McCutcheon v. Terminal Station Commission

On September 6, 1913, the terminal station commission of the city of Buffalo entered into a contract with the Delaware, Lackawanna & Western Railroad Company and the New York, Lackawanna & Western Ráilroad Company, the purpose of which was to effectuate and carry out certain plans for a railroad terminal .in said city theretofore adopted by the commission. This action is

The defendant Lackawanna Railroad Company has, for many years, maintained tracks in the city of Buffalo crossing Michigan street, with two tracks overhead between Elk and Ohio streets. The tracks in question continue westerly to Ohio street, and through Ohio street partially on an embankment and partly at grade across Illinois street, Love alley, and Indiana, Washington, and Main streets, to the present passenger station, which is situate on the westerly side of Main street. A retaining wall in Ohio street extends for a distance of about 400 feet to Liberty street, and narrows the usable portion of Ohio street between Illinois and Mississippi streets to about 30 .feet. The passenger station now in use is small, incommodious, and inadequate for the present traffic, and has so been for some years. There is also a siding on the south side of the main tracks, from the center of Washington street to Liberty street, and switches also run from the main tracks between Main and Washington streets, which cross Main street at grade. Five tracks, therefore, at present cross Main street at grade. The Lackawanna Railroad also maintains a freight house on the Buffalo river between Main street and Commercial slip, with tracks funning thereto at grade through Prime street and across West Perry, Hanover, and Lloyd streets. All traffic, therefore, passes from the passenger station and the freight house across Main street at grade. In addition, a large coal trestle is maintained on Buffalo river, where large quantities of coal are handled each season and transported over the tracks aforesaid. For several years the railroad facilities and terminals have been inadequate to properly handle the passenger and freight business within the city of Buffalo, and the large number of grade tracks have been a great burden upon the streets in question. For several years efforts have been made to improve and enlarge the terminal facilities of the above-named railroads, and to remove as far as possible the grade tracks from the streets of the city, to the end that proper and adequate facilities might be had.

In 1910 the Lackawanna Railroad Company submitted to the Mayor of the city of Buffalo a proposed plan for the enlargement and betterment of their terminal, and proposed the removal of the grade tracks as far as possible. The state public service commission made an official investigation of the matter, and instituted a proceeding having as its primary object the removal of the dangers incident to the grade tracks at the foot of Main street. Public hearings were held, and" the commission passed upon the plan submitted as aforesaid to the mayor, and on the 14th of December, 1910, all of the commissioners, in a memorandum, stated that no site was available for the new proposed Lackawanna railroad terminal, except near the foot of Main street, or on the outskirts of the city, and that if such a terminal was constructed it would be necessary to construct the same east of Main

On July 28, 1911, the Terminal Station Act became a law (chapter 842, Laws of 1911). This act created the terminal station commission of the city of Buffalo, and authorized and directed the commissioners to adopt from time to time plans for the purpose of relieving the congested condition of the railroad situation and terminals in the city of Buffalo, and to malee and require such changes in the location and use of tracks, switches, terminals, stations, or railroad facilities for the transportation of passengers and freight, and to secure to the public freedom from obstruction of the streets of the city by railroads. The commission was ■ further authorized to alter, change, or discontinue such streets as might be necessary in carrying out the purpose of the act, and to exchange lands belonging to the city of Buffalo for lands belonging to the railroads. In case of such exchange of city lands, or the appropriation thereof for railroad purposes, the act further provided for the appraisal of such lands and for the payment of the appraised value thereof. All provisions of the city charter which might be inconsistent with the Terminal Act were therein declared to have no application to the matters placed in charge of the commission under said act, and after the passage of the act no other city body had any authority over the matters intrusted to the commission by the act. The powers, however, of the state public service commission were in no wise restricted by the act in question.

After the passage of the act, litigation followed, and the constitutionality thereof was established. People ex rel. Simon v. Bradley, 207 N. Y. 592 , 101 N. E. 766 . Thereafter, and on December 16, 1911, the terminal station commission gave notice that it proposed to adopt a plan relating to the Lackawanna station, and gave notice of a public hearing, as provided by section 3 of the act. The plan proposed was substantially the same as the former plan proposed by the railroads and approved by the public service commission. Upon the hearing certain proposals were made for changes and alterations of the proposed plans, and after the hearing and upon the date aforesaid the terminal commission adopted the plan substantially in its original form and entered into the contract which is herein sought to be annulled. The plan and contract so adopted and made unquestionably provide for adequate terminal facilities for the city of Buffalo in respect to the railroads involved, and abolish substantially all tracks at grade by carrying the same over the streets at a proper elevation. To accomplish the results sought, the contract provides for the closing of a strip of the present Ohio street westerly from its junction with Elk street to the easterly line of Main street alpng its southerly side, and, through acquisition of an adjacent strip on the north, to practically relocate said street and open a new street, to be known as Ohio street, situate somewhat northerly of its present location. Front street, so called, was also discontinued, and certain exchanges of lands were proposed which placed in control of the railroads the territory which the commission deemed necessary for

