffalo all of the lands herein referred to and described to be conveyed by said commission to said company.” It is argued from this provision that the defendant companies may at any time abandon their proposed new station and suffer as the only penalty for so doing the loss of lands conveyed to them, retaining any and all other benefits secured by them under the present contract.

This provision must be read in connection with a prior one whereby “ The company agrees at all times within a period of fifteen (15) years from the date of the execution of this contract, to move and bring into and

I think that the judgment appealed from should be affirmed, with one bill of costs to respondents.

In view of the conclusions reached by us upon the merits, and of the fact that all the issues argued by the city are also presented by the ■ plaintiff, the question whether the corporation counsel has the right to prosecute this appeal in behalf of the city is of no practical importance, and, therefore, the motion to dismiss the appeal taken by him in behalf of the city should be denied.

I dissent on the ground that some of the essential features of the contract in question involve the appropriation of the money or other property of the city of Buffalo to

The contribution by the city of the $98,000 excess awarded in the appraisal proceeding for the exchange of lands can only be justified upon the assumption that this amount represents a portion of the expenses necessarily and properly involved in the efimination of grade crossings, and I am not convinced that such is the fact.

I- find no authority conferred upon the terminal commission to acquire the triangular parcel of land on the Buffalo river for which the city pays by the conveyance of other lands. In People ex rel. Simon v. Bradley (supra) Judge Chase said that nowhere in the Terminal Act was there any express requirement that the commissioners should or might acquire real property for any purpose except in connection with the work of eliminating grade crossings, and that authority to acquire real property for any other purpose should not be inferred. According tó the trial court this triangular parcel is to be acquired for the relocation of fire mains; according to the terminal commission its acquisition is intended to give the city of Buffalo a dock frontage of 200 feet on Buffalo river. Neither purpose has any real relation to the elimination of grade crossings.

Although one of the express objects of the Terminal Act was to secure to the public freedom from the obstruction of the streets of the city of Buffalo by railroads, we find that the contract provides for laying tracks in a street where none now exist. I think that this provision

I have mentioned only a few obvious objections to the validity of the contract. There are others equally serious. Beading and' considering it as a whole, it seems to me that its authors, actuated doubtless by a desire to promote what they regard as the public welfare, have gone beyond their powers under the Constitution and the Terminal Act as heretofore construed by this court.

Chase, Hogan, Cardozo and Pound, JJ., concur with Hiscock, J.; Willard Bartlett, Ch. J., reads dissenting memorandum, and Seabury, J., concurs.

. Judgment affirmed.