
    
      In re Atlantic Ave. El. R. Co.
    
      (Supreme Court, General -Term, Second Department.
    
    December 10,1890.)
    Elevated Railroads—Location of Route.
    Commissioners appointed under the New York rapid transit act of 1875, (Laws 1875, c. 606,) to determine whether an elevated railroad should be constructed in certain streets in the city of Brooklyn, reported favorably. On application to confirm the report, it appeared that the main route was over Atlantic avenue, one of the thoroughfares of the city 6% miles long, and from 100 to 120 feet wide; that through the greater part of the avenue, a strip in the middle 28 feet wide was occupied by a double-track surface railroad used for numerous passenger and freight trains, with fences on each side, and gates at the cross-streets, rendering travel inconvenient and dangerous; that such obstructions could not be removed without consent of the railroad company, which could be obtained on the construction of the elevated railroad over the same strip; that the buildings along the avenue were inferior, and a great part of the' property was unimproved; and that ample compensation could be made for all injuries to private property. Held, that the report of the commissioners should be confirmed.
    Petition by the Atlantic Avenue Elevated Railroad Company for the appointment of commissioners under Laws N. Y. 1875, c. 606, to determine whether an elevated railroad should be constructed and operated by it on certain streets in the city of Brooklyn. Petitioner moves to confirm the report of the commissioners that such railroad ought to be constructed and operated.
    Argued before Barnard, P. J., and Dykman and Bartlett, JJ.
    
      Wingate & Cullen, (George W. Wingate, of counsel,) for petitioner. William D. Veeder and Carpenter & Roderick, for opposing property owners.
   Dykman, J.

This is an application for the confirmation of the report of the commissioners appointed to determine whether an elevated railroad ought to be constructed in certain streets in the city of Brooklyn, and although three separate routes are included in the scheme, yet the opposition to the report seems to be directed mainly against route Eb. 1, which' is projected over Atlantic avenue. That avenue is one of the great thoroughfares of the city of Brooklyn, and its condition is described in the report of the commissioners as follows: “ The condition of Atlantic avenue at the present time is this: The street is six and one-half miles long from the ferry to the city line. Between South ferry and Fifth avenue the. sidewalks are each twenty feet wide, and the road-way sixty, making the whole street one hundred feet ■wide. Between Fifth and Ciasson avenues the sidewalks are eacli twenty feet wide, and the road-way eighty feet, making the avenue one hundred and twenty feet wide. East of Ciasson avenue the width of the street is the same, but the sidewalks are twenty-six feet wide and the road-way sixty-eight feet. Between Flatbush avenue and the city line, a strip twenty-eight feet wide in the centre of the street is occupied by a double-track surface railroad, which is used by the Long Island Railroad Company for rapid transit trains, and for its general business, including its freight trains, and its trains to Manhattan Beach and Rockaway. This strip has fences on each side of it, and gates at each cross-street. These gates are closed as each train approaches, ■shutting off travel, and rendering travel inconvenient and dangerous. Man}-, it is alleged, are annually killed or injured by the road as now operated. The street east of Flatbush avenue is sparsely built upon. A few good buildings have been recently constructed, but a large proportion are stables or frame buildings, and the greater part of the property is unimproved. West of Flat-bush avenue the avenue is occupied mainly by old-fashioned and inferior buildings with stores, and apartments or tenements above. The steam surface road is now' operated by the Long Island Railroad Company on Atlantic avenue, east of Flatbush avenue, w'hieh it seems cannot be removed except by the consent of the company, is fenced in along its whole length, with gates at the street crossings, shutting off all travel during the passage of trains, and has practically destroyed the usefulness of Atlantic avenue, which naturally should be one of the great thoroughfares of the city of Brooklyn.” These lengthy extracts not only furnish a description of Atlantic avenue, but they enable us to recognize the necessity of providing relief for the avenue from the obstructions now resting upon it.

■ The occupation of a strip 28 feet wide, through the middle of the street from Flatbush avenue east to the city limits, by a surface railroad fenced on both sides, substantially destroys the street for the purposes of public travel; not only so, but it practically cuts the city into two parts. It cannot be crossed except at the street crossings, and then only at great peril, and some relief from such a situation becomes an obvious necessity. So it will be perceived that the commissioners were not entirely untrammeled in selecting and determining the best means to be adopted for the relief of Atlantic avenue. The Long Island Railroad Company had fastened itself upon the street, and secured the right to retain its possession, and the alternative was presented to the commissioners of reporting in favor of the construction of an elevated road by harmonious action with that corporation or- leaving the avenue in its present deplorable condition. They possessed no authority to require a depressed road, and could only report-in favor of or against an elevated structure. Under such circumstances, their determination was plainly a judicious one. By it they secure the removal of the surface obstructions and the restoration of that broad and capacious avenue to its original capacity and utility, and open up a great highway through the entire city from the East river to the outer bounds of the corporation. It is true the elevated structure is to be built and operated over the avenue, and damage and inconvenience will result to private parties from its construction and operation, but ample compensation can be made for all such injuries, and the resulting benefits to the ■city and the public will more than countervail all resulting loss and inconvenience. The great advantage to be secured by the successful consummation of the projects which these commissioners have approved will be the /freedom of the entire surface of the avenue and its adaptability for public travel. . This wide way is the straight line of passage through Brooklyn to Hew York city, and as such its importance can scarcely be overestimated. :So the adaptability of Atlantic avenue to the construction and operation of an elevated railroad is obvious at first glance. Its great width will reduce the extent of interference of the railroad with private interests-and enjoyment and public convenience to its lowest limit, and perhaps no street in the entire city is as suitable for an elevated railroad as Atlantic avenue. The other routes are dependent upon the main line through Atlantic avenue and follow its success. The elevated railroads already in operation in Brooklyn have been very beneficial to the city, and it is obvious that the road now under consideration will be at least equally helpful and advantageous. The removal of the surface obstructions and the establishment of a great line of public travel will bring to Atlantic avenue a degree of enterprise and prosperity unknown in its previous history. The report should be affirmed.  