
    The People of the State of New York ex rel. George P. Sawyer and Others, Relators, v. The Board of Railroad Commissioners of the State of New York and Others, Respondents. (Proceedings Nos. 1, 2, 3 and 4 Consolidated.)
    Third Department,
    November 25, 1908.
    ¡Railroad-—public convenience and necessity—grant of new certificate after adjudication that certificate should not issue—certiorari—writ sued out by rival applicant.
    Where there has been a judicial determination that a certificate of public convenience and necessity for a proposed railroad should not be granted, the decision is controlling on a second application, as to the necessity of the particular construction..first proposed, where the situation remains the'same; and the effect of the decision is not avoided because prior to the second application the railroad was reorganized and the line extended from that originally planned.
    A certificate of public convenience and necessity should not he granted.where the construction' of the railroad will involve the monopolizing of lands fronting on navigable waters to the great detriment of commercial interests and to a proposed ship canal to he built by the Federal government.
    A writ of certiorari to review the determination of the Board of Railroad Commissioners granting a certificate of public convenience and necessity will hot be quashed solely because it is sued out by a rival applicant.
    Writs of certiorari issued out of the Supreme Court in four proceedings and attested on the 5th day of January, 1907, the 26th day of January, 1907, the 16th day óf March, 1907,'and the 15th day of April, 1907, respectively, directed to the Board of Railroad Commissioners of the State of New York and others, commanding them to certify and return to the office of the clerk of the county of Albany their proceedings and all things pertaining thereto in granting a certificate .óf necessity, and public convenience to the Buffalo, Lake Erie and Niagara Railroad Company.
    Also motion by the respondent Buffalo, Lake Erie and Niagara Railroad Company .to quash the writ cf certiorari obtained by the Buffalo Frontier Terminal Railroad Company to review the determination of the Board of Railroad Commissioners in granting the certificate in question.
    Certiorari in four proceedings. One sued out by George P. Sawyer and others, landowners, a second sued out by James Amm and others, landowners, which two proceedings were consolidated by an order of this court made March 12, 1907. A third sued out by the 'Buffalo Frontier Terminal Bailroad Company, and a fourth sued out by the New York Central and Hudson River Railroad Company, the Delaware, Lackawanna and "Western Bailroad Company and the Lehigh Valley Bailroad Company. The four proceedings were consolidated by an order of this court made May 7, 1907, under an order providing that the respondents need make but one return to the four writs which should be deemed a return to each and such return has been made.,
    The purpose of these several writs is to review the action of the Board of Bailroad Commissioners in granting to the respondent the Buffalo, Lake Erie and Niagara Bailroad Company a certificate under section 59 of the Railroad Law; (Laws of 1890, chap. 565, added by Laws of 1892, chap. 676 and amd. by Laws of 1895, chap. 545) that public convenience and a necessity require the construction of its railroad as proposed in its articles of association. . It is there described as a steam railroad. of standard gauge running from a point on the easterly shore of Lake Erie south of the city of Buffalo in the town of Hamburg, thence easterly in the towns of Hamburg and West Seneca; thence in an easterly and northerly direction east of the city of Buffalo through the towns of West Seneca and Cheektowaga to a point in the town of Amherst; thence in a westerly direction in the towns of Amherst and Tonawanda north of the city of Buffalo to the Niagara river; thence-northerly from its intersection with the Niagara river .to a point at or near the- southwest corner of the city of Tonawanda, and southerly from said point of intersection, with the Niagara river to the International- bridge in the city of Buffalo, together with a line or branch along the Niagara river and approximately parallel with the line along said river above described and easterly therefrom, a total of thirty-seven miles in length.
    In 1903 a company known as the Niagara Transfer Company presented its petition to the Board of Railroad Commissioners for a certificate of public convenience and a necessity for the construction of three nearly parallel lines of railroad along or near the Niagara river front from the northerly part of Buffalo to the southwesterly part of the city, of Tonawanda, two of such lines being substantially the same as the two branches of the road along and near the river front, which are now the subject of review. In the course of the proceeding it appeared that the company was not legally organized, and the proceeding was dismissed. A reorganization of the company was thereafter had, and a second, application made to the Bailroad Commissioners under section 59 of the Bailroad Law, and the application was granted, but on the hearing of a. writ to review the action of the Board of Bailroad Commissioners in granting that certificate their determination was reversed by the Appellate Division (People ex rel. Amm v. Railroad Commissioners, 103 App. Div. 123) and that decision was affirmed by the Court of Appeals (184 N. Y. 575). In June, 1905, while the proceedings for review in that case were pending, the present respondent, the Buffalo, Lake Erie and Miagara Bailroad Company, was incorporated in the interest of the same men who were concerned in the Miagara" Transfer Company, and for the purpose of promoting practically the same objects. The new company so organized inade the present application in 1905 to the Board of Bailroad Commissioners for its certificate under said section 59. But in addition to two of the proposed lines of railway mentioned in the former application, one along the Miagara fiver front, between Buffalo and Tonawanda, and one on the bluff along the canal between those places a short distance back from the river front, this application covered a proposed terminal railway running, around northerly, easterly and southerly of- the city of Buffalo and ending at a point on Lake Erie southerly of such city, as above described. - -
    The Buffalo Frontier Terminal Railroad Company'was organized in 1904, and in that year it made an application to the Board of' Railroad Commissioners for a certificate under said section 59 that public convenience and a necessity required the building, maintaining and operating of a steam railroad of standard gauge from the shore of Lake Erie south’of-Buffalo to the Niagara river in Tonawanda about thirty miles in length. The attorneys for the applicant not appearing upon the final submission the application was denied but it was renewed after the expiration of a year. Its proposed road runs practically parallel with all that portion of the road proposed by the respondent except those parts thereof bordering the Niagara river, or running nearly parallel therewith along the canal and also except a spur of the latter road running to the. International bridge. The Board of Bailroad Commissioners, by a vote of three to two, granted the certificate asked, for by the respondent, and at the same time, by a like vote, denied the certificate asked ■for by the Buffalo Frontier Terminal Nailroad Company. From ■ the order denying the látter certificate that company has appealed, and the appeal is now pending in ,the Appellate Division of the fourth department for determination.
    
