
    In the Matter of the Application of The Board of Rapid Transit Railroad Commissioners for the appointment of Commissioners.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 7, 1892.)
    
    1. Railroads—Rapid transit—Consent op property owners.
    It is not necessary that the plans prepared by the commissioners under the Rapid Transit act of 1891 should he presented to a property owner before a valid application for his consent can be made. It is sufficient if public notice of the adoption of such plan has been given, and the property owner could, by going to the proper office, examine it and the maps illustrating it.
    2. Same—Consent of common council.
    The court will not presume that the common council did not vote by ayes and noes, for tUte purpose of invalidating its action.
    3. Same—Plan of construction.
    The plan of construction provided for by § 4 of the act is sufficient if it shows the general mode of operation, and contains such details as_ may be necessary to show the extent of encroachment upon the street; it is not necessary that it state the precise amount of encroachment or the precise locality where such encroachment may be increased by the erection of structures necessary for the operation of the road.
    4. Same—Material.
    A statement in the report or plan that the viaducts are to he of masonry or iron, or both, is sufficient.
    5. Same—Encroachments—Ungraded streets.
    Where a portion of the route passes through ungraded streets it is not. necessary that the report should state whether in such portions the road will be in a tunnel, depressed structure or viaduct, as this will depend, upon the grade to he subsequently fixed.
    6. Same—Stations.
    It is not necessary in the general plan to locate the stations of the road,
    7. Same—Motive power.
    A statement that the cars will he moved by motors having a specified power, such power being supplied by some method not requiring combustion within the tunnels, gives sufficient information as to the general mode of operation.
    8. Same—Construction.
    A statement that below a certain point the construction should he made by underground tunnelling without disturbing the streets, except in cases of necessity, and that all excavations above that point might be made from the surface, is a sufficient compliance with the statute.
    Motion of the rapid transit commissioners for the appointment, of commissioners.
    
      J. M. Bowers, for the motion; F. M. Scott, Wheeler H. PecTchamr W. II. Arnoux, J. A. Peering and others, opposed.
   Van Brunt, P. J.

The board of rapid transit railroad commissioners in and for the city of ¡New York, appointed pursuant to the provisions of the laws of 1891, having made their report to the common council of the city of ¡New York, and such report having been adopted by said common council, and having made application for consent to the owners of property abutting upon the proposed routes referred to in said report, and said consent having been refused, make this application to this general term of the supreme court for the appointment of three commissioners, who should determine after public hearing of all parties interested whether such railroad ought to be constructed and operated, and report such determination with the evidence taken by them to said general term.

Various objections are urged by several counsel who appeared to oppose this application, the most of which are based upon the claim that the general plan of construction adopted by the board of rapid transit commissioners, and which is the basis of the present application, is radically and fatally defective, in that it does not show as to a large part of the contemplated route whether the railroad is to be underground road, an elevated road or a depressed road; and that it does not show the manner of construction of so much of the proposed railroad as is to be constructed on a viaduct, or in a depressed structure, or in a tunnel; and that it does not show the extent to which the streets, avenues and public places in which the said railroad is to be located are to be encroached upon, and that it does not show the mode of operation ; and that therefore it does not furnish the materials necessary for the formation of an intelligent opinion as to the efficiency of the proposed railroad.

It was also urged by some of the counsel that no proper application was made to the property owners for their consents, because the plans of construction were not presented to each property holder before he was asked to give his consent.

The latter proposition, it seems to us, has no merit, in that it never could have been within the contemplation of the legislature that every property holder should have presented to him maps and reports and statements, showing all that the rapid transit commissioners had concluded upon, before any valid application for his consent to the projected plan could be made. It seems to us clear that it was sufficient if the commissioners had adopted such a plan, and had given public notice of such adoption,, and if the property owner could, by going to the proper office, examine the plan which had been adopted and the maps illustrating the same.

