
    The Delaware, Lackawanna and Western Railroad Company, Appellant, v. The City of Buffalo and Henry Quinn, Respondents.
    
      .Buffalo —- a railroad’S'fight to ¿mss city streets is derived from the Legislature — the .. consent of the municipality is necessary and irrevocable-—an eneroachment impairing the.usefulness of a street is a nuisance—how abated—powers delegated by the Legislature—Laws of 1850, chap. 140, § 28; 189Ó, chap. 565, § 11; 1870, chap. 519, • title 9, § 5. •
    Upon an appeal by the plaintiff from- a judgment in an action brought to restrain the city of Buffalo from removing from a street a bridge constructed by the '■ plaintiff, it appeared that in 1881 the New York, Lackawanna -and Western : Railroad Company, the lessor of the plaintiff, filed a map which showed the ■ ■ manner in which it desired to cross'Main street, in the city of Buffalo. Subse- . quently negotiations took place-between that corporation and the city which ' .resulted in. a bridge .being built over Main street, twelve feet in height-apd fórty-two feet and one-half in'-the clear, with abutments, one of-which' was : located cm the easterly line of Main street with a pier about twenty feet west- .- erly therefrom in the street, and the other, about thirty-four feet easterly of the westerly line of .the.-stfeet and' entirely within -the "street limits. .•
    
      Main street was ninety-nine feet wide, and about forty feet of it was occupied" by the structure; the sidewalk on its westerly side was "completely covered by an embankment, compelling foot passengers to walk in the highway a distance of eighty-two feet in order to pass the obstruction. Main street was used by numerous foot passengers, by many vehicles, by surface street cars, and about 100 feet south of the bridge was crossed, at grade, by the tracks of another railroad, "the view of which crossing from the north was materially obstructed by the pier abutments and embankments of the bridge, which might have been built over, the street with a single'span.
    In May, 1890, the.street commissioner was directed by the common council of the city Of Buffalo to notify the plaintiff to remove its structure within ninety days, and was directed, if the plaintiff failed to do so, to remove the obstruction at the expense of the plaintiff.
    
      Held, that the right to cross the streets of a city was one derived from the Legislature and not from the municipality; : . .
    That the assent of the municipality was necessary, and that after it had been given the right of the corporation became absolute and irrevocable, so far. as the city was concerned; ...
    That it was, however, a statutory duty of a railroad company to restore the pub- • lie highway “to such state as not unnecessarily to have impaired" its usefulness; ’’ and that in this case this duty had not been.performed;
    That the present structure amounted to a public nuisance which the city hád a right to abate, no matter how long it had existed;
    That the manner adopted by the city of abating the nuisance'was extremely summary, but was justified by the charter, and that such delegation of power to the city was not unconstitutional. . .
    Follett and "Ward, JJ., dissented.
    Appeal by the plaintiff, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme-Conrt in favor of the defendants, entered in the office of the .clerk of the county of Erie on the 13th day of May, 1895, upon the decision of the court rendered after a trial at the Erie Special Term dismissing the plaintiff’s complaint.
    In 1881 the Hew York, Lackawanna and Western Railroad Company, a railway corporation and the plaintiff’s lessor, filed a map and profile of its proposed route through the city of Buffalo, in the Erie county clerk’s office, which map showed, among other things, that such route was designed to cross Main street, one of the thoroughfares of that city. Thereafter, and on the 10th of October, 1881, the city, by resolution of its common council, duly granted permission to the. railroad company to construct its road along the proposed route, and directed the crossing of Mam street to “be by bridge, leaving a clear roadway underneath, at least twelve (12) feet in height and twenty-eight (28) feet in the clear * * * and subject to the approval of the city engineer.” The railroad company, availing itself of the permission thus granted, proceeded at once to construct its crossing, but without first consulting with, or receiving the approval of, the city engineer, and, in so doing, located both abutments of the bridge in the street, whereupon it was notified by the city engineer that its plan of crossing did not meet his approval. .
    Upon the 14th of December, 1881, the common council, by a resolution duly adopted, directed the company to construct a span of at least sixty-six (66) feet in width in carrying its bridge over the street.
    . Thereafter, and in the month of January, 1882, á conference was held between the officers of the railroad company, the city engineer and the defendant’s street committee, which resulted in a modification of .the terms and conditions theretofore sought to be imposed by the common council, and in consequence of which the company proceeded with, and completed the construction of, its bridge over and across Main street, in such manner that a clear roadway was left underneath the structure twelve (12) feet in height and forty-two and a half (42^) feet in the clear, locating its abutments, one on the easterly line of Main street with a pier about twenty feet westerly therefrom in the street, and the other about thirty-four feet easterly of the westerly line of the street, and entirely within the limits of the street. -
    Main street at this point is ninety-nine (99) feet in'width, upwards of forty (40) feet thereof being occupied by the company’s structure, and upon the westerly side thereof the sidewalk is completely covered by an embankment, so that it is necessary for all foot passengers upon that side of the street to walk in the highway a distance of eighty-two (82) feet in order to pass this obstruction, and the space remaining is insufficient to meet the requirements of the public who have occasion to use the highway.
    It appears that this street is constantly used by large numbers of people on foot, and by divers kinds of vehicles, and also by surface street cars, and that about one hundred (100) feet south of the bridge the street is crossed by the tracks of the Mew York, Lake Erie and Western Railroad Company, at grade, the view of which crossing is very materially obstructed to travelers approaching from the north by the pier, abutments and embankments of the bridge in question.
    It was entirely feasible to carry the railroad tracks over the street by means of a bridge with a single span, and in such manner as not to obstruct or interfere in any appreciable degree with the street itself.
    The common council did not formally approve of the action of the city engineer and street committee in assenting to a modification of the requirements embodied in the resolution of December fourteenth, and upon May 26, 1890, that body adopted a further resolution directing its street commissioner, the defendant Quinn, to notify the plaintiff to remove the obstruction above specified within ninety (90) days, and that, if they were not removed Avithin that time, to remove them at the plaintiff’s expense. This resolution was approved by the mayor, whereupon this action Avas brought to restrain the defendants from carrying the same into effect.
    
