In re Union Elevated Railroad — 22 N.Y. St. Rep. 792

Majority

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In the Matter of the Petition of the Union Elevated Railroad Company of Brooklyn, etc.^[1]

(Court of Appeals,

Filed April 16, 1889.)

Headnote

1. Eminent domain — Elevated bailboads ■—Poiveb to take lands in invittoi the owner—Laws 1875, chap. 606, §§ 17, 26—Rapid transit act.

A corporation organized under the rapid transit act (Laws 1875, chap.

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606), has power by virtue of §§ 17, 26, which provide, § 17, that such corporation may acquire and hold such real 'estate “ as may be necessary to enable it to construct, maintain and operate its railway or railways,” and section 26 further providing “to cross, intersect, join and unite its railroad with any other railroad before constructed, at any point in its route * * * with the necessary turnouts, sidings and switches and other conveniences in furtherance of the objects of its connections," to take' in , imitum such real estate as may be required to effect a connection by means of a curve between two of its routes crossing each other at right angles.

2. Same—Strict construction of power.

Where the law of eminent domain is appealed to by a corporation in its endeavor to acquire lands for railroad purposes, in imitum the owner, a strict construction will be given to the chartered powers.

3. Same—When aid of court refused.

Unless the proposed taking of lands by the law of eminent domain is justified by a purpose or an end prescribed or clearly contemplated by the franchise conferred upon a corporation by its charter or. the general law, courts should refuse them aid.

4. Same—Board of directors—Approval of court.

The power which the legislature has delegated to a corporation to exercise the right to re-take, upon making just compensation, private property for corporate purposes, vests in the discretion of the board of directors, and when sought to be exercised, the approval of the supreme court must he given, with proper guarantees of a hearing to the parties to be affected, and if the charter authorized the proposed taking, and the action of the directors be free from the influence of dishonest motives, the court cannot interfere with the exercise of the power.

5. Same—When conclusion op court not disturbed.

Where the supreme court has granted the application, and the power to take the lands clearly exists in the charter and general law, and the purpose stated is within the contemplation of the legislative act, the conclusion of the court, when reached after due proceedings, • will not be disturbed.

Appeal from an order of the supreme court, general term, second department, affirming an order of the special term Kings county, appointing commissioners to ascertain and determine the compensation to be paid to the owners of real'estate in the city of Brooklyn, required for the uses and purposes of the Union Elevated Bailroad Company.

Jesse Johnson, for app’lts; George W. Wingate, for resp’ts.

—This proceeding was instituted to acquire certain real estate alleged to be needed by the petitioner for the purposes of the operation of its railroad. It was opposed, on various grounds, the only one of which we will, consider being the defendant’s objection that the petitioner has no need for the land, within the purposes of its charter, and has no right to take it in invitmn, within the powers conferred by its charter,.or the provisions of chapter 606 of the Laws of 1875, commonly known as the rapid transit act.

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It was adjudged by the supreme court, at special term, that the petitioner requires the real estate in question in order to build two tracks on a curve over it, “for the purpose of connecting its railroad on Hudson avenue with its railroad on Myrtle avenue, for the purpose of operating the portions of such railroads, so to be connected together, by running trains over and from one such railroad on to' the other and operating trains over such railroads and such tracks, across said property, as over a continuous road, and for a depot and stairs to be used in connection with such curve.” It was also adjudged that the petitioner needs the property in question “ for those purposes, for the purpose of its incorporation.”

The court upon the trial also found that the acquisition of the land was “dictated by the desire to make the junction between the two roads;” and that “for the junction of these two roads,” the petitioner “requires this land, so it can run trains from one to another.” The sole question for us to consider, therefore, is whether lands can be condemned for railway purposes, under the provisions of the act, where the purpose avowed or proved is to effect a junction between two routes located by the commissioners and operated by the same company. The appellant insists that the right cannot be derived-from the act or the charter, and that to concede its existence is, in effect, to allow the petitioner to make a new route, which was not laid down and is not necessary for either railroad. He argues that the act does not,[1] in any event, apply to a connection between railroads belonging to a single corporation. The petitioner was organized under the rapid transit act, and among the routes upon which it was authorized to construct and operate an elevated railroad was one upon Myrtle avenue and one upon Hudson avenue, in the city of Brooklyn. It has obtained the consent of the local authorities, and has, by due and appropriate legal proceedings, obtained the order of the general term of the supreme court, required to' be had in lieu of the consents of the non-assenting property owners. The two routes cross each other at the junction of the two avenues named, and are distinct lines of railway.