It was suggested upon the argument that no definite place was fixed where the property owner‘might see these plans. But it is evident from the public notices which were given both by the commissioners and the common council in reference to their proposed action upon these plans, that there would have been no difficulty in any property owner having access to the same if he desired to do so. In fact, we find no property owner who has shown that he has been unable to see the report and plans because of their inaccessibility.

It has also been urged that the rapid transit act provides that the adoption by the common council of a resolution approving the plans and conclusions of the rapid transit commissioners, and consenting to the construction of the railway or railways in accordance therewith, shall be by a vote taken therein by ayes and noes; and that in the report which gives the proceedings of the common council it does not appear that the ayes and noes were taken on the vote. It does appear that twenty-two members of the common council voted in favor thereof, and it does not appear the vote was not taken by ayes and noes; and this court cannot assume a fact for the purpose of invalidating the action of the common council.

This brings us to the consideration of the main question which was raised upon the argument of this application, namely, that the general plan of construction adopted by the board of rapid transit commissioners, and which is the basis of the present application, is radically and fatally defective.

In the consideration of this question it is necessary to bear in mind some of the differences which exist between the rapid transit act of 1875 and the rapid transit act of 1891.

It is urged by the counsel for the objectors that the rapid transit act of 1891 requires more minuteness and greater detail in the description of the location and manner of construction of the railroad than was provided for in the act of 1875.

This view, it seems to us, is not borne out by a consideration of the respective provisions of the two acts so far as they relate to the question under discussion.

The rapid transit act of 1875 in § 5 provides as follows:

“ The said commissioners having by such public notice as they may deem most proper and effective, under such conditions and with such inducements as to them may seem most expedient, invited the submission of plans for the construction and operation of such railway or railways, the said commissioners shall meet at a place and upon a day in such notice named, not more than ninety days after their organization, and decide upon a plan, or plans, for the construction of such railway, or railways, with the necessary supports, turnouts, switches, sidings, connections, landing places, stations, buildings, platforms, stairways, elevators, telegraph and signal devices, or other requisite appliances upon the route, or routes, and in the locations determined by them.”

This language has been considered by the courts; and it has been determined within certain limits as to what were essentials or non-essentials in order that a proposed plan for the construction of a railway shall be held to be either obnoxious to, or sufficiently accordant with, this provision.

In the matter of the New York Cable Co. v. The Mayor, 104 N. 1; 4 St. Rep., 308, Judge Eapallo examined the question above suggested and laid down some general rules which were to govern in the consideration of such a question; but how far these rules were concurred in by the court in the disposition of the case seems to be somewhat problematical.

Various questions were presented attacking the organization of the petitioner in the case cited, and J udge Eapallo said: “To begin at the foundation, I think it incontestable that they (referring to the commissioners) must decide whether the contemplated road was to be an underground road, an elevated road, or, if I am right in my construction of the act, a surface road. To leave either of these questions undetermined and relegate it to the discretion of the directors of the company to be formed would, in my j udgment, be a departure from the act and a failure to comply with one of the conditions precedent to the acquisition of corporate power. How far further it is essential for the purpose of securing a valid organization that the commissioners should decide upon plans of construction, it is difficult to determine. It would be very inconvenient, to say the least, to require that the details of the construction should be prescribed with the minuteness of the usual speciffcations in a building contract. There undoubtedly is a line somewhere dividing the essential from the non-essential; but we are not put to the necessity of searching for it in the present case. It is sufficient for its purposes to hold that, as far as reasonably practicable, the plans adopted by the commissioners should disclose to what extent the streets are to be encroached upon and the property abutting thereon affected, and the means of transportation to be used, so that the local authorities and the property owners when applied to for their consents, or the commissioners appointed by the supreme court with authority to consent in their behalf, may have the necessary materials to form an intelligent judgment whether the scheme proposed should or should not be assented to.” (And it is this language of the learned judge which was imported into the act of 1891.) The learned judge then formulated various propositions as his conclusions ; and the fifth was to the effect that “ the commissioners have failed to substantially comply with the requirements of § 5 of the act to decide upon a plan for the construction of the railways and other appliances specified in that section, and that such compliance was essential to their valid organization;” in which all the court concurred. And we are informed by Judge Finch in the Matter of the Kings Co. Elevated Railroad Co., 112 N. Y., 47; 20 St. Rgep., 336, that their conclusion that the action of the commissioners was not a substantial compliance with the requirements of said section of the rapid transit act rested upon at least two omissions of the most important and vital character; one, that it was left undetermined for seventeen miles of the routes authorized whether the construction should be a surface or an elevated road; and the other, that the number of tracks was left unlimited, so that the whole width of the roadway might be occupied by them and in some streets even a third row of columns might be erected; the court holding that these facts alone established that no definite plan was dictated by the commissioners, but the choice of a plan was substantially left to the corporators. And in the latter case it was distinctly enunciated that it was not the intention of the court to decide in the Cable case that § 5 of the rapid transit act required the location of the stations and stairways. And the fact was pointed out that if the section compelled the location of stations and stairways, it equally compelled that of every column or necessary support, of every turnout or siding, of every connection, of every landing place or platform, and of every telegraph or signal device. And the conclusion of the court seems to have been that a plan of construction which entered into such details as to the manner of construction as might be necessary to show in a general way the extent to which any .street, avenue or public place was to be encroached upon, and the property abutting thereon affected, was a sufficient compliance with the act.

