
    Geneva and Waterloo Railway Company, Resp’t, v. New York Central and Hudson River Railroad Company App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Railroads—Intersections.
    Chap. 239 of 1898 does not make the right to an order, directing the crossing and intersection of street railroads over and with tracks of steam railroads, dependent upon an appointment of commissioners, hut declares the right of the petitioner to the order when an answer to the petition is interposed.
    2. Same.
    To vacate the order in such a case, it is essential that the steam railroad makes it appear, by affidavit or otherwise, that the proceedings have been in some respect irregular, or not authorized by the statute.-
    8. Same.
    Such statute does not authorize the taking of private property for public use without compensation, though it permits a temporary crossing to be made before the commissioners are appointed.
    Appeal from an order, denying a motion to vacate an order permitting plaintiff to lay its tracks across the roadbed and tracks of defendant.
    
      Albert H. Harris, for app’lt; Charles A. Hawley, for resp’t.
   Bradley, J.

The plaintiff, a corporation created and organized, pursuant to the “railroad law,” to construct and operate a street surface railroad in North street, from the village of Geneva into the village of Waterloo, obtained the requisite consents of the abutting property owners, and proceeded to lay its tracks in that street. The completion of its railway required the intersection of the defendant’s railroad, which crosses that highway. The plaintiff, being unable to agree with the defendant as to the manner of or compensation for the crossing, applied upon petition to the court for the appointment of commissioners. The defendant thereupon, by answer to the petition, raised issues which were sent to a referee for trial. Thereafter, upon application of the petitioner, the court by order directed it to lay its tracks across, and to intersect upon the surface of such highway, the roadbed and tracks of the defendant, and directed the latter to allow it be to done, and approved the petitioner’s bond, with sureties in that behalf. This order, and the bond so approved, were made pursuant to and in compliance with the statute. Laws 1893, ch. 239.

The question whether it was within the legislative power to grant such right to a street surface railway company was determined in the affirmative by the court in Buffalo B. & L. Ry. Co. v. New York, L. E. & W. R. Co., 72 Hun, 587; 54 St. Rep. 877. So far as that case is applicable to the present case, it is authoritative here. The fact that commissioners had been appointed in that case, and not in the one at bar, when the order was made, is a distinction urged as constitutionally vital, for the reason that, in the one case there had been a judicial recognition of the right of the company to construct a street railway for a public purpose, while in the present case there had been no judicial action to that -effect, but that the question in that respect was still an open one, and the legitimacy of the purpose of the project remained a matter for controversion by the defendant on the trial of the issues raised by its answer.

The statute, however, does not make the right to the order directing the crossing and intersection dependent upon the appointment of commissioners, but declares the right of the petitioner to the order when an answer to the petition is interposed. Before occasion can arise for obtaining such an order, the street surface railway company must have become a corporation organized for the purpose of the construction and operation of its railroad, and must have served its petition with notice of the application for the appointment of commissioners pursuant to the statute. The defendant railroad company is thus brought within the jurisdiction of the court, and subject to such proceedings as the statue permits the petitioner to take, among which is the application, in the event there mentioned, for the order giving the right to make the intersection by laying the tracks of the petitioner street railroad, the route of which is described in the petition, corresponding in length and termini with the description in that respect in the certificate of incorporation. And, so far as appears here, the organization of the petitioner as a corporation, ana the preliminary proceedings following it, were regular and valid. It may be seen that its purpose is legitimate. The state of the proceedings, lawfully conducted, at which the granting of such an order as that in question may be authorized, after the defendant by such proceeding is brought by it into the jurisdiction of the court, is not important, so far as relates to the question of legislative power. We are not advised of the matters alleged in the answer. The issues, whatever they are, do not defeat the petitioner’s right, given by the statute, to the order. The purpose of the statute permitting the application for it, when an answer - is interposed to the petition, evidently was to enable a street-railroad company to avoid the delay in laying its tracks, which otherwise would be consequent upon thus raising issues for trial. And, to vacate the order in such case, it is essential that the defendant make it appear, by affidavit or otherwise, that the proceedings have been in some respect irregular, or not authorized by the statute. Nothing whatever to that effect was made to appear in the papers upon which the motion to vacate the order in question was made. We are not dealing with the wisdom of legislation, but with its power ; and in that respect there is no apparent reason for the distinction before mentioned.

The intersection made pursuant to such an order, in either case, is for the time being provisional, and its permanency is dependent upon the result of the pending proceeding of the petitioner. By the reserved power to alter, suspend, or repeal the charter of a corporation (1 Bev. St. p. 600, § 8; Const, art. 8, § 1), its franchise is subject to legislative regulation. The relation of railroad corporations to the public is such that they may,in that behalf,be by statute required to assume burdens, having relation to the operation of their roads and with a view to the safety or convenience of the public. Laws 1874, ch. 648; People v. Boston & A. R. Co., 70 N. Y. 569. And by legislative enactment they may be required, without compensation, to allow streets and highways to be laid out, opened and used by the public across the land occupied by their tracks. Laws 1853, ch. 62; Railroad Co. v. Brownell, 24 N. Y. 345; Boston & A. R. Co. v. Village of Greenbush, 52 N. Y. 510; President, etc., of Delaware & Hudson Canal Co. v. Village of Whitehall, 90 N. Y. 21.

The statute last cited, and others having the support of judicial authority, illustrate somewhat the limitations applicable to the tenure of lands taken by a railroad corporation, and upon which its tracks are laid. The title so taken is limited to the use of the corporation for the purpose of its railroad, and that is a public use. And the exercise of the legislative power, to which such corporation is subject for the benefit of the public, may not be deemed the taking of property, in the sense which requires provision for compensation for constitutional support. Such was the case of Railroad Co. v. Brownell, where Judge Denio said : •

“ The property of the railroad is not taken away from the proprietors, who are still allowed to use it for all the purposes for which it was acquired from the original owner. Nor is there anything unlawful in obliging the railroad company to make the necessary excavations or embankments for taking the highway across the railroad.”

The question in the present case has relation to the right of the petitioner, derived from the statute, to lay its tracks on the surface.of a public highway, across the land occupied by the defendant’s track, also laid on the surface of the highway. The defendant, to that extent, has there an easement in common with the public. The intersection and contemplated use by the petitioner, as authorized by the statute, are for the public, and are consistent with the continued use by the defendant of its railroad, and without any substantial interference with such use by it.

It is unnecessary to further consider the question whether the intersection of the defendant’s road by that of the petitioner, as authorized by the statute and directed by the order, is a taking of property of the defendant in the constitutional sense of the term, since it was held by the court in Buffalo B. & L. Ry. Co. v. New York, L. E. & W. R. Co., 72 Hun, 587; 54 St. Rep. 877, that it was within the legislative power to permit such intersection and crossing without the allowance of compensation, and for that reason it is in this, as it was in that case, held that the question whether or not the statutory provision for security for the payment of compensation would otherwise have furnished the requisite certainty for the purpose does not necessarily arise for consideration.

The order should be affirmed.

All concur.  