[1] It is contended that the plaintiff’s only remedy was to review the action of the commission by writ of certiorari. Such a proceeding would undoubtedly have been proper. People ex rel. Myer v. Adam, 74 App. Div. 604 , 77 N. Y. Supp. 754 . The plaintiff, however, did not avail himself of the remedy thus afforded within the statutory time, but waited until after the execution of the contract in question, and after large sums of money had been expended, before bringing this action. While the court should not herein consider the wisdom of the plan adopted for the new terminals proposed, the plaintiff has a right, we think, to question in this action the legality and validity of the contract made with the railroads for carrying out the plan, and to question the powers vested in the terminal commission to execute the contract in question. The plaintiff, being a taxpayer, has the right to maintain an action to declare null and void official acts, if unlawful and unauthorized by law. Section 1925, Code of Civil Procedure; section 51, General Municipal Law; Talcott v. City of Buffalo, 125 N. Y. 280 , 26 N. E. 263 ; Kittinger v. Buf. Traction Co., 160 N. Y. 377 , 54 N. E. 1081 . Plaintiff in this action makes no claim of fraud, collusion, or bad faith on the part of the terminal commission or railroad defendants.

[2] The appellants first contend that after the public hearing the commission made certain modifications to the proposed plans, and that, because no further public notice was given, the adoption of the modified plans was illegal and contrary to the act. As the modifications in question were the result of the. public hearing held, such claim has no foundation, and it is clear that no other notice was required by the act. It is, in fact, provided that the testimony taken at the public hearing shall be reduced to writing, and that the commission shall make a report in writing “wherein they shall state the plan adopted by them.” This “report shall be filed in the office of the clerk of Erie county, together with the testimony taken before the commissioners, and such report shall thereupon become the plan for the part of the work provided for or referred to therein.” The words of the statute in question clearly dispose of the above objection in favor of the respondents.

[3, 4] The plan adopted provides for the laying of an extra single track in Water street at grade for a distance of about 350 feet from the westerly side of the Commercial slip, and substitutes an overhead crossing in Main street. The single track in Water street, leading from the main track of the railroad, is for the purpose of relieving the heavy traffic heretofore passing over Main street to and from the warehouses extending from the westerly line of Main street to near the foot of Commercial street, and the evidence seems to clearly demonstrate the necessity for this track, and the terminal commission clearly had authority under the act to provide for the laying of such extra or new tracks as might be necessary to carry out the general purpose of the act; otherwise, the city might be deprived of many benefits which could be derived from the changing, alteration, and relocation of the railroad

[5] Similar questions are raised in respect to the new fireboat slip proposed to be constructed a short distance easterly from its present location, of larger size, with a concrete dock, and also in respect to the installation of new water mains and intakes to be used in connection with the fire tug. It is provided in the contract that the railroad shall pay a stated sum to the city as 'the estimated cost of installing these water mains and intakes, if the city desires to accept such sums and construct the mains and intakes, and, in case the city; shall not so elect, that the railroad shall install the same without expense to the city. The land occupied by the old slip' is to be exchanged for the lands embraced in the new, and said parcels are to be appraised under section 7 of the act. It is therefore apparent that the change of location of the slip will be without expense to the city, and that the city will thereby acquire a new, enlarged, and much improved fireboat slip in exchange for the old, together with new and adequate mains and intakes to be used in connection with the fire tug. A triangular-shaped parcel of land lying west of Main street and abutting Buffalo river is to be conveyed by the Lackawanna railroad to the city. Such conveyance is made necessary by reason of the-fact that the city has heretofore maim tained in Washington streetj running to Buffalo river, a certain water main with connections for fire tugs.- The spur end of Washington street extending to the river being closed by the plan adopted, it is necessary that a new water main be elsewhere constructed for the protection of the city. The new mains and intakes are proposed to- be placed on this triangular parcel, which is adjacent to the river and so located that the fire tug can lie alongside and pump water into the main. The cost of the construction of the new main and intakes is to be borne entirely by the railroad company. It is apparent that the adoption of that portion of the plan objected to as aforesaid was necessary in order to carry out the general scheme, and that the city of Buffalo will ultimately be greatly benefited -thereby. Both this triangular parcel of land and the spur end of Washington street have been appraised, and the commission, therefore, cannot be said to have exceeded its author