Now the act of 1891 has embodied this conclusion within its provisions, and has expressly eliminated from the preliminary plans the provisions of the act of 1875 respecting supports, turnouts, switches, landing places, etc.; leaving those details to be filled in after it has been finally determined by the appropriate authorities that an attempt to carry out the plan shall be made. The provisions of § 4 of the act of 1891 are that jf said board shall determine that a rapid transit railway or railways in addition to any already existing are necessary for the interest of the public and such city, it shall proceed to determine and establish the route or routes thereof and the general plan of construction; and that such general plan shall show the general mode of operation, and contain such details as to the manner of construction as may be necessary to show the extent to which any street, avenue or other public place is to be encroached upon and the property abutting thereon affected.

Now can it be for one moment held that this general language requires greater or more particular specification of details than the language of § 5 of the act of 1875, which provides for a plan or plans for the construction of such railway or railways with the necessary supports, turnouts, switches, etc.?

It seems to us to be apparent that under the act of 1891 the plan was to be a general one, and that there should be no dispute upon that point. In fact, the language is “ a general plan of construction.” Such plan was required to show the general mode of operation and to contain such details as to the manner of construction as might be necessary to show the extent of encroachment upon any street or avenue. It certainly could not have been intended by the use of this language to compel the commissioners by these plans to state with absolute accuracy the precise amount of encroachment, or the precise locality where such encroachment might or might not be increased by the erection of structures necessary for the operation of the railroad.

The plan was to be a general one, not a plan in detail. The detail plan was provided for by the sixth section of the act, where specifications are spoken of in reference to the construction of this railroad.

It would therefore appear that the plan of construction referred to in the fourth section was necessarily general in its character, but must be so prepared as to give the owners of abutting property notice of the general character of the encroachments which were to be made upon their property. And that is what was decided in the case of the Kings County Elevated Railway Company, above cited; and if such a general statement was sufficient under the statute of 1875, it must certainly be a compliance with the statute of 1891.

It is urged upon the part of the objectors that the commissioners have not definitely fixed the character of the construction. It is said that they have laid out two routes which they have described with minute particularity, one running on the west side of the city, and one on the east side. They both cross the Harlem river, and extend to the city line, running in that part of the city north of that river, as well as in the older parts, chiefly through and along streets and avenues.

