
    Louis B. Enton, Appellant, v. Coney Island and Brooklyn Railroad Company, Respondent.
    Second Department
    March 11, 1910.
    Railroad — excessive fares — penalty —mistake as to powers — consent of common council — effect of extending city limitsRailroad Law repealed by implication—burden of proof to show that charge was illegal—presumption.. ,
    
      It seems, that an action will not lie to recover the penalty imposed by section 39 of the Railroad -Law upon a' railroad which asks and receives more than the * lawful rate of fare, if the railroad exacted the fare in an honest mistake as to its statutory rights.
    Although .the consent of the common council of the former city'of Brooklyn to the construction of a street railroad whose line extended beyond the city limits into the town of Gravesend limited, the amount of fare to be ¡charged wdthin city limits to five cents, the railroad did not become limited to that charge for transportation over its entire line when by subsequent acts of legislation this and other towns through which the railroad ran became part of the city of Brooklyn.
    Chapter 324 of the Laws of 1861 authorizing the Coney Island and Brooklyn Railroad Company to-construct'and operate its road from the Fulton ferry to Coney Island, after having first obtained the permission of the= common council of the city of Brooklyn to construct a railroad within the city, “ or the consent of a majority of the owners of property fronting upon any street or avenue in said city,” and containing no provision as to the rate of fare to be charged, repealed pro tanto the provisions of the General Railroad Law tinder.which.said road was incorporated, relative to obtaining the consent of the city authorities. The consent of a majority of the owners of abutting property was as efficient to authorize the construction of the road as the consent of the common council. • • ;
    A person suing said railroad for the penalty prescribed by section 39 of the Railroad Law must establish by a fair preponderance of evidence that the charge' was illegal, andthere is .a failure of proof in this, respect where it is . not shown whether the railroad was operating under authority obtained by consent of the common council or by consent of owners of abutting property pursuant to said statute.
    Where a railroad has been constructed and operated for a long period of years, it is presumed that the construction and operation are in accordance with some lawful consent.
    Appeal by the plaintiff, Louis B. Enton, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendant, rendered on the 26th day of June, 1909.
    
      Robert Stewart, for the appellant.
    
      William N. Dyfonan [ Vine H. Smith with him on the brief], for the respondent.
   Burr, J.:

