In re Cross-Town Street Railway Co.

The petitioner,The Cross-Town Street Bail-way Company, of Buffalo, was organized under chap. 252 of the

In the month of Jandary, 1892, this corporation applied to the general term, at Buffalo, for the appointment of commissioners to determine whether the railroad in Prospect avenue, as originally projected, should be constructed. It was then alleged, on the part of the petitioner, that, after proper efforts made in that behalf, it had been unable to secure the requisite number of consents of the property owners to enable it to proceed with the work. That application was opposed, and, by consent, the hearing was adjourned until the June term, 1892, at which time the company abandoned its application so made in the preceding January. The limitation prescribed by the statute, chap. 281 of the Laws of 1889, and § 93 of chap. 565 of the Laws of 1890, for procuring the consent of property owners, or the appointment of commissioners by the general term of the supreme court, was two years from the time of obtaining the consent of the municipal authorities of the city of Buffalo for the construction of such railway. But by contract entered into with the city of Buffalo, January 1, 1892, which was subsequently ratified and confirmed' by the legislature, chap. 151, Laws of 1892, the time in which to build the petitioner’s road in Prospect avenue was extended until the 6th day of February, 1896.

The petition before us shows that diligent efforts have been made by this corporation to obtain the consents of the property owners along that portion of the proposed route in Prospect avenue lying between Huron street and California street; but that such efforts have been unavailing, and that it has not and cannot procure the consents of a majority of one-half of the value of the property owners whose property bounded the proposed route, tinder this state of facts, it is contended by the learned counsel for the petitioner that this court has no discretion in the premises, but, upon being satisfied that the company, after diligent effort, has been unable to procure the requisite number of consents, is required to appoint three commissioners who shall inquire into the matter and report upon the same. The language of the statute is: “If the consent of the property owners required by any provision of this article cannot be obtained, the corporation failing to obtain such consents, may apply to any general term of the supreme court, held in the department in which it is proposed to construct its road, for the appointment of three commissioners to determine whether such railroad ought to be constructed and operated.” Thence follow provisions for giving notice to property

But it seems to us that the petitioner’s application ought not. to be granted for the reason that it has failed to show, for the purposes of this motion, that it has made an effort to and has failed to obtain the requisite consents of the property owners along Prospect avenue from Huron street to Pennsylvania street. For aught that appears it has the requisite number of consents for the-construction of the road for its entire distance on this avenue. The consent of the city authorities of Buffalo has not been procured to any change of the petitioner’s route. We can not safely assume that such authorities would have given the consent to construct a surface railroad on this avenue only between Huron street- and Carolina street. Furthermore, there is nothing in the papers-to show that the company has abandoned any part of its right along Prospect avenue, but that, for aught that appears, at the-next term of court it may apply for the appointment of commissioners to determine whether a road shall be constructed for two-certain other blocks on this route, and so on until the entire distance is covered through the determination of the commissioners, The statute evidently did not contemplate a dividing up of a street in this manner. • The case of Matter of People's R. R. Co., 112 N.Y., 578 ; 21 St. Rep., 496 , is not in any respect an authority for the contention here made in behalf of the petitioner, for that case merely holds that a surface railroad company, which has had the consent of the city authorities to build its railway through several streets of a city, is not obliged in its application to the court to ask for the appointment of commissioners for the building of a railway throughout all of such streets.

Counsel lays stress upon the expression in § 91 of chap. 676 of the Laws of 1892, which is as follows : “ Such railroad shall not be built, extended or operated, unless the consent in writing,, acknowledged as are deeds entitled.to be recorded, of the owners of one-half in value of the property bounded on, and also the-

The expression, “ and also the consent of the local authorities having control of that portion of the street or highway upon which it is proposed to build or operate such railroad,” does not, as it seems quite clear to us, afford any warrant of authority to a surface railroad company thus to divide up its line or route which has been projected through the whole or part of a particular street and which project has received the consent of the municipal authorities.

It follows that the application should be denied.

Petitioner’s application for the appointment of three commissioners denied.

Dwight, P. J., Lewis and Haight, JJ., concur.