Among the streets of the city to be closed, as provided in the plan adopted by the terminal commission, are portions of Prime street, Ohio street, Front street, and those portions of Washington, Indiana, Illinois, Mississippi, Liberty and Columbia streets which extend from Ohio and Elk streets to the Buffalo river or to Front street (so-called). The strip of land called Front street extends along the northerly margin of Buffalo river, the portion proposed to be discontinued lying between Main street on the west and extending easterly for some distance past the extension of Columbia street along Buffalo river. The contract with the railroads provides for the appraisal of all lands in which the city has the fee embraced within such streets in the manner provided by section 7 of the Terminal Act, and that the city shall be compensated therefor. In respect to the streets closed in which the city has no fee, no compensation whatever is to be paid to the city. The city has no fee in Front street, or to the stub ends of Indiana, Illinois, Mississippi, and Columbia streets. There is a question which cannot be here determined as to whether or not the city has the fee in Liberty street or in the stub end thereof extending to the river, there being a dispute as to whether or not the fee of a portion of this street is in the abutting owners or in the municipality. Whichever the case may be, the fee can be acquired by condemnation proceedings and as provided in the Terminal Act, and, if it is there determined that the city owns such fee, proper compensation must be provided.

[6] An appraisal has been had of the value of all lands situate in the closed streets in which the city has a fee. The appellants, however, claim that the public has an easement of value in the portions of the other streets to be closed in which the city has no fee, and that the terminal commission had no right or authority whatever to close these streets and to surrender such rights without compensation from the railroads; the act of the commission being alleged to be unlawful and in violation of the Constitution of the state, which provides that “no county, city, town or village shall hereafter give any money or property, * * * to or in aid of any individual, association, or corporation.” Article 8, § 10. The city as such has no property interest in the streets in which it has' no fee. Even if it owned the fee in such streets, such fee would not be such a property right as would be protected by the above clause of the Constitution. People v. Kerr, 27 N. Y. 188 ; Craig v. Rochester City & Brighton R. R. Co., 39 N. Y. 404 ; Peck v. Schenectady R. Co., 170 N. Y. 298 , 63 N. E. 357 ; People v. Tax Commissioners, 174 N. Y. 443 , 67 N. E. 69 ; City of New York v. Rice, 198 N. Y. 128 , 91 N. E. 283 , 28 L. R. A. (N. S.) 375 .

[7] Where the fee of a street or highway is in a city, the city holds the street in trust for the people at large.

[8, 9] The Legislature has authorized the terminal commission to discontinue such streets as may be necessary to carry out the project in hand, and has provided the means of appraisal of the streets .in which the city has the fee, and has stipulated that the moneys awarded thereon be paid to the city. In respect to the streets to be closed in

“The commissioners are authorized and empowered to acquire any lands in the city of Buffalo, to close or alter any street, alley or public place, to change in or remove from any such street, alley or public place any gas or water pipes, sewers, conduits or other objects, or change the grade of any street which they shall decide shall be necessary for the purpose of carrying out the plans and contracts hereby authorized, and the proceedings provided for in section 7 * * * shall be applicable for the purpose of acquiring title to any lands necessary to be taken.”

Pursuant to section 7, an appraisal commission is provided for to ascertain “the' fair market value of any lands aimed by the city of Buffalo, to be exchanged or sold by it.” It is therefore very plain that compensation is not to be received, except in respect to lands owned by the city. The mere right of the public to travel over the portions of the streets to be closed does not fall" within the language of the act; such belonging to the people of the state at large, and not being confined to the inhabitants of the city of Buffalo. The closing of these streets would simply relieve the land over which they run from the burden of a public easement. The defendant railroads have acquired or must acquire by condemnation or purchase all of the rights of abutting owners and the rights of the owners of the fee in the streets in question. The appellants’ claim, therefore, that the city is entitled to compensation for the loss of such public easements, is neither founded upon reason, nor does it fall within the provisions of the state Constitution or the Terminal Act.

