
    Mark F. Manton, Appellant, v. South Shore Traction Company, Respondent.
    Second Department,
    October 4, 1907.
    Railroad — consent of highway commissioners— failure to construct road — lapse of grant — construction of road enjoined.
    When the consent of highway commissioners to the construction of a street surface railroad provides that the grant shall lapse unless one track he constructed . and operated within' two years, except in the case of delay by injunction, legal proceedings or causes beyond the control of the railroad, the latter exception should be construed as applying only to conditions for delay not then known' to the parties, such as interference ,b)r the courts or other acts of interference over which the railroad had no control.
    Hence, when such railroad, having power to enforce its right of way, fails to ' construct and operate the track within two years, the grant of the highway commissioners determines an'd cannot be continued .by a subsequent board of commissioners under the guise of a resolution extending the time within Which the railroad was required to file a bond. • ■ . .
    Á corporation which has paid nothing for such grant and made no investment on ' the faith thereof, abandons the same by a failure to construct the read within the time set and the grant can only be renewed by a compliance de novo with all the statutory requirements.
    When the grant to construct the road has lapsed as aforesaid, an abutting landowner and taxpayer is entitled to the continuance of a preliminary injunction in an action to perpetually enjoin the construction of the road.
    Hooker, J., dissented, on opinion below.
    Appeal by the plaintiff, Mark F. Mantón, from so much of an order of the Supreme Court, made' at the Suffolk Special Term and entered in the office of the clerk' of the county of. Suffolk on the 20th day of May, 1907, as denies upon the merits the plaintiff’s motion for the continuance of a temporary in j unction pendente lite.
    
    
      Charles A. Collin for the appellant.
    
      Clarence Lexow, for the respondent.
   Woodward, J.:

The plaintiff' is an abutting property owner and taxpayer upon the line of the defendant’s street surface railroad, now in' process of construction, and he brings this action to perpetually enjoin and restrain the respondent from constructing and operating its railway in the town of Islip, Suffolk county. The respondent is a duly organized company for the purpose of constructing and operating a street surface railroad from a point on the';Connecticut river in the county of Suffolk, through the town of. Islip to the Few York city line. On the 15th day of June, 1903, the highway commissioners of Islip, being the local authorities haying charge of such highways, granted to the respondent the' permission required by the statutes and Constitution of this State, for the usé of a portion of the South Country road and other highways, including Wheeler’s road and Railroad avenue. Among the conditions imposed, upon the granting of this permission, was one that the grant should be "accepted by the company within sixty days, which was done, and that' “ at least one track of the railrqad. line of the South Shore Traction Company shall be constructed and in operation across the town of lslip within .two years from the date of the granting of this franchise, otherwise all rights and privileges under this franchise shall cease, and determine, but in case of delay by injunction, legal proceedings or any cause beyond the control of the said South Shore Traction'Company, the period of such delay shall be added to the time named' within which the said track is to be constructed.”

