In re New York, Lackawanna & Western R. R. — 7 N.Y. St. Rep. 649

Majority

p. 649

Matter of the Application of the New York, Lackawanna and Western R. R. Company, to Acquire a Crossing of the New York, Lake Erie and Western R. R. Company over their Railroad in the town of Chemung.

(Supreme Court. General Term., Fourth Department,

Filed April, 1887.)

Headnote

Practice—Appeal from part of an order.

The report of certain railroad commissioners, and the order founded thereon prescribing the terms and conditions of the crossing in question, gave benefits to the Lackawanna R. R. Company and provided adequate and necessary protection for the Erie R. R. Company. Held, it could not be appealed fioin in fragments, so that if the appeal were successful the benefits might be retained and the protection be withdrawn.

J. McGuire, for pl’ff; D. C. Robinson, for def’t.

In 1881, the Lackawanna Company instituted 'proceedings to acquire a crossing over the Erie Railroad at Chemung. Commissioners were duly appointed, a great mass of testimony was taken and a report made, fixing and determining the mode and place of such crossing. As a part of the terms and conditions of granting such crossing the Lackawanna Company were required to construct certain bridging on its route to the west of Chemung river at a considerable distance from the place of said crossing and from the Erie Railroad. Such provisions were made for the purpose of providing sufficient water ways for the Chemung river, so as to avoid injury or destruction to the embankments, tracks and road bed of the Erie Railroad. Such report was filed on the 31st day of October, 1881, and on the 9th day of November, 1881, on motion of the Lackawanna Railroad Company, the report and decision of the commissioners was duly in all things confirmed and the order entered. The Erie Company appealed from said order of confirmation to the general term

p. 650

of the supreme court, the appeal was brought to a hearing and in May, 1882, the report and order of confirmation was affirmed and the order duly entered and notice of such entry given by the Lackawanna Company to the Erie Company, the former company soon after paying to the latter the compensation directed to be paid by the report and order. On a further appeal to the court of appeals by the Erie Company, the report and order were affirmed or the appeal dismissed.

Meanwhile the Lackawanna built its road across the Chemung river and over the Erie Railroad, and was running its road but neglected to do the bridging required by said report and order. Thereupon the Erie Railroad Company in September, 1884, commenced an action in equity in the supreme court, which is now pending, against the Lackawanna Company, to compel it to perform the terms and conditions of said report and order relating to bridging and water ways for the protection of the Erie Company’s roadway.

In October thereafter the Lackawanna Company took this appeal from those portions of said report and order so made and confirmed at its instance and on its motion and so sought to be enforced by the Erie Company as aforesaid.

A motion is now made by the Erie Company to dismiss said appeal on several grounds, which will be discussed so far as may be necessary in deciding this motion.

We are not disposed to pass upon the right of the Lackawanna Company to appeal from the report and order more than twenty days after the order of confirmation was made, and as seems to be required by section 18, chap. 140, Laws of 1850, but we very much doubt whether an appeal will lie from an order entered upon the party’s own motion and for its own benefit. Especially does that seem unreasonable, when the appellant avails itself of such order and has built its road and is running its trains by its authority.

We are inclined to think such an appeal will not and ought not to lie.

But there is a stronger reason why this appeal should not stand. The report and order prescribing the terms and conditions of the crossing constitute a complete disposition of the whole controversy, giving benefits to the Lackawanna, which they are enjoying, and providing adequate and necessary protection for the Erie. It ought not to be possible that such a report can be appealed from in fragments, so that the benefits may be retained and the protection be withdrawn. Each part of the report is dependent upon the other parts, and the report of the commissioners would be very different if a part only is allowed to stand. As well take away the keystone of an arch, when the whole

p. 651

structure must fall. Nor is it possible that justice would permit the reversal of the parts of the order appealed from, leaving the others to stand.

Again, the order as a whole is res adjudícala in this court. The same questions have been argued and decided. In hostility to the Erie and at the solicitation of the Lackawanna, we have held the report and order to be just and proper. It is true the power of the commissioners to make certain conditions was not directly passed upon, but we have no doubt of its existence. Matter of Lockport and Buffalo R. R. Co., 19 Hun, 38 . Such power seems to be a necessary incident to the duty of providing for a crossing. However, if the question is not res adjudícala in this court, and if the commissioners had no power or authority to make the requirements inserted in their report and confirmed by the order, the Lackawanna Company can make such objection by answer and upon trial in the action for a specific performance.

We think the appeal should be dismissed, with costs.

Hardin, J.. concurs; Follett, J., not acting.