
    The People of the State of New York ex rel. The Town of Colesville, Appellant, v. The Delaware and Hudson Company, Respondent.
    
      Grade crossing—a stipulation as to a temporary crossing, construed—application of the Grade Grossing Act, where a change in the railroad grads necessitates, a change in the highway—who p'i'ima/rily determines the manner of the new. crossing.
    
    A town brought an action against a railroad company, which contemplated raising its tracks at a point where a highway in the town crossed the railroad at grade, to restrain the railroad company from raising its grade at that point unless it should construct an undercrossing for the highway, and obtained & temporary injunction to that effect.
    The railroad company thereupon presented a petition, under section 62 of the Railroad Law, to the Board of Railroad Commissioners for the abolition of the grade crossing and the substitution of an undercrossing in its place. The town, although it desired an undercrossing, opposed the application because, if it was granted, a portion of the expense of constructing the undercrossingwould, under the statute, be imposed upon the town. The Board of Railroad. Commissioners, after a hearing, made an order denying the application.
    While the matter was pending and the railroad company was restrained by the-temporary injunction, the attorneys for the respective parties entered into a. stipulation entitled in the injunction suit, which provided: “ Stipulated by- and between the parties to the above-entitled action that any crossing which, may be put in by the above defendant at or near Lockwood's Crossing in the. above matter (except an undercrossing at the present highway crossing) is put in by defendant only temporarily to permit the construction of said under-crossing, and such temporary crossing is not to be used as evidence for or-against either party hereto in this action or any other proceeding, and the-injunction herein is hereby modified accordingly and no" claim for damages on, the injunction bond herein shall be in any event put in by defendant.”
    The railroad company thereupon raised the grade, of its railroad at the point in question and constructed a temporary crossing at grade. Subsequent to the-denial of the application made to the Board of Railroad Commissioners, the town instituted a mandamus ‘proceeding against the railroad company, under section 11 of the Railroad Law, and the judge before whom the matter was, brought on for a hearing decided that he was not convinced by the evidence-that the highway could be restored to its former usefulness only by the construction of an undercrossing and made an order requiring the railroad company, in the language of the statute, forthwith to restore the highway “to ita former state, or. to such state as not to have unnecessarily impaired its-usefulness,”
    Upon an appeal by the town from so much of the order as failed to require the railroad company to construct an undercrossing, it was
    
      
      Meld, that the fair purport of the stipulation was to protect the town against the possible claim of the defendant that the temporary crossing which the defendant proposed to put in should be regarded as a satisfaction of its legal obligation to restore the highway to its former state or to such a state as not unnecessarily to have impaired its usefulness as well as, and against, any claim under the injunction bond,,and that it did not constitute a contract on the part of the railroad Company, enforcible by mandamus, to put in an undercrossing;
    That, if the Grade Crossing Law (Laws of 1897, chap. 754) applied to the .crossing in question, the Board of Bailroad Commissioners had exclusive jurisdic- ' tion to determine, in the first instance, the manner in which the crossing should be made;
    That, if the Grade Crossing Law did not apply, the railroad company was authorized to determine primarily the manner in which the crossing should be made;
    That the town had received, by the order appealed from, all the relief to which, for the time, it was entitled, and that, as the railroad company had not appealed therefrom, the order should be affirmed,
    
      Qucere, whether the Grade Crossing Law applies to a change in a highway crossing made necessary by a change in the grade of the railroad and not by any change in the grade of the highway, or whether the statute applies only to a case where the grade of the highway is changed and the grade of the railroad remains unchanged.
    Appeal by the relator, the Town of Colesville, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 3d day of October, 1902, directing the issuance of a peremptory writ of mandamus, in so far as said order fails to determine that the relator is entitled to a peremptory writ of mandamus requiring defendant to put in an undercrossing in order to restore a certain highway to its former state of usefulness.
    
