
    PEOPLE’S R. R. CO. OF SYRACUSE v. SYRACUSE, BINGHAMPTON, ETC. R. R. CO.
    
      N. Y. Supreme Court, Fifth District, Special Term ;
    
      January, 1889.
    
      Again, Fourth Department, General Term ;
    
    
      February, 1889.
    1. hi junction; conflicting orders.] If an injunction has been duly granted and served, a counter injunction obtained from another judge in a cross action, if conflicting with the first and only enforcible by a violation of the first, should be vacated, irrespective of the merits.
    2. Railroad companies.] A surface street railroad company, except in the city of New York, cannot construct its road across the track of a steam railroad without consent, unless the question of compensation and manner of crossing has been first legally determined in proceedings under the statute.
    I. At special term.
    
    Motions to vacate injunction orders. •
    The People’s Railroad Company of Syracuse, a street surface railroad corporation, brought this action against the Syracuse, Binghampton, etc. Railroad Company, a steam railroad corporation, to enjoin the defendant from interfering with the plaintiff in laying its track across the defendant’s road and running its cars thereon.
    
      On December 27, 1888, upon an ex parte application to Hon. A. J. Xorthrup, county judge of Onondaga county, a preliminary injunction, in accordance with the prayer in its complaint, was granted to the plaintiff.
    On the same day, but after the plaintiff’s injunction was served upon the defendant, the defendant commenced an action against the plaintiff, and upon an ex parte application Hon. Irving G. Vann, justice of the supreme court, a preliminary injunction was granted commanding the Peo: pie’s Railroad Company, its agents, etc., to refrain and desist from in any manner constructing, maintaining or operating its railroad over or upon the tracks or road-bed of the Syracuse, Binghampton, etc. R. R. Co.
    The People’s Railroad Co. now moved to vacate the injunction order, granted by Justice Vann, and the Syracuse, Binghampton, etc. R. R. Co. also moved to vacate the order of Jndge X orthrup.
    
      jV. S. Andrews, for the People’s Railroad Co.
    