And as to all those portions of the proposed railways thus projected north of the Harlem river, comprising a considerable portion of the whole routes no further or other statement is made than that north of the Harlem river the construction shall be by viaduct, depressed structure and tunnel as the grades of the land upon the proposed routes shall require. And it is urged that it is manifest that this statement can convey no information to any property owner along either of the routes above the Harlem river; and that to foresee what kind of a road is to be placed in front of his property he must know not only the natural elevation of the ground, but the proposed elevation of the projected railroad, as to which the report gives him no information whatever; and that the profile drawings attached to the report do not in any way aid such investigation, and that no man owning property .along either of the proposed routes above the Harlem river can form an approximate guess, much less an intelligent opinion, as to whether the proposed railroad is to be constructed on a viaduct, in a depressed structure, or in a tunnel, or at what distance below or above the street surface, and hence as to his property the report does' not show the extent to which the streets, avenues or public places may be encroached upon, and the property abutting thereon affected. And objection is also raised as to the definiteness of the plan in reference to the character of the structure below the Harlem river.

It being impossible within the limits of this opinion to discuss in detail these various objections, we will confine ourselves to a general statement of what seems to be the answer thereto. The report and plans show distinctly upon the south side of the Harlem river as to what portion of the railroad is to be a viaduct, tunnel or depressed structure. The report also gives the general dimensions of the tunnel and its location, viz: that its depth below the surface shall be as near thereto as the present pipe lines will allow, and the width and height are fixed. As to that part which is to be upon a viaduct, the maps indicate the general character of the structure which it is proposed to erect in different locations.

The claim that the material of the viaduct is not definitely fixed, in that the report states that such viaduct was to be of masonry or iron,- or both, does not seem to be of any importance in view of the fact that in the Kings County Elevated Kailway case, combined construction of iron and stone was one of the essential features of the plan.

In respect to the indefiniteness of the general plans beyond the Harlem river, it is to be observed that the impossible is not required. It is sufficient if the plans adopted by the commissioners shall disclose as far as reasonably practicable to what extent the streets are to be.encroached upon, etc.

Now it appears by Chap. 545 of the Laws of 1890 that the grades of the streets and avenues beyond the Harlem river have not yet been fixed, and that they are not required to be fixed until within two years and six months from the 1st day of January, 1891, when the surface maps, plans and profiles of all the streets, roads, avenues, public squares and places located and laid out shall be filed.

It was evidently impossible for the commissioners to determine what should be the precise location in reference to the surface of the avenues and streets upon which the route of this railroad was located when no grade of the street had ever been fixed. They have done the best thing they could under the circumstances. They show by their profile maps the general contour of the ground as it now exists, and the relative location of the proposed route between high water mark and such surface.

What precise portions of this route should be in a tunnel, depressed structure or viaduct depends, entirely upon what grade shall be subsequently fixed for the street along which its route is located.

The further objection is urged that the precise height of the viaduct or depressed structure at each particular place is not shown.

It is evident, without the details of the engineer’s specification for the building of the railroad (which is not required in this general plan), that no such nicety of location can possibly be given. The report and accompanying maps afford every property owner t.he means of forming an opinion generally as to the extent to which this structure is to affect him.

In respect to the omission to locate the stations, it would seem that the views of the court in the Kings Co. Elevated case dispose of that question. It is undoubtedly true that by reason of the platforms between the tracks where stations are located, the encroachment will be greater than where such platforms do not exist. But that it was necessary for the commissioners to locate these stations seems to be negatived by the views of the court in the case cited.

As has been seen, the requirements of the plan under the act of 1875 in this respect were substantially the same as those of the act of 1891; and the court under the act of 1875 held that the location of stations by the commissioners as an element and detail of the plan might very properly in the interest of the public have been made and included, and the court, therefore, state that they cannot say that the omission was not a defect. But when they come to measure the importance of such omission, they expressly hold that it was not at all vital or even serious; because the property owners, when applied to for their consent, would understand that stations were requisite, and each would know that one might come in his own locality.. In the case at bar the plan was more definite and explicit in regard to the encroachment of the station than it was in the case cited. The extent to which the tracks will be spread is definitely fixed, and it appears that the stations are not to be located in the street,- but that access to the railway is to be gained through private property.