This action is brought to recover a penalty under the. Railroad Law (Laws of 1890, chap. 565, § 39), which provides that “ Any railroad corporation which shall ask or receive more than the lawful rate of fare, unless such overcharge was made through inadvertence or mistake not amounting to gross negligence, shall forfeit fifty dollars, to be recovered with the excess so received by the party paying the same.” If defendant was not justified in demanding the fare paid by plaintiff, it might be urged with much force that its action was the result of an honest mistake in the construction of its statutory rights. In such case this action would not lie. (Goodspeed v. Ithaca Street Railway Co., 184 N. Y. 351.) We prefer, however, to put our decision upon a broader ground. Defendant was incorporated in December, 1860, under the General Railroad Law, which provided that nothing in the act contained should “ authorize the construction of any railroad not already located in, upon or across any streets in any city, without the assent of the corporation of such city.” (Laws of 1850, chap. 140, § 28, subd. 5.) In its articles of incorporation the termini of the road were stated to be a point in and upon Coney Island, in "the town of Gravesend, and a point in the city of Brooklyn at or near the Fulton ferry. The distance from Fulton ferry to the city limits, as they existed at the time of its incorporation and for many years thereafter, was a little more than five miles, and the distance from the city limits to Coney Island was a little more than six miles. That portion of the route outside of the. limits of the city of Brooklyn was through the towns of Flatbusli, Flatlands and Gravesend. By various acts of - the Legislature the towns above mentioned were incorporated with and became part of the city of Brooklyn. ' (Laws of 1894, chap. 356 ; Id. chap. 449 ; Id. chap. 450.) Plaintiff contends that defendant is operating its road under a consent of the common council of the city of Brooklyn, which was on condition that “ the fare to be charged by said company for carrying passengers within the city limits shall not exceed the fare now authorized and determined by this Common Council for the Brooklyn City Railroad Company ” (which it was conceded was five cents), and that when the limits of the city were extended this provision became operative through the annexed territory, so that at the time specified in the complaint defendant was not justified in charging more than five cents fare for one continuous trip between the terminus of the road at Coney Island and the terminus of the road at Fulton ferry. . We have carefully examined every authority cited by plaintiff in support of his contention, and such others as we have been able to find, and there is no case in this or in any of our sister States which maybe deemed conclusively to uphold the same. There are, it is true, isolated expressions in the opinions in some of the cases which point in that direction,- but such language must be .construed with reference to the facts of the case under consideration. (Colonial City Traction Co. v. Kingston City R. R. Co., 154 N. Y. 493.) Two well-considered cases hold to the contrary. (People ex rel. Chope v. Detroit & Howell Plank Road Co., 37 Mich. 195; City of Detroit v. Detroit & Howell Plank Road Co., 43 id. 140.) In the former case, which was a proceeding by a bill in equity to abate a nuisance, it appeared that the charter of the defendant authorized it to erect tollgates at its' discretion, provided none should be placed within the limits of the city of Detroit. Defendant had erected a tollgate upon the line of its road, which, at the time of its erection, was without the city limits. Subsequently the boundaries of the city were extended so as tó include the locus in quo. The old gate having become dilapidated and out of repair, defendant started to erect a new one, and this action was brought to enjoin it from so doing. The court said: “ When the State gave the company the right to build their road from a point in the city, and the right to erect gates according to their reasonable discretion, but subject to the condition that none should be placed in the eity, it contemplated the city as it then was in respect to limits, and meant that the privilege given within the city should not extend so far as to allow gates to be set .up there, and on the other hand that the restriction should be confined territorially to the then fixed and known bounds of the city. The State could not have designed that as fast as it might enlarge the city boundaries, the defendant’s franchise covering the right to place toll-gates should be correspondingly annihilated and the gates themselves, thereby brought within the limits, be instantly converted into a public nuisance.” After the decision in that case, and evidently with a view of overcoming the effect thereof, an act was passed (Public Acts of 1879, No. 219) which, among other things, provided that “Bo plank road company * * * shall, without the consent of the local authorities, keep or maintain a toll-gate within the present or future corporate limits of any city, or village ;**.*. And if any plank road company or companies in this State are, at the time of the passage of this act, maintaining any toll-gate within the present corporate limits of any city or village, said plank road company or companies, are hereby required ■ to discontinue and remove said toll-gate beyond the limits of said city or village, within sixty days after they are notified by the municipal authorities to so discontinue or remove the same.” The city of Detroit then brought a mandamus proceeding (the second action above referred to) to compel the company to remove a tollgate which was outside of the city limits at the time of its erection, but which at the time when the proceeding was instituted was within, the limits of the city as extended. Judge Coolet, in an opinion concurred in by the entire court, held this act unconstitutional, although the general act under which defendant was incorporated contained a clause relating to the power of future amendment by the Legislature. The court said : “ But there is no well-considered case in which it has been held that a legislature, under its power to amend a charter, might take from the corporation any of its substantial property or property rights. * * *. It cannot be necessary at this day to enter upon a discussion in denial of the right of the government to take from either individuals or- corporations any property which they may rightfully have acquired. * * * It is immaterial in what way the property was lawfully acquired; whether by labor in-the ordinary vocations of life,, by gift or descent, or by making profitable use of a franchise granted by the State; it is. enough that it has become private property, and it is then protected by the ‘ law of the land.’ ”

Without discussing all of the cases cited by the learned counsel for the plaintiff, the principal ones are: Illinois Central Railroad v. Chicago (176 U. S. 646); People ex rel. Chicago v. Chicago Telephone Co. (220 Ill. 238); Indiana Railway Co. v. Hoffman (161 Ind. 593), and St. Louis Gaslight Co. v. City of St. Louis (46 Mo. 121).