      Louis Marshall, fo* Syracuse, Binghampton, etc. R. R. Co.
    'Kennedy, J.—The order granted by Justice Vann is clearly in conflict with the provisions in that granted by Judge Xorthrup, and its execution could only be enforced by a direct violation of the requirements of the latter. Had the acts been committed by the defendant, the Syracuse, Binghampton and Xew York Railroad Company, to prevent the plaintiff from doing what by it they are sought to be restrained from doing, without the order granted by Justice Vann, the guilty parties would have committed a contempt and have been subject to the penalties which the law in such cases imposes. That this illegal purpose was attempted to be accomplished, under the cloak of an order improperly applied for and inadvertently granted, does not change the status of the erring parties. The simple fact of a party, who has been enjoined by an order properly made and served and then in force, applying to another judge, having concurrent!; jurisdiction for one to enable him to evade or avoid the effect of the first mandate, or to do what by it he is restrained from doing, is in itself a contempt.
    Without, therefore, entering upon an examination of the merits involved in the application for the second injunction, a proper respect for the dignity of the officer granting the first, a due regard for the power confided to and to be exercised by the judiciary in the protection of the person and of property, coupled with the danger to each, if judicial mandates of this character may be disobeyed, although the same shall be under a guise of an equally to-be-respected command, compels me to the conclusion that the injunction order granted by Hr. Justice Vans, should be vacated and set aside.
    The People’s Railway Company of Syracuse is a corporation organized under the laws of the State for the purpose of constructing a horse railroad over the surface of certain streets and avenues in the city of Syracuse, one of these being on Onondaga street. The defendant, the Syracuse, Binghampton and New York Railroad Company, which is also a domestic corporation, many years ago constructed a steam' railroad, leading from the said city to the city of Binghampton, the track of which crossed Onondaga street upon the surface and on the street grade. It was so laid more than thirty years ago by permission of the common council in said city; during a^l of which time it has used the same, and has propelled its cars by steam power over it. The People’s Company laid its rails in Onondaga street, upon both sides of the defendant’s tracks. Although negotiations were had between the respective roads, looking to the acquiring of permission by the latter road for the rails of the former to cross its tracks, which continued for several months, no agreement was reached. Having laid its rails up to those of the defendant, the plaintiff, without its consent and against its protest, appeared upon the ground with a number of men on December 27, 1888, and laid rails for its roads between those of the defendant, without in any manner interfering with them, and immediately procured the injunction in question, restraining said defendant from removing said rails, or from interfering with the plaintiff in the running of its cars over the crossing thus made. A statement of .these facts tends to show that it was the intent and purpose of the plaintiff to force its tracks across that of the defendant, irrespective of any right it had or may have acquired in that part of said street, over which its rails were laid, looking for future judicial action to protect ,it. The question involved then is, had the defendant acquired such exclusive rights, in that part of Onondaga street occupied by it, as to render the plaintiff a wrong doer by entering thereon and laying its rails across its tracks on said street ? If the plaintiff had no right, without the consent of the defendant, and it had acquired none by proper legal proceedings to secure that end, the fact that it only laid its rails between those of the defendant, even though they were not interfered with (the only practical end to be attained being to secure right of way for its cars), will not shield it from the illegality of its acts or secure to it any rights by reason of them. The defendant acquired its charter rights and was organized under and in pursuance of the general railroad act, chapter 140 of the Laws of 1850, and the several acts amendatory thereof, and all the rights and privileges conferred thereby became vested in it. One of these is the right to acquire land necessary for its use, by grant or the exercise of eminent domain, and upon payment of compensation. By subdivision five of section, twenty-seven it is provided that nothing in the act contained shall be construed to authorize any such company to construct-a railroad across any street, in any city, without the consent of the corporation of said city. When this consent is given and a railroad track is laid across a street, the corporation laying the same acquires the right to use that portion of the street so occupied by it for its corporate uses. But the-rights- of the public are preserved and its use by them is in no manner affected, except so far as the necessary inconvenience resulting from the use of said railroad track may interfere therewith; and this use cannot unreasonably abridge this public right. In 1854 the city of Syracuse granted to the Syracuse & Bingbampton ¡Railroad Company, the defendant’s predecessor, the right to lay its track across Onondaga street for the purpose of using the same to operate a steam railroad upon ; and it was in pursuance of this consent that the same was laid as at present located, and has since that time been used. The acceptance of this grant or permission, and the laying of the track by the defendant, vested in it an absolute right to use and occupy so much- of said street as was necessarily occupied by it for the use and operation of its •railroad, reserving the right of the public therein, as before stated. It has been held that the engines and cars of a steam railway corporation have the exclusive right of this track, as a whole, and the first right to use it at the place of intersection; and the general public traveling over said street, in the usual and ordinary manner, drawing near to such crossing, must yield priority of passage to such engines and cars. (Adolph v. The Central Park, North and East River Company, 76 N. Y. 530.) The railroad being the owner of the rails laid, and a right to use the ground between them, for the passage of its cars, hold the same free from the wrongful encroachment thereon by any other incorporated railroad company, unless, as claimed by the plaintiff, the use of a street by a horse railroad is an appropriation of it to a public use as a highway.