      A. D. Wales, for the appellant.
    
      Lewis E. Carr, for the respondent.
   Chester, J.:

The order entered herein was made after a trial of the issue raised By a return to an alternative writ of mandamus. The trial resulted in the granting of a peremptory writ of mandamus against the defendant requiring it, in the language of the statute (Railroad Law [Laws of 1890, chap. 565], § 11), forthwith to restore the highway at Lockwood’s crossing of the defendant’s railroad in the town of Colesville “ to its former state, or to such state as not to have unnecessarily impaired its usefulness,” and requiring the defendant to pay costs to the relator. The relator appeals because the writ does not command the method of the restoration and insists that it should require the defendant to restore the crossing by putting in an undercrossing instead of a crossing at grade. It appears that in the year 1900 the defendant was engaged in making certain improvements on that part of its road which passes through the township of the relator known as the JSTinevah branch. That branch had been constructed upwards of twenty years before, during all of which time there had been a crossing at grade át the point in question. The improvements at that point involved the raising of the grade of the railroad track six and one-half feet. Before the raise in grade was made the town of Colesville commenced an action in the Supreme Court against the defendant to restrain it from raising its grade at the point in question unless it should construct an under-crossing for the highway, and a temporary injunction to that effect was procured by the town against the defendant and served. Thereafter the defendant petitioned the Board of Railroad Commissioners of the State for the abolition of this grade crossing under section 62 of the Railroad Law (as amd. by Laws of 1899, chap. 359), and the substitution of an undercrossing in its place. If this had been granted, fifty percentum of the expense of the undercrossing under the law (§ 65, as amd. by Laws of 1900, chap. 517), would have fallen upon the railroad company, twenty-five percentum upon the State and twenty-five percentum upon the town. The application was opposed by the town, and, after a hearing, the Board of Railroad Commissioners made an order denying it. While that matter was pending and the company was restrained by the injunction referred to, the attorneys for the respective parties entered into a stipulation entitled in the injunction suit, which is as follows: “ Stipulated by and between the parties to the above-entitled action that any crossing which may be put in by the above defendant at or near Lockwood’s Crossing in the above matter (except an under-crossing at the present highway crossing) is put in by defendant only temporarily to permit the construction of said undercrossing, and such temporary crossing is-not to be used as evidence for or against either party hereto in this action or any other proceeding, and the injunction herein is hereby modified accordingly and no claim for damages on the injunction bond herein shall be in any event put in by defendant.”

It appears that this stipulation was regarded by the parties as a ■ modification of the injunction so as to permit the railroad company to go on with the work of changing the grade. The grade Was thereupon raised six and one-half feet and a temporary crossing at grade was made, which has since been used.

After the denial of the petition of the defendant to the Board of Bailroad Commissioners this proceeding was commenced, and it has resulted in the final order, a portion of which is the subject of this appeal.

Much of the argument of the appellant consisted of an effort to show that the stipulation above mentioned was in effect a contract on the part of the defendant to put in án undercrossing, which contract can be enforced by the writ of mandamus.

There is no affirmative agreement in the stipulation on the part of the defendant to put in an undercrossing. • The agreement it made was that any crossing which may be put in by-, it,'-except an undercrossing, was to be regarded as a temporary crossing.- The fair purport of the agreement is to protect the town against the possible claim of the defendant that the temporary crossing which the defendant proposed to put in should be regarded by it as a satisfaction of its.obligation under the law to restore the highway to its former state or to such a state as not unnecessarily to have impaired its usefulness as well as against any claim under the injunction bond. To that extent the town is protected by the stipulation. After the stipulation was made the town successfully opposed an undercrossing before the railroad commissioners. Bo doubt its opposition there was made in an effort not to defeat .an undercrossing, but to protect the town from paying a portion of the expense of making such a. crossing. But, whether this was so or not, the stipulation cannot be effective as a contract of the defendant to build an undercrossing without reading something into it that is not there. While the court will enforce stipulations made by parties to a litigation it will not undertake to make contracts for them. So I think this appeal is to be determined the same as though the stipulation had not been made.

Before the passage of what is known as the “ Grade Crossing Law” (Laws of 1897, chap. 754, adding §§ 60-69 to Railroad Law) the right to determine hów a highway should be taken across the tracks of a steam railroad, whether at grade or otherwise, rested primarily with the railroad company, under the old statute (Laws of 1850, chap. 140, § 24) which authorized it to carry the highway over or under its tracks as may be found most expedient.” (People v. N. Y. C. & H. R. R. R. Co., 74 N. Y. 302.) If, however, a railroad company made an attempt at the restoration of a crossing and such attempt had not been an effectual compliance with the statutory obligation to restore, resort could then be had to the court for a mandamus and the court would have in such case to point out in a writ in what respect the corporation had failed in its duty and would direct therein particularly what must be done by it in order to discharge its duty under the law. (People ex rel. Green v. D. & C. R. R. Co., 58 N. Y. 152.)