In the Illinois Central Railroad case, which was an action brought by the city to enjoin the railroad company from constructing an engine house and other necessary structures appertaining thereto for the use of the road, over and across submerged lands of Lake Michigan, the court held in the first place that the grant to the company was not sufficiently broad to authorize it to appropriate and take possession of the lands in question. It is true the court said, if its grant were sufficiently broad to cover sutib lands, in view of a further provision therein that nothing contained in the act should authorize said corporation to make a location- -of their track within any city without the consent of the common council, that it could not make such location over lands which were within the boundaries of the city at the time that the act of location was attempted, although not within the boundaries of the city at the time that the charter was passed. -But in that -connection the court said: “ Had the company signified a. desire to take possession of these lands before the limits of - the city had been extended, it is possible that it might claim a . vested right to do so, though the boundaries were subsequently enlarged.” Much more must this be the case if the' company had not only signified a desire to take possession of such lands, but had actually done so. The court said further: There is nothing in these cases in conflict with those of Chope v. Detroit & Howell Plank Road Co., 37 Michigan, 195, and Detroit v. Detroit & Howell Plank Road Co., 43 Michigan, 140, in both of which it was held that a toll gate, lawfully erected upon land which was subsequently taken into the city, could not be declared a nuisance by reason of the extension of the boundaries, and that the same could not be abated without a violation of the Constitution.”

In the Chicago Telephone Company case consents had been given to the company by the authorities of towns and villages lying without the city limits to the erection of poles and the stringing of wires for telephone purposes. These consents contained no limitation as to rates. At about the same time a consent for a similar purpose was given do tlie same company by the municipal authorities of the city of Chicago, which did contain such limitation. Subsequently the boundaries of the city were extended, and an action was brought in the nature of quo warranto-to declare a forfeiture of the right of the telephone company because it was charging rates in the annexed territory in excess of that provided in the city ordinance. The case turned upon a construction of the consents given by the town and village authorities, and the court held that by the terms thereof they were limited by the corporate life of such towns or villages, and that inasmuch as after annexation the company had no right to retain the use of the streets in the annexed territory except under the general ordinance of the city of Chicago, the defendant could not be heard to say “ it will retain streets which it concedes it has no right to occupy except under the ordinance, and will not comply with the conditions of the ordinance.”

In the Indiana Railway Company case the action was brought to recover a penalty for refusing to issue a transfer to a person who boarded its car at a point within the limits pf the old city of South Bend, but whose destination was a point in territory annexed to the city after the resolutions authorizing the road to operate had been passed. Originally consent had been obtained from the city of South Bend for so much of the route as was within the city limits, and from the commissioners of St. Joseph county for so much of it as was without the same. The former required the giving of transfers, the latter did not. It appeared that, subsequently to annexation, in an action pending between the railroad company and the city of South Bend, the company had made a written proposition of settlement and agreed, as a part thereof, to issue transfer tickets free of charge to all persons requesting; the same who might board the cars at any point upon any of its lines within the limits of the city and whose destination might be any point, upon any other line of the company’s road within said limits. This proposition was accepted and the action discontinued. The court said: “ It is apparently insisted by counsel for appellant that the city of South' Bend, by annexing the part of the territory in which appellant, under the grant from the board of commissioners, had previously operated its road, abrogated and destroyed its rights acquired, by said grant, and, therefore, violated our fundamental laws. But whatever rights appellant'had in-said territory under its grant from the board of-commissioners were not impaired or'destroyed by the extension of the city boundary in question, but were changed by its agreement with the city to issue transfer tickets over its lines therein to all points within the city limits. Whatever rights it had to decline or ref use to issue transfers to persons carried over its road in said territory were merged in and controlled by the contract which it subsequently made with the city. If appellant desired to stand upon and avail itself of the rights which it had acquired in the territory in question, it ought not to have entered into the agreement and contract with the city in regard to the rate of fare and the right of passengers to transfer. The regulation of the question of fare and the transfer tickets to be issued rests upon the contract in this case between appellant and the city of South BendP

In the St. Louis Gaslight Company case the decision was put on the ground of estoppel. For a long period of years the gaslight company had asserted and successfully maintained its exclusive right to furnish gas in the territory annexed to the. old city by reason of a contract made by it with the city before annexation, which contract contained a provision both giving it an exclusive privilege of furnishing gas in the city of St. Louis and its suburbs, and regulating the price to be charged. The court held that, as the only basis'for its claim of. such exclusive right must be found in the •ordinance in question, if that ordinance conferred upon, the company such right, it must also be held to the conditions contained in it as to the price to be charged. •