An obvious, if not a conceded, purpose of making the connection between them by this proposed curve, is to enable Hudson avenue trains to run upon the Myrtle avenue route, and thus connect the two lines and with the New York and Brooklyn bridge. With the ultimate and real purpose the court need not concern itself, provided it be one which is not forbidden by law, and is one which, within the spirit and letter of the act and charter, conduces to a better operation of the railroad and to the public

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weal. We have repeatedly held in such proceedings, where the law of eminent domain is appealed to by a corporation in its endeavor to acquire lands for railroad purposes in in■vitum the owner, that a strict rather than a liberal construction will be given to the chartered powers.

Such a rule of construction, manifestly, is the proper one always to be followed, where the property of a citizen is sought to be taken against his consent. The right to take it can be derived only from the state by legislative grant. It does not exist otherwise, and, because in derogation of the ordinary rights of private ownership of property, the grant of property will be construed most strictly against the grantee. Although the petitioner was organized for a quasi public purpose, its organization was, of course, due to motives of individual interest and gain, and the courts would fail in their duty if they did not scrutinize closely every corporate act which invades the private rights of a citizen, and which is sought to be sustained or defended upon the theory of the delegation to the corporation of the right of eminent domain. Much has been said upon this subject of the exercise of the right of eminent domain by private corporations, and it is not necessary to dwell upon it here at any length.

The right resides in the state at any time to resume the possession of private property for public uses upon just compensation being made. What it can thus do directly, it may, in the furtherance of a public purpose, delegate the right to do to a corporation which has been created to subserve some public convenience or necessity, and thus becomes invested with a quasi public character. Unless the pi’oposed taking of lands, by the law of eminent domain, is justified by a purpose or an end, permitted or clearly contemplated by the franchise conferred upon a corporation by its charter, or the general law, the courts should refuse their aid. The powers of the corporation must be deemed to extend, however, to the accomplishment of legitimate corporate ends and to whatever may be found to be within the scope of the legislative grant. The purpose in creating a railroad corporation must be deemed to be of a public nature, and the public is interested in its full and fair accomplishment. If a proposed corporate act is in furtherance of the public convenience and can fairly find a sanction in the charter, it should be upheld. Individual interests must be subservient so far to the public as to give way before an evident public requirement.

A railroad corporation, though private in the sense that it is managed and operated by private individuals, has that much of a public character, that it is necessary to consider it as an engine capable of the promotion of the public wel

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fare and convenience, as it may be of public injury. It is made subject to the reserved right of supervision by the .legislature, who may, where the public good is menaced, .suspend the corporate life and control corporate action, within constitutional limitations, as to the sanctity of property and contract rights. • The power, which it has delegated to the corporation, to exercise the right to retake, upon making just, compensation, private property for corporate purposes, in the nature of things vests in the discretion of the board of directors.* When sought to be exercised, the law has required the approval of the supreme court to be given, with proper guarantees of a hearing to the parties to be affected. It is for the supreme court to investigate the facts, upon which the corporation claims the right to take private property against its owner’s will, and thereupon to decide whether sufficient cause exists. If the charter seems to authorize the proposed taking and the action of the directors seems to be free from the influence of unworthy or dishonest motives, I do not see why the courts should interfere with the exercise of their discretion. Granted the power and no suspicions of the honesty of corporate intentions being possible upon the proofs, the court cannot interfere with the exercise of the power. The only limit to its exercise would seem to be the reasonable neces-. sity of the corporation in the discharge of its duty to the public.

So it has been held by the courts in cases where land is sought to be acquired in invitum by railroad corporations organized under the general railroad acts and the reasoning* in such cases is applicable to cases arising under the rapid transit, act. '

In N. Y. and H. R. R. Co. v. Kip ( 46 N. Y., 547 ), Allen, J,, delivering the opinion of the court, thus expressed himself: “ the public have an interest in the use of a railroad, and in the proper performance of every power within the franchise conferred upon a railroad corporation, and hence every facility needed by such corporation is for public purposes, and whatever is required to enable the corporation to perform its duty to the public is within the principle which permits a delegation of power to it.”