      John G. Milburn, for the appellant.
    
      Charles L. Feldman, for the respondents.
   Adams, J.:

This case comes into this court with the advantage of a previous adjudication which commands our approval and which must he regarded as conclusive, so far as one of its essential features is concerned.

Upon the former trial the complaint Avas dismissed upon the theory (1) that the common council of the city of Buffalo had no authority under its charter to grant permission to the plaintiff or its lessor to erect or maintain the abutment and pier or any other permanent structure in Main street upon Avhich it might construct a bridge; and (2) that such permission as was granted to the plaintiff’s lessor by the resolution of October 10, 1881, was rescinded by the resolutions of December 14, 1881, and January 16, 1882.

This decision was reversed by the General Term in the fifth department, for the reason that it apparently rested upon the assumption that the right of the railroad company to cross the streets of the city was one that Avas conferred by the municipality itself, whereas in fact it was one derived from the Legislature,- which exercises supreme power over the streets of cities, as well as over the highways of the State at large, although where it is designed to 'cross the streets of a city the assent of the municipality must first be obtained as a prerequisite to the exercise of that right. And in this, connection it was further held that where, as in the present case, such assent liad been given, the right of the corporation became, as to the city, absolute and irrevocable. (65 Hun, 464.) .

"' We start out, therefore, in the consideration of this case with the following propositions clearly established : (1) That the plaintiff or its lessor obtained its right to carry its tracks across the street -in question from the power conferred by the General Railroad Act ;• (2) that this right, thus obtained, was, nevertheless, subject to the approval of the municipality; (3) that such approval was given and has never been revoked, because it was irrevocable.

' ■ With the law of thé case thus defined, there still remained for determination hy the trial court the question 'of whether or not the railroad company had complied with the provisions of the act from which it derived its authority to construct its road, which requires that in carrying its tracks across a public highway it shall restore the same to such state as not unnecessarily to have impaired its usefulness ” (Laws of 1850, chap. 140, § 28, subd. 5); and this issue it now. appears was 'decided in the negative by the court upon the second trial, which, with • abundant evidence to' sustain tlié ' conclusion, found that the pier, the westerly abutment and the earthen embankment which constitute the foundation of the bridge, and which, confessedly, are within the boundary lines of Main street, materially delay and inconvenience the public' and are an obstruction to travel in the street; that they interfere with the view of trains on the tracks of the ¡New York, Lake Erie and Western railway just south of the structure; that the usefulness of Main street as a public thoroughfare is -impaired -thereby j that such impairment and obstruction were not necéssary in the construction of the overhead crossing, and that it is' entirely feasible to carry the plaintiff’s tracks over the highway by means of a single span.

It is hardly necessary to' add that this condition of affairs constitutes an obstruction to a public street in a populous city, which must of necessity prove very serious in its proportions and a constant annoyanee to a considerable number of people. It is, therefore, one which seems to demand some action upon the part of the local' authorities, and it only remains to determine whether the remedy resorted to in this case was an efficient and proper means of accomplishing" the object sought.