Rot only does the doctrine contended for by the appellant appear to be without express support by any case decided within this State, ■ but in one case, decided by this department, there is a strong intimation to the contrary. (People ex rel. Brooklyn Union Gas Co. v. Littleton, 110 App. Div. 728.) In that case the court say: “ To sustain the order which this appeal brings up for review it is not necessary to assert the broad doctrine that a franchise to light the streets of a city extends with the .enlargement of the city so as to embrace territory not within its boundaries when the franchise was originally granted. That doctrine finds support in some of the language in the case of St. Louis Gaslight Co. v. City of St. Louis (46 Mo. 121), although there was an element of estoppel in that case sufficient of itself to sustain the conclusion reached. We should hesitate to affirm this order, however, if the adoption of this principle were necessary to uphold the position of the relator in the present case.” We are not prepared, therefore, to hold that the condition as to rates of fare contained. in the resolution above referred to extended beyond the limits of the city as it existed when it was given. But in addition to that, the evidence in this case fails to establish that the right of defendant to operate its road rests upon the consent above referred to. Shortly after its incorporation defendant, in accordance with the provisions of the Railroad Law, applied to the common council of the city of Brooklyn for consent to operate over that portion of its route which began at Fifteenth street in the said city, from a point at or near its intersection with the Brooklyn and Coney Island plank road, and continued through various streets and avenues to Fulton street. The last street specified was Water street, between Catherine ferry and Fulton street. Water street intersected Fulton street at Fulton ferry. A resolution granting such consent was adopted December 28,1860, but was vetoed by the mayor upon the ground that permission had' previously been given to another company to lay tracks, on Water street from Main to Fulton street, and that if two companies were permitted to lay tracks in the same street the public interest would thereby be made to suffer. Mo action was taken to override the .veto, but on the 21st of January, 1861, the common council passed another resolution in which defendant’s right to operate was made to terminate at Catherine ferry instead of Fulton ferry, thereby excluding Water street. It was this consent which attempted to fix the rate of fare within the city limits. This consent, among other things, also contained conditions as to the character of rail to be used and' the method of construction of the road, and required the giving of a bond in the sum of' $10,000 on the part, of the railroad company before any proceedings should be taken under it. On April 20, 1861, the Legislature passed an act entitled <‘An Act to authorize The Coney Island and Brooklyn Bail Boad Company ’ to corn struct their road, and to lay thereon rails of less weight than required by the general rail road act, and to widen and re-construct the bridge at Coney Island.” (Laws of 1861, chap. 324.) By that act defendant was authorized to construct and operate its road from' Fulton ferry to a point in and upon Coney Island, upon “ streets, roads and avenues designated and shown on maps or profile of said rail road made by Jarvis Whitman', city surveyor, and to lay thereon iron rails of a less weight than prescribed by the said general rail road law,” after “having first obtained the permission of the common council of said city to construct said rail road within the said city, or the consent of a majority of the owners of property fronting upon any street or avenue in said city, through or over which it is proposed to lay said rail road.” This act contained no provisions as to rate of fare to be charged. This act operated fro ternto to repeal the provisions of the General Bailroad Law relative to obtaining the consent of the city authorities. (Brooklyn City, etc., R. R. Co. v. Coney Island R. R. Co., 35 Barb. 364.) The consent- of a majority of the owners of abutting property was equally sufficient. There is no evidence ■ in this case from which we may determine under which authority defendant constructed its road. There is no evidence that the bond' required by the consent of the common council was ¡ever given. There is no evidence when the actual construction of the road began. There is no evidence with regard to the weight and character of the rails and whether they were such as were required by the General Bailroad Law and the consent of the common council, or whether they were such as were permitted by the special act. There is evidence that the road was constructed through Water street. It may be urged that there is no evidence of any consent by a majority of the property owners upon any of the streets or. avenues within the city nor of any consent of any local authorities outside of the old city limits. It does not appear that the latter consent was essential. But when a road has been constructed and operated for a long period of years, a presumption will arise that such construction and operation were in accordance with some lawful consent. (People ex rel. New York & R. Gas Co. v. Cromwell, 89 App. Div. 291; Paterson & Passaic H. R. Co. v. Mayor, etc., of Paterson, 24 N. J. Eq. 158.) Where, as in this case, there are two acts or ordinances under which defendant may operate within the city limits, one of which imposes no restriction as to rate of fare and the other of which contains such restriction, if an action is brought to recover the penalty for excessive fare charged, the burden of proof rests upon plaintiff who asserts the charge to be illegal to-establish by a fair preponderance of evidence under which authority defendant is operating. This case is barren of such evidence.

The judgment appealed from should, therefore, be affirmed, with costs.

Woodward, Jenks, Thomas and Rich, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  