      Simon Fleischmann, for the relators Sawyer and others, landowners.
    
      Edward W. Hatch, Frank B. Church and Joseph G. Dudley, for the relator Buffalo Frontier Terminal Railroad Company.
    
      Charles A. Pooley, for the relators the New York Central and Hudson, River Railroad Company and others.
    
      Clarence M. Bushnell, Lewis E. Carr and J. Henry Metcalf, for the respondent Buffalo, Lake Erie and Niagara Railroad Company.
   Chester, J.:

It seems to us plain that the determination of thé Board of Bail-road Commissioners in granting the certificate to the respondent, the Buffalo, Lake Erie and Niagara Bailroad Company, in the proceedings now under review cannot be sustained as, in an' important respect, it is contrary to the decision of this court and of the Court of Appeals in reversing the determination granting the former certificate to the Niagara' Transfer Bail way Company. (103 App. Div. 123 ; 184 N. Y. 575.) That decision refused'sanction to a like certificate for that portion of the proposed road fronting the Niágara river between Buffalo and Tonawanda, and along the bank of the canal a short distance removed therefrom between such cities. The reasons for reversing the determination granting that certificate were given in the opinion, of this court on "rendering that decision and need not be here repeated. It is sufficient to state‘that the facts which influenced that decision are not materially changed by this record. The only substantial change in the situation is by the addition to the - respondent’s proposed railroad of that part or terminal running around northerly, easterly and southerly of the city ' of Buffalo, and reaching to Lake Erie on the. south. That change alone should not, in our opinion, be effective to nullify our decision and that of the Court df Appeals with respect to the important rights' which were then involved, and ..which we think are again involved in substantially the same way in. the present application.