The primary use of a highway, whether in the country or city, is to permit the passing and repassing of the public thereon, and the public are entitled to an unobstructed and uninterrupted use thereof for its entire width. (Cohen v. Mayor, etc., 113 N. Y. 532.) But such use is subject, of course, to legislative abridgment and restriction, and therefore it is that railroad companies are permitted to lay their tracks over and upon the highways of the State with the condition imposed, nevertheless, that in availing themselves of this privilege, they shall cause no unnecessary impairment of such highways, and shall not unnecessarily interfere with the use for which they are primarily designed. (Laws of 1850, chap. 140, § 28; Laws, of 1890, chap. 565, § 11.)

It follows, therefore, that when the plaintiff’s lessor obtained the assent of the defendant’s common council' to carry its tracks across Main street by means of an overhead bridge, it had acquired all that was necessary to the exercise of its right to make such a crossing in the manner provided by the Legislature. But, as we have seen, the statute conferred upon it no power to cause an unnecessary obstruction to the public use of the street, nor could such power be derived from any resolution of the common council, however comprehensive might have been its terms, and no lapse of time, however great, could destroy the right of the city officials to remove or abate an obstruction thus created, because it obviously constituted a public nuisance. (The St. Vincent Female Orphan Asylum v. The City of Troy, 76 N. Y. 108; The People ex rel. Wooster v. Maher, Mayor, etc., 141 id. 330; Cohen v. Mayor, supra; Town of Windsor v. Delaware & Hudson Canal Co., 92 Hun, 127; Wakeman v. Wilbur, 147 N. Y. 657.)

Having reached this conclusion with respect to the situation, it is-manifest that the municipality might avail itself. of .any remedy which the law affords to accomplish the removal of the illegal obstruction. There were several at its command, which will readily suggest themselves, one of which, and the one actually employed, is furnished by section 395 of the city charter (Chap. 105 of the Laws of 1891), which directs that Cf the city shall remove all encroachments- upon, projections over and obstructions on the public grounds, streets, alleys and wharves, and abate all nuisances; and cause the expense to be assessed upon the lands upon or in front of which such encroachment, - projection, obstruction or nuisance was, or upon the parcels of land' benefited by such removal.” The present charter was enacted subsequent to the. adoption of the resolution of the common council which initiated the proceeding complained of; but this section was simply a substitute for a similar one contained in the former charter which was in effect at that time. (Laws of 1870, chap. 519, tit. IX, § 5.)

The employment of this summary method of abating a public nuisance was attended with considerable hazard, it is true, for the mere declaration by some local authority that a nuisance exists is1 not conclusive upon the party concerned, who may, as the plaintiff is now doing, contest that fact in the courts.. (Cooley on Const. Lim. [5th ed.] 742.) -And it is a method which should be resorted to with great- caution and hesitation. (Wood’s Law of Nuisances, § 740.) But, nevertheless, where it is apparent that an obstruction to a highway actually exists, and that it is of such a character as to constitute-a public nuisance, the power to thus abate it may be constitutionally conferred upon a municipal corporation, and when thus conferred may be legally resorted to. (The People ex rel. Copcutt v. Board of Health, 140 N. Y. 1.)

We conclude, therefore, that inasmuch as the facts in -this case show the existence of such an obstruction, it cannot be said that the means adopted by the defendants for its removal were unjustifiable, especially in view of the reasonable time which was afforded 'the plaintiff to avoid any interference upon the part of the defendants, by itself taking the necessary steps to remove the obstruction complained of, and consequently we are of the opinion that the judgment appealed from should be affirmed.

All concurred,. except Follett and Ward, JJ., dissenting.

Follett,. J. (dissenting):

I am unable to concur in holding that a bridge which has existed for eight years over a street, constructed pursuant to a mutual agreement between the railroad and the city, isa “public nuisance,” or añ “ encroachment,” which may be summarily torn down. The city should have sought redress for its alleged wrongs by an action in which the duties and liabilities of each party could have been determined and declared. If this bridge is summarily torn down, what kind of one may be built in its place, how high, with what span, at whose expense, or is the railroad to be cut in two at this point ?

The defendants might have set up in their answer in this action any change in the situation which rendered a different structure necessary, prayed for affirmative relief, and had the duties and liabilities of the parties adjudicated, but they chose to rest their case on an alleged legal right to tear down the bridge as a nuisance, which it seems to me they failed to establish. ' I think the judgment should be reversed, and a new trial granted, with costs to abide the event.

Ward, J., concurred.

Judgment affirmed, with costs.  