Fayetteville & S. Railroad & Turnpike Co. v. Village of Fayetteville

In the year 1800 the Seneca Road Company was incorporated (Laws 1800, c. 78) for the purpose of establishing a turnpike from Utica to Canandaigua. In pursuance of this statute the portion of the turnpike extending from the present village of Fayetteville to the present city of Syracuse was built upon the old state road, and seems to have been operated at an early date. In 1847 the corporation was authorized to sell sections of its turnpike road to plank-road companies (Laws 1847, c- 2I0)> and thereupon it did convey the portion above mentioned to the plaintiff, which has ever since used and maintained the same. The village of Fayetteville was incorporated by chapter 284 of the Laws of 1844. It was: later reincorporated under the general village law (Laws 1870, c. 291),. and is now governed by chapter 414 of the Laws of 1897, which superseded the act of 1870. The turnpike in question passed through the center of the village, and became one of its principal streets. It is largely used by the public, and it is connected with other village streets necessary for the accommodation of the people. It is known as" “Genesee Street.” In 1895 the Syracuse & Suburban Railroad Company, desiring to build an electric railroad from Syracuse eastward, obtained the consent of the village authorities for such construction along this turnpike road through the village, and in 1897 it obtained the consent of the plaintiff to its use. Under the village franchise the rails of the electric road were to be laid flush with the-surface of the streets over which they passed. As a matter of fact,, however, with the consent and approval of the village, the rails on Genesee street, from the Beard Block westwardly to the village line;, were laid some inches above the old grade of the turnpike. Thereafter the turnpike company raised their road so as to conform to the-grade of the rails, and it must, I think, be assumed that under the circumstances this was done rightfully, and with the consent of the village. Some time during the year 1900, and prior to October 15th, the village authorities, by resolution, assumed to change the grade of Genesee street between a bridge and the westerly line of the village, and to establish a new grade for such portion of the street. No copy of these resolutions seems to have been served upon the plaintiff, and no notice was given it to conform to the grade as established. On October 15, 1900, the village officers entered upon Gene-see street, plowed and scraped off the stone from the plaintiff’s road' so as to reduce it substantially to the level which it had occupied prior to its elevation to meet the grade of the railroad tracks; thus-conforming it to the grade as claimed to have been newly established. The road was not, however, restored by the village to its original

The question was at one time raised by the defendant village that the action could not be sustained in equity because the work contemplated had been finished, but the attorney for the village in' his brief states that he does not wish a dismissal of the case as to the village unless a dismissal is also granted as to the other defendant, the Syracuse & Suburban Railroad Company, which corporation does mot ask for such relief. This question, therefore, will be deemed waived by the village, and will not be considered. The sole point to .be determined, therefore, is as to the powers of village or city authorities over a turnpike corporation whose road passes through their limits. The answer to this question depends, in the first instance, upon the power of the legislature to regulate the manner in which the plaintiff may use its property. The old state road has not ceased to be a highway because of the rights conferred upon the turnpike corporation therein. All that was conferred upon it were certain easements. Seneca Road Co. v. Auburn & R. R. Co., 5 Hill, 170 ; Walker v. Caywood, 31 N. Y. 51 . These easements and rights, however, constituted a property vested in the corporation, and of which, as a general rule, the corporation may not be deprived without its consent. But all property held either by corporations or individuals as subject to the police power of the state. It is subject to burdens imposed by and incident to the growth and development of the country. And if this is true of all, it is especially so of corporations which, like those created to build turnpikes, railroads, telephone, or telegraph lines, are impressed with a semi-public character, and acquire their powers by virtue thereof. Such corporations are subject to the control of the public in a much greater degree than corporations purely private. Such is the nature of the charter granted to the Seneca Road Company. It was conferred with the knowledge on both sides that with the increase of population and with the growth of cities and villages conditions would come into existence to which property rights must yield, and when the company accepted its franchise k accepted it upon the implied condition that it should hold it subject to such reasonable burdens. It is true that the mere fact that its road should be thereafter brought within the territorial limits of a town or city would not deprive the company of its corporate rights, but to hold that such a change of condition might not take place as would subject it to some burdens from which it was originally free would be to grant to it greater rights than belong to natural persons. All owners of land over which,- by the increase of wealth and population, municipal boundaries are extended, may have heavier burdens of taxation imposed upon them, and their use of their property limited and restricted in various ways. The grade of the street in front of their land may be changed, although, the effect may be to greatly diminish its value. Various uses of the street are allowed which would not be tolerated in a country high

“It is a well-settled principle,” he says, “growing out of the nature- of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to,the rights of the community. All property in this commonwealth is held subject to those general regulations which are necessary to the common good and general welfare.”

For a general discussion of this inherent power which resides in the legislature and the public reference may be made to the well-known cases of People v. Budd, 117 N. Y. 1 , 22 N. E. 670 , 5 L. R. A. 559 , 15 Am. St. Rep. 460 , People v. Squire, 107 N. Y. 593 , 14 N. E. 820 , 1 Am. St. Rep. 893 , and Munn v. Illinois, 94 U. S. 113 , 24 L. Ed. 77 .

Governmental authority in these matters—the police power, in short—permanently resides in the state. It is inalienable. Whatever its charter, a corporation cannot be exempt therefrom; and the right to enact measures for the health, safety, and welfare of the community is never lost. Gas companies with pipes in the street have no vested rights that will prevent a- change of the grade of a highway and the consequent derangement of their mains. Gaslight & Coke Co. v. City of Columbus,. 50 Ohio St. 65 , 33 N. E. 292 . So it has been held in this state that, where a naked franchise or permit has been granted by municipal authorities for the use of its streets by a gaslight company, they are not liable for any incidental damages resulting from the making of street improvements and other public work involving the disturbance of the streets by such authorities. Gaslight Co. v. Van Vranken, 11 App. Div. 420 , 42 N. Y, Supp. 339 . It is so with railways in the highway. The grade of the tracks may be changed, or they may even be displaced, and the opera^ tion of the road prevented for a reasonable time, when such a course has become necessary in the course of public improvement. It is so with lines of telegraph poles, and it is so with regard to turnpike corporations. They are, of course, to be protected against a wanton or oppressive interference of their rights, but it can hardly be that, in defiance of the legislative mandate and its police regulations, they may maintain a grade that will hinder the development of cities or towns, and subject the public to great expense or inconvenience or danger.

If the legislature may so exercise its police power as to compel the change of the grade of a turnpike, it may confer a similar authority upon its local municipal agents in whom is vested the governing power in their own localities. The next question, then, to be determined is this: Whether or not such power has been in fact conferred upon the trustees of the village- of Fayetteville. Article 5 of the village law (Laws 1897, c. 414) defines a street as including a highway or road which the public have a right to use, and it gives to the board of trustees of the village the exclusive control and supervision thereof. It also continues their supervision and control over such bridges as were controlled by them at the time of the enactment of the village law, but provides that in every other case public

But it seems to me that in fairness and justice to both parties, and as an orderly course of procedure, two methods were open to the village. It might, at its own expense, or possibly at the expense of the abutting property owners, acting pursuant to a proper resolution, and with no notice whatever, have lowered Genesee street, provided that when the work was completed the highway was left in substan

Judgment accordingly.