
    The New Paltz, Highland and Poughkeepsie Traction Company, Plaintiff, v. The Central New England Railway Company and O’Brien Construction Company, Defendants.
    (Supreme Court, Ulster Special Term,
    March, 1914.)
    Railroads — Railroad Law, § gi—filing of petition with public service commission to eliminate grade crossings — injunction restraining defendants from trespassing or interfering with tracks — injunction.
    Under section 91 of the Railroad Law the defendant railroad company filed its petition with the public service commission to eliminate two grade crossings in a certain town and for leave to make a crossing of a turnpike road at a point where plaintiff, a trolley railroad company, had long occupied space upon which aforetime was the turnpike. On the hearing, petitioner offered to pay the entire expense of malcing the crossing of the turnpike and tracks of plaintiff, and the public service commission by order fixed “the location of the crossing” at the point indicated, and approved a plan by which the tracks of petitioner should pass under the turnpike and it should be carried over a concrete bridge upon which the trolley tracks would have ten feet space with a guard between it and the traveled portion of the highway on the bridge. Thereafter, the town procured an order of the Supreme Court authorizing the defendant railway company to build the proposed bridge in accordance with the order of the public service commission. While the other defendant to whom the railway company had let a contract for the construction of the work was excavating the earth beneath the trolley tracks located in the said turnpike, the trolley company procured a temporary injunction restraining defendants from trespassing on its right of way and from interfering with its tracks and operation.
    On the return of an order to show cause why the injunction should not be continued pendente lite, held, the order of the public service commission was the warrant for the point of location of the crossing and for immunity from expense to plaintiff for the execution of the plan, and the carrying on of the work which contemplated in part the safety of the traveling public should not be unnecessarily delayed. That no obstacle to the prosecution of the work appearing, except the determination of the plaintiff’s title to the land at the location of' the crossing which should be tried out in a proper action or proceeding, there was no sufficient reason for continuing the injunction and the motion should be denied.
    Motion to continue temporary injunction pendente lite.
    
    Johnston & Johnston and Joseph A. Duffy, for plaintiff.
    Charles M. Sheafe, Jr., for defendant, Central New England Railway Company.
    James F. Donnelly, for defendant, O’Brien Construction Company.
   Hasbrouck, J.

There has been for many years a turnpike road between the villages of New Paltz and Highland in the county of Ulster. Laws of 1831, chap. 108; Laws of 1867, chap. 169; Laws of 1881, chap. 245. About the year 1897 a trolley railroad was built in and along this turnpike between the two villages. Wherever the trolley tracks lie within the limits of the turnpike road it is a fair inference that the trolley company’s right of way came by some grant from the turnpike company.

The Central New England Railway Company, the defendant, has for some years past maintained and operated a railroad from the western terminus of what is known as the Poughkeepsie bridge at May-brook. Some time prior to September 5, 1912, it determined to straighten its line between such points and to eliminate certain grade crossings. On that day it filed its petition with the public service commission of the second district to eliminate two grade crossings in the town óf Lloyd and for leave to make a crossing of the turnpike road or highway near Litts ’ hotel, called Brooks’ crossing in the order of the public service commission. At this place the trolley road has long occupied space upon what aforetime was the turnpike. The petition of the railroad company is stated by the public service commission to be under what is now section 91 of the Railroad Law (Consolidated Laws, chap. 49). Among the parties before the commission, beside the petitioner, were the New Paltz, Highland and Poughkeepsie Traction Company and the town of Lloyd. There was an extended hearing and a rehearing and what appears to be due consideration was given to the claim of the respective parties. Upon the hearing on the petition of the Central New England Railway Company, it offered to pay the entire expense of making the crossing of the turnpike and tracks of the trolley company at the Litts ’ crossing. On or about the 28th day of April, 1913, the public service commission made its order upon the railway company’s petition fixing the location of the crossing ” at Litts and approving a plan by which the tracks of the petitioner should pass under the turnpike or highway and it should be carried over a concrete bridge upon which the trolley tracks would have ten feet space with a guard between it and the traveled portion of the highway on the bridge. Afterwards and on the 29th day of November, 1913, the town of Lloyd procured an order from the Supreme Court at Special Term at Albany authorizing the defendant railway company, among other things, to build its proposed bridge at Brooks’ or Litts’ crossing “ pursuant to the provisions of the Railroad Law and in accordance with the order of the Public Service Commission for the Second District.” Railroad Law, § 11; Village of Ft. Edward v. Hudson Valley R. Co., 192 N. Y. 139.