[10, 11] In addition to the objections above considered, the appellants claim that the terminal commission has exceeded its authority in closing Front street, and very seriously contend that the closing of this street is an abuse of discretion and a waste of public property,, and that by reason thereof the city of Buffalo has unnecessarily lost public rights of great material value. The city of Buffalo does not own the fee in the strip of. land known as Front street. The Lackawanna Railroad Company owns all of the abutting property as well as the fee of the street, if it may be so called, and the wharves and docks constructed over and beyond it to Buffalo river. The appellants urge, however, that as Buffalo river is a navigable stream, and as this strip of land furnishes a public way to the docks and wharves on the northerly shore, the closing of this so-called street deprives the public of access to the navigable waters of the river and to the docks and wharves in question.

As the terminal commission determined that the closing of Front street was necessary to the general plan, and as it apparently acted within its authority, it makes little difference whether the strip of land known as Front street was a public street or not at the time the terminal commission took action. It appears that prior to 1830 a strip of land along the north bank of the Buffalo river east of Main street was used to some extent for travel to and from the water front. In the early ’30’s numerous resolutions were passed by the village authorities, referring to this strip of land and to the docks adjacent thereto, and referred to the same as a “street.” It does not appear, however, that there was ever any dedication of the strip to the municipality for street purposes, or that there was any acceptance thereof as a street. The municipal authorities endeavored by resolution to compel certain lot owners to improve the street, and also attempted to close, by resolution adopted in 1832, the so-called original street, and to open a new one two rods in width. It does not appear that any such street was ever laid out, and the resolutions are of very little importance, except in so far as they show that some use was made by the public of this strip of land at the time of their

The right of the owners of the fee in Front street has never been questioned, until raised in the case of City of Buffalo v. D., L. & W. R. R. Co., 190 N. Y. 84 , 82 N. E. 513 , 16 L. R. A. (N. S.) 506 . In that case it was sought to establish certain rights in the city in Front street and in the wharves and- docks built over the same and extending into the Buffalo river. Judge Vann, in commenting upon the findings of the trial court, said, at page 94 of 190 N. Y., at page 516 of 82 N. E. (16 L. R. A. [N. S.] 506):

“About 1826 a public highway existed on the river front between Washington and Main streets. It still existed in 1838, when a dock was built by the abutting owners over and upon the land owned by them constituting said highway, covering it for its entire width and length. From that time to this the abutting owners have used the dock for dock purposes, and the general public have used it for highway purposes, neither use excluding the other altogether, although doubtless interfering with it to some extent. Under these circumstances, what became of the street when the dock was built? Can abutting owners destroy a street in this way? Did the construction of the dock annihilate the highway? There is no statute which gives it that effect, and according to the common law the street leaped from the ground to the dock and stayed there. It is there now unless it has been abandoned by nonuser, as we read the authorities. * * * While the street followed the dock, and covered the whole of it, that did not authorize the city to collect the wharfage; and although the dock was private property the same as the land beneath it, that did not authorize the defendant to prevent the public from using it for the same purpose for which they had previously used the land. The easement for travel still existed, but it was over the dock, which took the place of the land constituting the street.

Owing to inconsistent findings of fact, the Court of Appeals reversed the judgment appealed from and ordered a new trial, which trial was never had. The inconsistent finding above' referred to was that Front street had not been traveled or used as a public highway for more than 6 years, which was inconsistent with the finding of fact that the public used the dock continuously from the time it was built, both for foot and vehicle traffic, as a way of communication from Main street and points east of Washington street.

The terminal commission was apparently in doubt as to whether or not the strip of land known as Front street was in fact a street, and,

[12] The right of the terminal commissioners to provide in these plans for accommodating lake traffic is questioned by the appellants. We do not think that this question is properly in the case. The fact that lands already owned by the railroads adjacent to Buffalo river are to be utilized for the erection of the new terminal should not give rise to the suggestion that the commission is endeavoring to obtain properties for the railroads for the purpose of aiding them in their competitive lake traffic. The fact that the property is adjacent to Buffalo river and the lake, of course, makes the spot chosen better adapted for the purposes of a railroad terminal, and the commissioners not only had a right, but it was their duty, to consider the convenience of lake traffic and docking facilities in connection with the plan to be worked out to provide a proper and suitable railroad terminal. If the plan adopted has thus provided for proper concrete docks and wharves, the commission is not to be criticized for thus uniting the terminal proposition with the lake traffic of the railroads. The authorities of the city of Buffalo have for many years had supervision over both private and public docks and wharves which are of a quasi public character. It is apparent that the Legislature intended to empower the commission to adopt such plans as might be necessary in the premises, and certainly thé plans would be inadequate if they did not provide for a proper union between the lake and land transportation facilities of the city. This is all that the commission apparently had in mind in adopting that portion of its plan which relates to Front street and the docks over and along the same. The Terminal Act specifically authorized the commission to adopt plans "for the purpose of relieving the congested condition of the railroad stations and terminals in the city of Buffalo, which plans shall require the railroads or other transportation corporations operating within the city of Buffalo to make such changes” as seem necessary to the commission. It therefore appears that the Legislature intended to authorize