The rapid transit act, under which the present railroad company was organized, was passed as a public measure and to supply a supposed existing need in the counties of the state for steam railways, for the transportation of passengers, mails or freight. So much is indicated from the title and opening section of the act. Every corporation formed under it has the right to acquire and hold such real estate “ as may be necessary to enable it to construct, maintain and operate its railway or railways,” and where

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it cannot agree with the owner, it may institute the condemnation proceedings, which are prescribed in the act. It is there provided that the first move in the proceedings shall be to bryag the matter before the supreme court, in the particular judicial district, upon the petition of the company, with proof of service of a copy of it upon the parties to be affected. They are thus given the opportunity of showing cause against the granting of the petition and of disproving the statements and allegations of the petitioner. The court must hear all the proofs and allegations, and, if no sufficient cause is shown against granting the petition, the court is required to appoint commissioners to appraise the compensation to be paid.

Where the party affected by the proceedings and who deems himself aggrieved by the granting of the application, comes, by the way of appeal, to this court, I think that our review of the proceedings below should be confined to those questions which relate to their validity and legality. Where the supreme court has granted such an application and we find the power to take lands for the corporate purposes clearly exists in the charter and general law, and that the purpose stated is one within the contemplation of the legislative act, I do not think we should interfere with the conclusions of the supreme court, if reached after due proceedings as prescribed. There seems to be an obvious propriety in confining our review to the questions of law, which may arise, and in our not interfering with the determination of the supreme court as to the needs of the company for the land.

I see no legal ground upon which this appeal can be sustained. We have the adjudication of fact in the court below before us, to which I have heretofore referred; and reference to the charter and to the Eapid transit act fails to reveal anything in their provisions which might be considered such a limitation upon their scope as to stamp the .purpose avowed here as illegal. By section 26 of the act, every corporation formed under it is empowered ‘[1] to cross, intersect, join and unite its railroad with any other railroad before constructed, at any point on its route; * * * with the necessary turnouts, sidings and switches and other conveniences in furtherance of the objects of its connections.” With such a general authorization, can we say that it does not apply to a connection between two independent routes of the same corporation % I think clearly such a construction is unreasonable.

Turning to the charter itself, I think, by language more or less direct, authority is given to construct curves to form connections between lines of railroad tracks, whether the purpose be simply for constructing continuous and con

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■nected lines of railway, or whether it be simply for the convenience of the travelling public. The commission, in laying out routes, had in view a provision for a general system of railroad routes, and located ten separate routes in Brooklyn, which intersected each other at various points. The petitioner’s articles of association embodied the resolutions of the commission, which accompanied their location of rapid transit routes. One of these resolutions provides that the location of the routes designated includes “the right to ■construct, use and operate in connection therewith, the usual and necessary * * * curves, switches and platforms and other appurtenances incidental to the * * * ■operation and maintenance of elevated railroads.”

By the forty-ninth clause of the general plan or specifications, decided upon by the commission and forming part of the articles, “authority is given for the construction of ■such turnouts, switches, supports, sidings, necessary third track, connections, landing places, stations, buildings, platforms, stairways, etc., together with all other necessary ■requisites as will conduce to the comfort, safety and convenience of the travelling public.”

With such provisions, intended to operate upon all corporations organized by the commission under the rapid transit act, where is there to be found any limitation upon the power of a company to connect its line of tracks with another distinct fine, whether operated by itself or by ■another company, if such a connection is found to conduce •to the public welfare or convenience, or simply to the more effectual maintenance and operation of the railroad ?

The power given by section 17 of the rapid transit act, to •a corporation to acquire, in invitum, such real estate as may be necessary to enable it “to operate its railway or railways,” involves the idea of an ownership by it of more than one fine of railway, and that section, with the twenty-sixth section, which permits the junction of two railroads, comprehend a power to take such real estate as may be required to effect the connection between them.

The connection being desired and the application to condemn lands, for the purpose of making it, after a due hearing of the parties by the supreme court, being found to be warranted, I think the individual interests must yield to the coporate requirements, in the furtherance of the public interests, as well as in pursuance of the legislative grant.

In the Kip Case (46 N. Y., at p. 552), Judge Allen said, in considering the provision of the general railroad act, as amended in 1869, which authorizes a railroad company to take any real estate which it may require “for the purposes of its incorporation or for the purpose of running or

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operating its road:” “ the language of the act is very general and comprehensive. If lands are required for any of the purposes of the incorporation, or for the purpose of operating and running the road, that is in the proper enjoyment and exercise of the franchise conferred, and in the performance of the service to the public assumed by it, they may be taken in invitum.” Such language is appropriate in the present case.

I have carefully considered all the points in the brief of the appellant’s counsel, but none convince me that we can, or should, interfere with the determination of the supreme court, which, at special and general term, has approved of the petitioner’s application.

The order should be affirmed, with costs.

All concur.