Obviously the purpose of the-last clause of this provision was to. provide, not for conditions of delay then known to the parties, such as the fact of certain of the highways being under the provisions of special acts of the Legislature, etc., but for the interference of •the courts or other acts of interference over which the company had no control, and which were not then known. This is a place for the application of the rule of ejusdem, generis, that words of a general nature, following those of a particular character, are not to be deemed to enlarge the grant beyond the fair scope of the particular words. (See Johnson v. Goss, 128 Mass. 433; Matter of Reynolds, 124 N. Y. 388, 397, and authorities there cited; Morton v. Woodbury, 153 id. 243, 253.) To say that the defendant is entitled to any extension of its time, because ’t failed to secure consents of property owners, or because it did not succeed in getting rights of way through private property, where it had the full, legal right to force a right of way, is to read into the franchise at this time a condition which could not have been contemplated by the-parties at the,time of-making the grant, for both parties must be deemed to. have entered into the arrangement with reference to the law as it then stood. They both, in legal presumption and in fact, knew that there was a special act of the Legislature requiring different conditions than those, which prevailed in general for. the granting of consents by abutting property owners, and they knew that it might be necessary to overcome this by taking private property for a right of way, and to say that this franchise was extended in time on this account, where no such provision is expressed in the franchise, is to enlarge the scope of the grant' beyond the point fairly within the contemplation of the parties, and beyond the moral right of the commissioners of< highways to grant, for it is not to be presumed that highway commissioners, with a term of three years, are to be permitted to give consents for the use of highways to become operative- long after their terms of office have expired. The local consent ■ contemplated by the Constitution and the statutes is a consent to do something presently, within a reasonable time from the making of the grant, and when the highway commissioners in 1903 granted permission-to construct a street surface railroad and to have it in operation within two years, provided, the corporation was not interfered with by some action of the courts or other power 'of a like nature beyond its control, they had exhausted their powers in the matter. Tlie corporation accepted the grant linder the conditions • named; it was to construct its road and have at least one track in- operation across, the town within two years, under the penalty of- losing its rights under the- grant. Two years was ample time for the performance of these conditions, if the company was not interfered with by. a superior power, and-it was not, and it is difficult to understand' by what process of reasoning it can be held that the franchise, under which the defendant took no action until December, 19Q6, did not cease and determine ”, two years from its date. The franchise provided for the giving, of a bond for the performance of. the conditions, but it appears from thé record before us that, with the exception of accepting the terms of the franchise within- sixty days of. its adoption, which .was an acceptance of its terms as to forfeiture, or abandonment as well as its privileges, the defendant company took no action whatever toward the. construction of its lines through the town of Islip, and it-was not until the 19th day of December,1906, that it made an application to the highway commissioners asking for a waiver of the time required for the filing of the bond. On the 10th day of April, 1907, without having taken any of the steps required by section 92 of the Railroad Law, the highway commissioners met and adopted a resolution waiving the time, so far' as they were capable of' doing, for giving the bond, and it is upon the foundation of this waiver that the defendant claims -the right, questioned by the plaintiff in this action, to construct its road in front of the premises owned: by the' plaintiff, his fee going to the center of the highway proposed to be used by the defendant.

It seems to me that two years from the 15th. day of. June, 1903, or on the ,16th day of June, 1905, the original franchise ceased to exist. The corporation had abandoned it; the franchise by its terms, and without any action on the ’ part of either of '- the. parties, ceased to be. It was as though no action had ever been taken. .The corporation had paid nothing for. the grant it had made no investments, upon the. faith of the grant and been- prevented from realizing the benefits. It had simply failed to take any action to keep the grant in force, and at the end of two years the franchise ceased absolutely by its own terms,- and by every consideration of public policy and private good faith. When, in December, 1906, the defendant concluded that it wanted to use the highways in the town of Islip, it stood in exactly the same situation that any other company, duly .organized and having the necessary certificate, would stand ; it was its duty to make application to the highway commissioners for the permission, and it was the duty of-the highway commissioners to give public notice of such application, and to comply with all the terms of section 92 of the Railroad Law; it- was necessary to the jurisdiction of the highway commissioners to grant any permission to the defendant that there- should be a compliance with the provisions of section 92 of the Railroad Law, and the mere meeting of the commissioners and the adoption of a resolution- to waive the element, of time, was. of no more force and effect than would have been a resolution adopted by the local pedro -club.' Whatever jurisdiction the highway commissioners of 1903 had had been exercised, and the permission then granted had expired by the limitations mutually agreed upon. A new application was necessary and that application to give the'highway commissioners any power to surrender the rights of the public in .the highways of the town to a corporation, must be made in. the manner pointed out by law. This was not done, and the highway commissioners of 1901 had no possible- relation to those of the year 1903, even though they might be the same individuals, and they could not revive a franchise which had ceased to exist.’ ,

Whatever might, have been the effect of the attempted transfer of the .franchise Of another corporation, the defendant is not here relying upon that franchise; it attempts to support its position upon the strength of, the so-called Waiver of the highway commissioners, and the revival of the old franchise, and this motion should he determined upon the merits, as was attempted to be done at the Special Term. The highway commissioners, acting only under statutory authority, have no right to waive the rights of the public; they could only grant permission for the use of the highways in the manner pointed out by the statute. The defendant, not having any rights in the highway under its so-called franchise, the plaintiif, as an abutting owner, has a right to insist that the defendant shall not trespass upon his premises. Hé is fairly entitled to the continuance of the preliminary injunction during the penden'cy of the action, and in my opinion the order appealed from should be reversed, and the motion to continue the injunction should be granted.

Gaynor and Rich, JJ., concurred; Hirschberg, P. J., concurred in result; Hooker, J., voted- for affirmance on the opinion .of Mr. Justice Thomas at Special Term.

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs. 
      
      See Laws of 1890, chap. 565, § 92, as amd. by Laws of 1898, chap. 434.— [Rep.
     