[13] Pursuant to the provisions of the Terminal Act an appraisal commission was duly appointed by the Supremé Court, of which commission Hon. Albert Haight, a former judge of the Court of Appeals of this state, was the head. Hearings were had before the commission, and a report was rendered, which forms a part of the case on appeal. The value placed by the commission upon the parcels of land to be conveyed to the railroad exceeded the value placed upon the lands to be conveyed by the railroad to the city by about the sum of $98,000. Under the terms of the contract, such excess was to be considered the city’s contribution toward the expense of elimination of grade crossings and relocation of streets provided by the contract. The evidence shows that the expense of the elimination of such grade crossings and the relocation of streets will be approximately the sum of $572,712.50. Upon the basis agreed upon, the city would bear 17 per cent, of the cost and the defendant railroads about 83 per cent. The appellants contend that the provision of the contract in respect to the above contribution on the part of the city is illegal, and renders the entire agreement void, on the ground that it violates the Terminal Commission Act and also subdivision 10 of article 8 of the state Constitution, which is above quoted. The contract provided that if, on the appraisal of the properties exchanged, a balance should be found in favor of the railroad, the railroad should release and discharge the city from any obligation to pay the same. It therefore appears that the contract is fair and reasonable from the point of view of the city of Buffalo. The sixth section of the Terminal Commission Act provides as follows:

“The commissioners may agree with any railroad or other transportation corporation interested, and any of them, what portion of the work necessary to be done shall be done by any such company interested, and what portion of the work shall be done by the city, and what portion of the cost of the proposed improvement shall be paid by each, the cost of any structure and the maintenance thereof built upon the lands to be used by any railroad company in the erection and maintenance of its railroad passenger or freight stations,” line or bridge, “shall be at the sole expense of said railroad company interested.”

In case the commission and the railroads should be unable to agree on the amount or proportion to be borne by each, a method is provided by section 8 of the act for determining and fixing the same. Under section 11 the commission is authorized to allow the railroad to do the entire work, and that the cost thereof shall be apportioned as provided in section 8. It is therefore apparent that the statute contemplates that a fair burden of the cost of the improvements in question relating to the elimination of grade crossings shall be borne by both the railroad and the city.

In considering the act in question, Judge Chase, in his opinion in People ex rel. Simon v. Bradley, 207 N. Y. 592 , 101 N. E. 766 , says:

“I am of the opinion, that the act does not contemplate the use of city money, directly or indirectly, for private purposes. It is true that the expenditures for street purposes are in large part made necessary by the changes in

the terminal facilities of the railroads provided by plans adopted by the commissioners, but the changes in the streets are, nevertheless, city purposes and the expenditures therefor are proper public expenditures.”

As the proportion to be paid by the city seems to be. entirely in its favor, the commissioners do not seem to- have exceeded their authority in contracting to contribute the $98,000 excess toward the improvements in question. The fact that the money was not paid into the city treasury by the railroads and afterwards disbursed does not affect in the least the validity of the contract in question. The method proposed is much easier and simpler, and it is unjust to claim that any advantage of the city is taken by reason of the retention of the moneys by the railroad companies in the manner provided in the contract.

Upon the whole, the terminal commission seems to have expended a large amount of time and labor in its endeavor to formulate the plan adopted for the improvement of the terminals and railroad facilities in the city of Buffalo and freeing the streets from obstructions. The plan adopted and the contract thereafter executed will, if carried into effect, greatly benefit the city of Buffalo. In adopting' such plan and executing such contract, the commissioners, in our opinion, have not exceeded the authority conferred upon them by the Terminal Act, nor is the contract illegal or void under any provision of the state or federal Constitutions or of the Terminal Act.

The judgment appealed from should therefore be affirmed, with costs to the terminal commission and to the railroad defendants. All concur.