Sometime prior to February 27,1914, the defendant railway corporation undertook the execution of the plan approved by the public service commission for the crossing of the turnpike road and trolley tracks at Litts. The contract for the performance of the work contemplated by the plan was let to the defendant the O’Brien Construction Company. It was proceeding with the work and attempting to excavate the earth beneath the trolley tracks located in the said turnpike road or highway, when on February twenty-seventh the trolley company procured a temporary injunction restraining the defendants from trespassing on its right of way and from interfering with its tracks and operation, and an order to show cause why said order should not be continued pendente lite.

The plaintiff company alleges that at the locus in quo it owns the fee; that the execution of the plan will change the grade of its road so as to add to the expense ■ of operation; that its tracks will be removed from its right of way to that of the bridge of the defendant railway corporation, and that it will suffer irreparable injury. ,

The first grievance of the trolley company is that of invasion of its premises — trespass. Simple trespass is not favored as a ground of injunction, for ordinarily the injury following it can be exactly repaired in damages. Further, here the allegation of ownership .is put in issue. The applicant for injunctive relief has not pointed out to the court its source of title to the fee of its right of way. If the plaintiff’s title to its right of way in the turnpike proceeds from the turnpike company, it is quite probable whatever such title may be, that it hath not the quality of fee simple.

For a long time there has existed in the Eailroad Law a provision for the crossing of one railroad by another. The proceeding by which this might be accomplished is found in section 22 of the Bailroad Law which provides: “If the two corporations cannot agree upon the amount of the compensation to he made therefor or upon the line or lines, grade or grades, points or manner of such intersections and connections, the same shall be ascertained and determined by commissioners, one of whom must be a practical civil engineer and surveyor, to be appointed by the court, as is provided in the condemnation law. ’ ’ Village of Ft. Edward v. Hudson Valley R. Co., supra; Olean St. R. Co. v. Pennsylvania R. R. Co., 75 App. Div. 412.

These provisions of the law regulate the manner in which one railroad company may secure the right to cross the route and tracks of another railroad corporation. For several years past, the state has attempted to deal with the subject of railroad crossings of public highways at grade and has enacted laws providing for their abolition. The most recent of these are found embodied in sections 91, 92 and 94 of the Railroad Law. If the significance of these provisions is correctly apprehended it is that the public service commission has, in case of attempt by the railroad corporation to cross a highway, the authority and power to select the point or place of crossing and to determine upon whom the expense of the elimination shall fall, including the expense of the acquisition of the necessary lands. Railroad Law, § 94.

It is true that ’ section 92 provides how such necessary lands shall be acquired. In this respect, it supports the view of the court that the grade crossing provisions are separate and distinct in their application from subdivision 5 of section 8 and section 22.

Upon the subject of the “ point of crossing where the laws relating to crossings of railroads and grade crossings at public highways are both applicable, that relating to grade crossings is paramount. Danner v. New York & Harlem R. R. Co., 152 App. Div. 405; Matter of N. Y. C. & H. R. R. R. Co., 200 N. Y. 121; Matter of Erie R. R. Company, 208 id. 486 ; People v. Adirondack R. R. Co., 160 id. 225.

There is no necessity, under the circumstances of this case then, since the point of crossing ” has been determined by the public service commission, for the appointment of a commission by the Supreme Court, to fix that point. Neither is there — the defendant railway corporation having agreed to bear all the expense of the execution of the plan—need of a commission out of the Supreme Court to determine damages due to the plaintiff arising from interference with and replacing of its tracks.

The change in the location of the trolley company’s tracks upon the turnpike was ordered to render more secure and safe the lives of the public traveling the highway, trolley and railroad. Interference with the grade of the trolley company’s tracks and roads or with their place upon the highway is a mere incident in the execution of the plan. Danner v. New York & Harlem R. R. Co., supra.

The right of the public to the. use of the public street in a manner to protect human life cannot be subservient to that of the corporation whose function is only quasi.

There is no force in the claim of the plaintiff that its tracks are to be moved off its own right of way and onto the property of the defendant railroad company. The trolley tracks, though the plan calls for raising and carrying them upon a bridge in the highway, still will remain upon the plaintiff’s land, if it owns the fee. Its ownership will not be affected by the fact that the bridge carries the tracks above the soil.

The order of the public service commission therefor is the warrant for'the point of location of the crossing and for immunity from expense to the trolley company for the execution of the plan. The carrying on of the work proposed by the railroad company, which contemplates in part the safety of the traveling public, should not be unnecessarily delayed. The public service commission’s order was made nearly a year ago. No obstacle to the prosecution of the work now appears except the determination of the plaintiff’s title to the land at the location of the crossing. It would seem that this should be tried out in a proper action or proceeding at the convenience of the parties litigant.

In the facts appearing on this motion the court finds no sufficient reason for continuing the injunction. Temporary injunction vacated. Motion to continue denied, with ten dollars costs of the motion.

Motion denied, with ten dollars costs.  