Hyperlawhypertext legal database Brooklyn Elevated Railroad v. Nagel 59 N.Y. St. Rep. 161

← Cases

Brooklyn Elevated Railroad v. Nagel

59 N.Y. St. Rep. 161 Court N.Y. Gen. Term Decision date 1894-02-12 English

Delivered by Cullen, J.

Contents

Majority

p. 161
In the Matter of the Brooklyn Elevated Railroad Company, Resp’t, v. John S. Nagel et al., App’lts.
(Supreme Court, General Term, Second Department,
Filed February 12, 1894.)

Headnote

1. Condemnation proceedings—Several parcels.
The petitioner, in condemnation proceedings, may include many pieces of land, the property of different owners.
3. Same—Description.
In such proceeding, the petition sufficiently describes the easements as those “which now are or may be the subject of injury from a construction of said railroad or incidental to its use.” '
Appeal from an order condemning an easement appurtenant to the premises of the appellants.
Mirábeau L. Towns, {Raphael J. Moses, of counsel,) for app’lts; Hoadly, Lauterbaeh & Johnson, (Wm. Nl Cohen, of counsel,) for resp’t.

This is an appeal from an order made at special term condemning the easement appurtenant to defendant's premises, invaded or taken by the construction and operation of petitioner’s elevated railroad. An answer was interposed, testimony taken, and thereafter the application granted. Many objections are made to granting the application, some of which only it is necessary to notice. In re Union El. R. R. Co. of Brooklyn, 112 N. Y. 61 ; 20 St. Rep. 498 , is conclusive as to the validity of the franchise of the lessor of the petitioner" to build and maintain its road. The power of the lessor company to lease its road is settled by authority. Woodruff v. Erie Railroad Co., 93 N. Y. 616 ; Beveridge v. N. Y. El. Railroad Co., 112 N. Y. 1 ; 20 St. Rep. 962 . As to the practice, it has been the common custom, since the general railroad act of 1850, for the petitioner in condemnation proceedings to include many pieces of land, the properties of different owners. The practice has many advantages,—the presentation of all objections at the same time, the appointment of a single set of commissioners to act in the whole class*of cases. The practice has been so common that it should not be condemned unless there is some substantial objection to it. Any party can file

p. 162
his answer, and, as to such party, it is from that time, in substance a separate action. If it be irregular to join the lands, of different owners in a single petition, it is within the power of the court to sever the cases, and the entry of an order or judgment in a particular case, in fact, a severance. The objection to the description in the petition of the easements sought to be acquired is not well taken. We do not see how they could be well described other than they are described, “ which now are or may be the subject of injury from a construction of said railroad or incidental to its use."

The last objection is as to the structure and the location of the tracks thereon. If there were any dispute of the facts on this question, some of the rulings of the court on the trial would be questionable; but there is no dispute. Plainly the tracks are not as close together, and therefore as far distant from the house lines, as is physically possible. The requirement as to this subject by the commissioners is “ the track or tracks shall be laid as far from the house line as the'method of construction will permit." This left a reasonable discretion in the company as to the location of the tracks. The method adopted doubtless did enable the company to use lighter transverse girders than had the tracks been placed in the center of the street. But this was the method of construction adopted by the company, and we think within its power. Had the commissioners intended -to prescribe the rule that the tracks should be contigous, with space between simply for cars to pass, we think that it would have been so stated. The order appealed from should be affirmed, with costs.

All concur.

Cases cited