Manhattan Bridge Three Cent Line v. Brooklyn Heights R.

The question is whether plaintiff may maintain proceedings to ascertain what compensation shall be made to defendants for carrying its tracks across those of the defendants in the Flatbush Avenue Extension and the manner of doing it. The debatable questions presented on the appeal are whether the plaintiff is entitled to maintain the proceeding, inasmuch as it has obtained only the required consent of property owners on the Flatbush Extension and not on its whole line, and has not obtained, and as found cannot obtain, the consent of other railway companies to operate over the tracks for more than 1,000 feet, as it will be necessary to do to fulfill the charter. The line along the Flatbush Extension is but a fragment of the chartered route, which is from the locality of Desbrosses Street Ferry in the borough of Manhattan through several streets to the Manhattan Bridge, thence over the bridge and in the borough of Kings through Flatbush Avenue Extension, F.ulton street, Rockwell Place and a number of streets, to join again the Flatbush Avenue Extension.

[ 1 ] In the borough of Manhattan there are two or more railroads belonging to other companies, which for more than 1,000 feet are coincident with such route, and the owners thereof will not consent to their use by the plaintiff, and in the borough of1 Brooklyn two of the appellants as lessee or owner will not consent to a similar use of their tracks. The result at present is that the plaintiff cannot operate its proposed railway as its charter permits and demands. But the fact that it cannot agree with one or more persons for the acquisition of right of way does not impair its chartered rights or pervent its acquisition of other right of way in another part of its line. First comes the-creation of the corporation, then the acquirement of1 the right to build and operate a railway, and later the construction and operation of the railway. But the acquisition of right of way must precede construction, and for this the company must be enabled. But a person, whose property for right of way can be had only by his consent, cannot use his nonconsent to prevent the taking of other of his property by condemnation, nor can a third person use such nonconsent to thwart the taking of1 his property. Why should either be permitted to do that? The franchise exists. The law does not make its existence or continuance dependent upon such consent. The corporation can fulfill its charter in all practicable directions; if in the end the road should not be duly built and operated, because the consent cannot be obtained and the right of way secured, then forfeiture may follow, unless the state meantime through its Legislature or other authorized agent make other provision. Thus in the end a nonconsenting railway company may

[2, 3] The more serious objection of the appellants is that the plaintiff has obtained the majority consent of the property owners only on one street, to wit, the Flatbush Avenue Extension, and not on its chartered route. Whatever the Constitution requires must be done as a condition precedent to this proceeding. Colonial City Traction Co. v. Kingston City R. R. Co., 153 N. Y. 540 , 47 N. E. 810 . What is it? The plaintiff’s contention is:

(1) “That the street is the unit for the performance of conditions precedent to the operation of a street railway in the public highways’’; (2) “that in making an application to condemn a private interest, the conditions precedent must be performed only in so far as they relate to the particular street in which the interest sought to be condemned is located”; and it relies upon G. & W. Ry. Co. v. N. Y. C. & H. R. R. R. Co., 163 N. Y. 228 , 57 N. E. 498 .

But the limit of the holding was that the right of one railway company to cross the tracks of another was dependent upon the consent of the local authorities and abutting property owners of a town wherein the crossing of other tracks was to be made, and that the like consent of the authorities and owners in villages wherein the road extended was not necessary. This is far from decision that for the purposes of consent each street is a unit, and that, if the property owners thereon consent, the company can exercise the right of eminent domain on that street. The Constitution (article 3, § 18) is:

“But 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 Appellate Division of the Supreme Court, in the department in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners.”

The Railroad Law provides (section 171):

“A street surface railroad, or extension or branches thereof, shall not be built, extended dr operated unless the consent in writing * * * of the owners in cities and villages of one-half in value, and in towns, not within the corporate limits of a city or village, of the owners of two-thirds in value, of the property bounded on and also the consent of the local authorities having control of that portion of a street or highway upon which it is proposed to build or operate such railroad, extension or branch shall have been first obtained.”

May a railway be built on a street in a city even if no owner thereon consent, provided owners of one-half in value of the property on the remainder of the line consent? May the owners on one street by non-consent defeat the enterprise and the wishes of a majority on the route ? When the owner on a street consents, does he consent to the construction of a railroad on such street irrespective of its construction on the whole route proposed? The present plan proposes to use at least sixteen streets. Does the law require the majority consent on

The Constitution and .statute requires the majority consent in value of the “property bounded on * * * a street or highway upon which it is proposed to construct or operate such railroad.” The consent in terms is required on “a street” where construction is proposed, not on the route of combined streets. It was well known when such provision was adopted that street railways often pursued a line through several streets, although perhaps the line was known by some principal street occupied. The word “route” or “line” was the usual term and so commonly employed that the selection of “a street” for the purposes of consent has significance. There is such peculiarity in the term as to suggest that each street was particularized as a sepárate consenting factor. There is certainly some difficulty in the conception of the Legislature authorizing the construction or operation of a railroad on a street, which is a mere fragment of the authorized route. ■ But the Constitution and statute are negative. Whatever the chartered route, the construction and operation must not invade a nonconsenting street, unless consent be given for it by order of the court. Hence I conclude that, if otherwise authorized, a street railway company may, upon obtaining the majority consent on a street, enter upon that street and construct its railway thereon. If there has been no decision to that effect, there has been none adverse to it.

It has been judicially stated that the object of the provision is to enable the property owner to give or to withhold his consent to the additional easement in the street that the company would acquire. G. & W. Ry. Co. v. N. Y. C. & H. R. R. R. Co., 163 N. Y. 229 , 57 N. E. 498 . Or, as said in Colonial City Traction Co. v. Kingston City R. Co., 153 N. Y. 540 , 47 N. E. 810 :

“The object of the statute is to protect the public against injury to the streets, without the consent of their representatives, and also to protect the property of the citizen against injury without his personal consent or the consent of a majority of the abutting owners, or, where the refusal to consent is unreasonable, the order of the Appellate Division of the Supreme Court.”

In Matter of People’s R. Co., 112 N. Y. 578 , 20 N. E. 367 , the deci- . sion in its effect tends to the conclusion reached. The petition for the substituted consent related to certain streets, but did not include all the streets on the chartered line, and notice of the application was given only to the property owners on the streets included. It was decided

The orders and judgment should be affirmed, with costs. All concur.