    No right is vested in any railroad corporation, whether propelled by steam or horse power, to lay its tracks over the streets of a city without the consent of the proper officers of the municipality; and when laid they are for the especial use of the corporation. It acquires and holds a superior right to the public to use them. This permission, then, is a franchise vested in the donee, and when availed of becomes a property as secure from all improper invasion as property of any other character, or acquired in any other manner. By the sixth sub-division of section twenty-eight of the general railroad act, it is provided that every corporation formed under the act shall have power, when its railroad is intersected by any new railroad, to unite with the owners of such new railroad in forming such intersection or connection, and to grant the facilities asked for. If the two companies cannot agree upon such intersection or connection, and the grade, point and manner of such crossing and connection, the same shall be ascertained by commissioners, one of whom must be a practical engineer, to be appointed by the court, as is provided by the act in respect to acquiring title to real estate. It then provides the manner said commissioners shall proceed in the execution of their duty. It has been held that in all cases, where the two corporations cannot agree, that proceedings to acquire the right to cross an intersected track by another railroad track must be had under the statute aforesaid. (Matter of Lake Shore & Michigan Southern Railroad Company, 89 N. Y. 442; Matter of Boston & Hoosac Tunnel Railroad, 70 Id. 64; Matter of New York, Lake Erie & Western, 44 Hun, 215.) It is true these cases relate to the crossing of one steam road over another. That the provisions of the act under which the proceedings are had apply to street railroads is evidenced by a provision in chapter 583 of the Laws of 1880, amending the same in this regard; which provides that nothing in this act contained shall apply to any street surface railroad in the city of New York; thereby, by irresistible implication, extending its provisions to these roads in all other’cities. I have been unable to find any authority suggesting an exemption of street railroads from the requirement of the above statutory provision, since the act of 1880, or at any time, relating to the crossings of steam railroads by a horse railroad. The learned counsel for the plaintiff lias called my attention to the case of the New York & Harlem R. R. Co. v. The Forty-second Street, etc. R. R. Co., 50 Barb. 285. This case involves the question of the right of one horse railroad, running over the same street, in the city of New York, to cross another horse railroad. It was decided before .the passage of the act of 1880 before referred to. And whether it is a true exposition of the rights of the company, whose track was invaded as applicable to that city it is not necessary to determine here. It does "not aid in the solution of the question under review. It is proper, however, to say that the crossings of the tracks of one horse railroad by those of another does not involve any of the consequences which might and would reasonably be expected to flow from the crossing of the tracks of a steam road. Paramount among these is the exceeding peril to the lives and property of the public incident to such crossing. The imminence of this peril requires the application of the utmost care and the creation of the best safeguards to guard against it.
    The necessity of their appointment and the duties of the commissioners appointed are well defined in the opinion of the court in the matter of the Lockport & Buffalo Railroad Company, 19 Hun, 38. The provisions of this statute were applied without question as to the property of doing so in the matter of the Cortland, etc. Horse Railroad Co. for a right to cross a steam road (31 Hun, 72). I am, therefore, of the opinion that the plaintiff cannot, without the consent of the defendant, or through the intervention of the commissioners determining the mode and manner and under what circumstances the same shall be made, enter upon and cross the defendant’s track at the point indicated. It is proper this should be so. The crossing of a steam railroad track upon the surface is, as before suggested, one of great danger to the public. When such crossing is to be made by a street car, cumbersome and unwieldy in its character, and appropriated to a general carriage of the people of a steam road used in part for. the same purpose, it behooves those having the administration of the public affair in charge to see that every precaution is adopted calculated to protect the people from, the danger thus created.
    The plaintiff suggests that if it be permitted to cross the-defendant’s track until the question of its rights is determined upon the trial, that it will enter into an undertaking sufficient in amount to protect the defendant against any claim for damage which it may sustain by reason of such crossing. The answer to this proposition, adverse to the plaintiff, is found in the fact that to permit this would be to allow and continue a wrong upon the rights of the defendant, which I am not willing to believe is within the power, as it certainly ought not to be within the will of the court to permit. That this cannot properly be permitted is further evidenced by the fact that the People’s Bailroad Company is probably the only one which can make application for the appointment of commissioners, or set in motion the machinery necessary to determine the condition upon which such crossing shall be made (Matter of Lake Shore & Michigan Southern Railroad, 89 N. Y. 442).
    If right in the conclusion reached, it follows that the injunction order granted in the first entitled action was improperly granted and should be vacated. An order in each case will be entered vacating the injunction order granted therein.
    In view of the circumstances under which the respective orders were obtained, costs should not be allowed to either party.
    II. At General Term.
    
