In re Union Elevated Railway — 22 N.Y. St. Rep. 842

Majority

p. 842

In re Petition of Union Elevated Railway, Resp’t, Relative to Acquiring Title of Land of J. Levy et al, Appl’ts.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

Eminent domain—Railroad crossing—When land taken for purpose of curve—Laws 1875, chap. 606, § 17.

Under section 17 of the Rapid Transit Act (Laws 1875, chap. 606, §17), which gives to railway companies formed thereunder “the right to acquire and hold such real estate or interest therein as may be necessary to enable them to construct, maintain and operate the said railway, or railways,” where a company has two routes which cross each other at right angles and it is decided to turn the trains of one into the other route, to avoid the danger of a collision, it may acquire corner property for the purpose of constructing a curve when necessary.

Appeal from an order of the special term appointing commissioners- to appraise land of the appellants in a proceeding for its condemnation.

The petitioner has two routes which cross each other at right angles, one running through Hudson avenue and the other thrbugh Myrtle avenue. To avoid the danger of a collision the company decided to turn its Hudson avenue trains into Myrtle .avenue. This necessitates the taking of corner property belonging to Levy arid others for the construction of a curve.- The Rapid Transit Act, under which the company was formed (Laws 1875, chap. 606, § 17), gives to such corporations “the right to acquire and hold such real estate or interest therein as may be necessary to

p. 843

enable them to construct, maintain and operate the said railway, or railways.”

Jesse Johnson, for app’lts; Wingate & Cullen, for resp’t.

—The seventeenth section of the act gives the right to acquire such real estate, etc., as is necessary to * *' * operate said railways. The grant was comprehensive and covers the whole ground of controversy. Experience has shown that to carry on the operation of the road in the restricted manner first attempted will expose the public to great danger.

Were the charter a narrow one, the court might well feel itself called upon to be astute in construing the charter in aid of the public welfare.

No such necessity is imposed upon it. The charter is amply broad to convey the power to erect all needed appurtenances.

As was well said by the judge at special term, to hold that this road could compel a connection with the roads of other corporations, and was yet without the power to connect its own branches, would be an absurity.

Order affirmed, with costs.

All concur.