Other important reasons also impel us to reverse this determination. It appears that the Federal government has entered- upon a plan of improving the channel of the Niagara river which .involves the construction of a ship canal about 400 feet wide and 23 feet deep to connect the waters of Lake Erie with the waters of the Niagara river below Black Bock, by going through the old Black Bock harbor, and which, in combination with the enlarged ' Erie canal, will give a waterway adequate for the largest lake vessels from Lake Erie to the deep and quiet waters below the upper rapids of the Niagara river and on down to Tonawanda. One effect of this will be to permit vessels, to avoid the rapid current.of the river, which at the present time is a serious menace to the navigation thereof and to the commercial interests centering upon it. Greatly increased harbor facilities will also be afforded and opportunities opened for much additional space for dockage. Several thousand acres of land will also be made available for manufacture ing purposes along the water front between Black Bock- and Tonawanda. This improvement will cost several millions of dol- • lars, and already Congress has. - made two appropriations, one of $800,000 and one of $700,000, a considerable portion of which has already been expended. The work will cover a large portion of the river along and near which said respondent proposes to fun two of its railroad lines. The testimony shows that if the lines are built they will-practically nullify all the benefits-sought-to .be accomplished by the government in making the improvement, and will , require the appropriation by such respondent to its uses of much of the lands which would otherwise be made available for manufacturing industries,, and will render the remainder of such lands altogether undesirable for. such purposes. These portions of the proposed road are protested' against by the president of the Buffalo Chamber of Commerce and by its transportation committee, as well as by many prominent citizens interested in promoting the business and commercial welfare of that vicinity. If they are constructed they will practically monopolize all of the remaining water front on the Niagara river, between the cities of Buffalo and Tonawanda, to the great detriment of the commercial interests of those cities. Nearly all of that water front, except the part in question, is now occupied and used by other railroads. This fact alone emphasizes the necessity of keeping this part free from a like occupancy and use. At present, as pointed out in the former decision with respect to these portions of the road, there is no public convenience or necessity to be served by any railroad at the places in question, and there is no direct testimony in this record to that effect. It appears clearly to be an effort on the part of the respondent to pre-empt the future. The action of the Federal government in this matter was induced in a. large measure because the State of New York was building the barge canal. The good faith of the State is involved to such an extent that the effort to get this remaining portion of the water front of these cities should not be encouraged in the face of the protests mentioned, and after the government has entered upon the construction of the much-needed and expensive improvement referred to, and which, to a large extent, would be, made valueless in case the respondent or any railroad company should be permitted to secure and occupy this water front.

There is also a motion here on the part - of said respondent to quash the- writ of certiorari obtained by the Buffalo Frontier. Terminal Railroad Company to review'the determination of the Board of Railroad Commissioners in granting the certificate in question.

In view of the conclusion we have reached in the foregoing discussion of the case on the merits, a decision of this motion cannot be of much consequence, nevertheless as the motion is here it must be disposed of. It is urged on behalf of said respondent that under the authority of People ex rel. Depew R. Co. v. Comrs. (4 App. Div. 259) and of People ex rel. Ticonderoga Union Terminal R. R. Co. v. Board of R. R. Comrs. (113 id. 894) it is entitled to have the writ quashed. Those cases are not authorities to that effect. In the Depew case the writ was sued out, the same as here, by a rival applicant, that is, by the Depew Company to review the determinatio_n of the Board of Bailroad Commissioners in granting a certificate to the Terminal Bail way Company and in refusing to grant one to the Depew Company. This court considered /the case on the merits and affirmed the determination of the Bailroad Commissioners in granting the certificate to the Terminal Bailway Company, and held that the review of the determination in refusing to grant the certificate to the Depew Company could only be had upon an application to the court made pursuant to section 59 of the Bailroad Law, which is a proceeding in the nature of an appeal. The case, therefore;, is an authority in favor of sustaining the writ in question here to review the determination in granting■ the certificate in question. The Ticonderoga case was one where an attempt was made to review by a writ of certiorari a determination of the Board of Bailroad Commissioners in refusing tó grant a certificate, to the applicant, and this court on motion quashed .the Writ on the authority of the Depew case. This was altogether a different proposition from that involved here. .

The motion to quash such writ should be denied, without costs, and the determination of the Board of Bailroad Commissioners reversed on the law and on the facts, with fifty dollars costs and. disbursements to each relator.

All concurred.

Motion to quash , writ sued out by the Buffalo Frontier Terminal Bailroad Company denied, without costs, and the determination of. the Board of Bailroad Commissioners granting, certificate.to tlie-Buf. falo, Lake Erie and Niagara Bailroad Company reversed On law-, and facts, with fifty dollars costs and disbursements to each relator.  