    Appeal from order of special term vacating injunction order.
    From the decision of the special term vacating the injunction order granted in favor of the People’s Bailroad Company, an appeal was taken to the general term.
    
      W. S. Andrews (Knapp, Nottingham c& Andrews, attorneys) for the People’s B. B. Co., appellant.
    I. Unless prohibited by statute, the crossing of defendant’s tracks by the plaintiff, in the manner described, was lawful and proper (Sixth Ave. R. R. Co. v. Kerr, 45 Barb. 138 ; Adolph v. Central Park, etc. R. R. Co., 65 N. Y. 554; Fash v. Third Avenue R. R. Co., 1 Daly, 148; Ordinances, Chap. 37, § 2; Dillon on Municipal Corporations, § 704; People v. Kerr, 27 N. Y. 188; Kellinger v. Forty-second St. R. R. Co., 50 Id. 206; Story v. N. Y. Elevated, etc. R. R. Co., 90 Id. 122; Lahr v. Metrop. Elevated Ry., 104 Id. 268 ; Albany N. R. R. Co. v. Brownell, 24 Id. 345).
    II. A crossing, such as the one in question, is not prohibited by statute (Brooklyn C. & J. R. R. Co. v. Brooklyn City R. R. Co., 33 Barb. 420; N. Y. & Harlem R. R. Co. v. Forty-second Street, etc. R. R. Co., 50 Id. 309 ; s. c., 32 How. Pr. 481; Howlett v. N. Y., West Shore, etc. Ry. Co., 14 Abb. N. C. 328; Sixth Avenue R. R. Co. v. Kerr, 72 N. Y. 330; Matter of Lockport, etc. R. R. Co., 19 Hun, 38, 43).
    III. A court of equity will not vacate an injunction where its continuance will not harm the defendants, and yet is of great importance to the plaintiff (Glover v. Manhattan R. R. Co., 51 Super. Ct. [J. & S.] 1).
    IV. An injunction will be granted to restrain a party from deciding for himself a question involving controverted rights and to compel him to resort to the courts (Atlantic, etc. Tel. Co. v. B. & O. R. R. Co., 46 Super. Ct. [J. & S.] 377).
    V. An injunction is the proper remedy to protect a plaintiff in the enjoyment of its statutory rights and privileges (Rochester, etc. R. R. Co. v. N. Y., etc. R. R. Co. 110 N. Y. 128).
    