The “ Grade Crossing Law,” w(iich is now found in the Railroad Law in sections 60 to 69 thereof, inclusive, as amended, wrought an entire change in the law and the Board of Railroad Commissioners were thereby given exclusive power in all the cases mentioned therein in determining how highways should be taken across the tracks of steam railroads.

The Court of Appeals, in an opinion written by Chief Judge Parker, in discussing this change, in the recent case of People ex rel. City of Niagara Falls v. N. Y. C. & H. R. R. R. Co. (158 N. Y. 413), says: The latter act radically altered the procedure by which highways are to be carried across railroad tracks, a change of procedure made necessary by the radical change in the public policy of the State looking towards the ultimate abolition of the crossing of highways at grade by the tracks of steam railroads. It provides a complete scheme as to crossings, whether the tracks of the railroad cross streets already laid out or streets newly laid out, opened or extended across the tracks of a railroad already in existence, or the change in the grade of an existing crossing, and commits the regulation of the manner of making and constructing such crossing to the railroad commissioners who are given authority to determine whether a given street, avenue or highway shall pass over or under a railroad, or at grade. * * * The act of 1853 was repealed by that of 1897, and, therefore, since the 1st day of July of that year the procedure provided by the latter act must be resorted to in all attempts to take a street across the tracks of a steam railroad — a procedure that requires, in the first instance, a determination by the railroad commissioners whether the street shall pass under or over the tracks of such a corporation, or at grade.”

It is a settled rule of construction that when rights are conferred by statute, and specific remedies provided therein for their protection, that such remedies are exclusive and must be pursued. (Matter of New York, L. E. & W. R. R. Co., 110 N. Y. 379.) It would appear clear, therefore, that if the terms of the Grade Grossing Law are broad enough to cover the change in the existing crossing at the point in question the Board of Railroad Commissioners are clothed with exclusive jurisdiction to hear and determine- the matter in the first instance.

The argument of the appellant, however, is that. the Grade Crossing Law does not cover a case such as is presented by the facts here, for the reason that the change in the crossing was made necessary by the change in the grade of the railroad instead of by a change in the grade of the street, and that it is only in a case of the change of the. grade of a street where the grade of a railroad remains unchanged that the statute: applies.

It should be borne in mind that the repealing clause contained in the Grade Crossing Law was of all acts and parts of acts inconsistent with the new law. (Laws of 1897, chap. 754, § 3.)

It -is not necessary for us, therefore, to determine whether or not the appellant is right in this contention, for the reason that if it is right then the old statute would apply and the - railroad company would have a right, in the first instance, to elect whether it would carry the highway across its tracks at grade or otherwise. If it is wrong, and the Grade Crossing Law is broad enough to cover the case in question, then the Board of Railroad Commissioners must determine the matter in the first instance as to the method of crossing. In either event the court cannot now direct the manner of restoration.

The defendant insists that it can restore the highway at the point in question in such a way as npt unnecessarily to have impaired its usefulness by the construction of a crossing at grade, and that such a crossing can be made by it with a less percentage of grade than existed upon the old crossing, and the court has found that it was not convinced by the evidence that the highway can be restored to its former usefulness only by the construction of an undercrossing. It appears that this negative finding is clearly supported by the evidence upon that question and should not be disturbed on appeal, and especially not where the defendant is willing to take its chances of a restoration of the crossing at grade when a failure in restoration might subject it to a new resort to the courts on the part of the town to compel it to fulfill, its statutory obligation.

I think the appellant has got all it is entitled to have at present under the order appealed from, and that the order and the mandamus issued pursuant to it should stand without modification, the order not having been appealed from by the railroad company.

The order appealed from should be affirmed, with costs of appeal to the respondent.

All concurred, except Lyoh, J., not voting.

Order affirmed, with costs. 
      
       Chap. 62.— [Rep.
     