We next come to the question of the mode of operation; and it is claimed that the requirements of the commissioners in regard to the mode of operation are not sufficiently definite. The language of the act is that such general plan shall show the general mode of operation.

The language of the report is to the effect that the cars shall be moved by motors capable of a uniform speed for long distances of not less than forty miles per hour exclusive of stops, the power being supplied by some method not requiring combustion within the tunnel. This designation excludes the cable and the locomotive as now operated. It provides that the cars shall be propelled by motors within the tunnel. The' character of the power is not defined. That is left to be determined when the detailed plans are prepared.

This, it seems to us, gives to the property owner information as to the general mode of operation. If it went further it would be giving the particular mode of operation, and where the general only is required it is not necessary to descend to the particular.

Great stress is laid upon what is called the failure to show the manner of construction. The requirement of the act is that such general plan shall show the general mode of operation and contain such details as to the manner of construction as may be necessary to show the extent to which any street, etc., is to be encroached upon. It is claimed that this requirement has not' been complied with, and that the provisions of the report will not enable any property owner to form an intelligent judgment as to the effect likely to be produced upon his abutting property by the manner of construction of the railway. As has already been stated in respect to this language, it evidently was not the intention of the legislature that in this general plan all the details of construction, either as to manner, mode or method, should be included. It may be that the use of the word “ manner ’’ in this connection was unfortunate, in that there is but little difference noted by lexicographers between the words manner, mode and method

But it is manifest what the intention of the legislature was in the use of this phraseology; and that was, that the general plan should convey to the property owners along this route, in a general way, the manner in which this work of construction was to be carried on. It certainly.was not the intention of the legislature to require the commissioners to determine in this report as to how every foot of earth was to be removed, or every detail of the work of construction was to be carried out; but, as already stated, to convey in a general way to the owners of property along the line of this route information as to the manner in which this construction should be carried on, in order that they might appreciate to some extent the inconvenience which they might suffer under during the period of construction. And it. was evidently not the intention of the legislature that the plan in reference to the manner of construction should be all details and no generalities.

We are to consider these two terms together. It is to be a general plan of construction with certain details. If they had intended that this plan should convey to the abutting owner all the information which the subsequent plans provided for by § 6 were to convey, there would have been no necessity whatever for the provisions of § 6, and no necessity whatever for a general plan, but the requirements of the legislature would have been for a detail plan. Therefore in the report the commissioners have provided for the general manner of construction below Fourteenth street on the Fourth avenue side and below Thirty-fourth street, on the Broadway side, namely, that it shall be by underground tunneling without disturbing the streets, except in cases of necessity in certain localities, and such other special points as the commissioners may during the progress of the work determine, and that all excavations in Fourth avenue above Fourteenth street and all other streets and avenues above Thirty-fourth street may be made from the surface.

The provision in the report in respect to the special points in no manner affects the general plan. It was evidently intended to show that the construction was to be carried on in certain localities by underground tunneling, and that if. insuperable obstacles existed at special points, then excavations might be made from the surface and the commissioners were to determine that proposition.

It is apparent, therefore, what the general manner of construction was to be in all parts of the road.

The claim that on Fourth avenue above Fourteenth street and on all streets above Thirty-fourth the manner of construction is left wholly undetermined, it seems to us, is entirely unfounded. From the language of the report in respect to these localities, the property owner is warned that the method of excavation most detrimental to him may be employed, viz., excavation from the surface. He has placed before him the worst feature in respect to the excavation, and that is all that is required under the principles laid down in the case of the Kings Co. Elevated Ry. Co., above cited.

We think, therefore, upon a consideration of these general plans which have been submitted to the court upon this application for the appointment of commissioners, that they sufficiently comply with the provisions of the rapid transit act, and enabled the property owners to determine in a general way as to the extent to which their property may be encroached upon.

We are of opinion, therefore, that the motion should be granted.

O’Brien and Patterson, JJ., concur.  