      Louis Marshall (Jenny, Brooks, Marshall & Buyer, attorneys), for the Syracuse, Binghampton, etc. B. B. Co., respondent.
    I. The defendants right to operate its trains and to maintain its tracks over West Onondaga street is a right of property protected by the Constitution and the placing of any obstruction upon, or subjecting it to any incumbrance or easement in the nature of a crossing by any other railroad company is an interference with such constitutional right of property (Matter of Lockport and Buffalo R.R. Co., 19 Hun, 38; Sixth Avenue Railroad Co. v. Kerr, 72 N. Y. 330; Howlett v. N. Y. West Shore & B. Rw’y Co., 14 Abb. N. C. 328; aff’d 28 Hun, 55; People v. O’Brien, 111 N. Y. 1; s. c., 18 Northeast Rep. 692; Milhau v. Sharp, 27 N. Y. 611; Davis v. Mayor, etc. 14 Id. 506; Mayor v. Second Avenue R. Co., 32 Id. 261; Matter of Kerr, 42 Barb. 119 ; Brooklyn Central R. R. v. Brooklyn City R. R., 32 Id. 358 ; Seneca Road Co. v. Auburn and Rochester R. R. Co., 5 Hill, 170 ; Boston Water Power Company v. Boston and Worcester Railroad Co., 23 Pick. (Mass.) 360 ; Grand Junction R. R. Co. v. County Commissioners of Middlesex, 14 Gray (Mass.) 553 ; Parker v. Boston & Maine R. R. Co., 3 Cush. (Mass.) 108, 113 ; Boston & Lowell R. R.v. Salem & Lowell R. R., 2 Gray (Mass.) 1; Central Bridge Corp. v. City of Lowell, 4 Id. 474; Old Colony, etc. R. R. v. County of Plymouth, 14 Id. 155 ; Worcester & Nashua R. R. Co. v. Railroad Commissioners, 118 Mass. 561; 1 Redfield on Railways, 638; Jersey & Bergen Railroad Co. v. Jersey City & Hoboken R. R., 5 C. E. Green (N. J. Eq.) 61; Baltimore, etc. Turnpike Co. v. Union R. R. Co., 35 Md. 224; Grand Rapids, Newaygo, etc. R. R. Co. v. Grand Rapids & Indiana R. R. Co., 35 Mich. 265 ; West River Bridge Co. v. Dix, 6 How. [U. S.] 507; Enfield Bridge Co. v. Hartford, etc. R. R. Co., 17 Conn. 40, 454; Lake Shore & M. S. Railway Co. v. Cincinnati, etc. Railway Co., 30 Ohio St. 604; East St. Louis, etc. Railway Co. v. East St. Louis Union Railway Co., 108 Ill. 265 ; s. c., 17 Am. & Eng. Railroad Cases, 163 and notes).
    II. The defendant’s right in its track and on that portion of West Onondaga street occupied by it, being a right of property, cannot be interfered with by any other railroad company, or burdened by it, without its consent, and without condemnation by due process of law, and compensation paid; and any statute expressly, or impliedly authorizing' one railroad to cross the tracks of another, without making proper provision for the protection of the constitutional right of property of the elder company, would be unconstitutional and ineffectual as a grant of power.
    III. But the statutes of this State clearly provide" that one railroad company, even though it be a street surface railroad, cannot cross the tracks of a steam railroad, without the consent of the latter or the determination of commissioners duly appointed for the purpose of fixing the place and manner of crossing and the compensation to be paid therefor (Matter of Lake Shore and Michigan Southern R. R. Co., 89 N. Y. 442; Matter of Boston & Hoosac Tunnel R. R. Co., 79 Id. 64; Matter of Lockport & Buffalo R. R. Co., 77 Id. 557 ; s. c., 19 Hun, 38 ; Matter of New York, Lake Erie & Western R. R. Co., 44 Hun, 215; Cortland & Homer Horse Railroad, 31 Hun, 72).
    IV. The court properly dissolved the plaintiff’s temporary injunction in the exercise of a wise discretion. All of the equities of the complaint are positively denied by the defendant’s affidavits and under the circumstances an injunction will not be sustained where it is doubtful whether the plaintiff will ultimately be entitled to the relief demanded (Steinberg v. O’Conner, 42 How. 52; Cent. Crosstown R. R. Co. v. Bleecker St., etc. R. R. Co., 49 Id. 233; Shearman v. Hart, 14 Abb. Pr. 358; Secor v. Weed, 7 Rob. 67; Moser v. Polhamus, 4 Abb. Pr. N. S. 442; Olmsted v. Loomis, 6 Barb. 152 ; Hartt v. Harvey, 32 Id. Howe v. 55 ; Rochester Iron Mf’g Co., 66 Id. 592).
   Per Curiam.

The order vacated an injunction order which in effect declared the right of plaintiff to cross the road of the defendant without compensation or regulations prescribed as to the manner of crossing.

The defendant had an easement upon which the plaintiff sought to impose a burden without compensation. We are of the opinion that the plaintiff is not entitled to impose such a burden ás its road, built across the defendant’s track, would be, until the questions of compensation and manner of crossing are legally determined (Matter of Lockport, etc., 19 Hun, 38, 1 Redfield on Railways, 638; Howlett v. N. Y., West Shore, etc. Ry. Co., 14 Abb. N. C. 328 ; aff’d 28 Hun, 55; People v. O’Brien, 111 N. Y. 1; s. c., 18 Northeast. Rep. 692).

Order affirmed.  