
    The Village of Waverly, Respondent, v. Waverly, Sayre and Athens Traction Company and Others, Appellants.
    Third Department,
    May 5, 1909.
    Railroad — extension— franchise —- right to lay switches — right to connect with, intersecting roads — power of village trustees to determine manner of intersection.
    A track running from a railroad situate in the center of a street to the westerly side of the same street, and there connecting with another track is not a switch, but an extension of the line.
    Where the franchise of a traction company empowers it to operate a.railway upon certain streets in a village, one route being through Broad" street to Chemung, thence along and through Chemung, and also to construct necessary switches and turnouts, but gives no right to operate cars west of the center line of Chemung street, and the franchisees conditioned upon the center line of the railroad coinciding throughout with the center line of the street upon which it is constructed, the company has no right to extend its line west of the center of Chemung street, even though such extension be considered a switch.
    Where, however, two railroad's which enter a village have entered into a traffic agreement to- exchange cars and permit each to run over the tracks-of the other, and it is desirable that they unite, and ..only the space of sixty feet from the center line of Chemung street to the westerly line thereof separates them,, they may connect their tracks under subdivision 5, section 4 of the Railroad Law.
    Since the connection is proposed to be made in a public street, the village trustees have a right to participate in the determination, hut they have no right to interpose unreasonable or unusual- conditions upon the railroads, and if no agreement can be made between the parties, the Supreme Court must, determine the point and manner of the intersection.
    Appeal by the. defendants, the Waverly, Sayre and Athens Traction: Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 18th day of March, 1908, upon the decision of the court rendered after a trial at the Tioga- Special Term granting an injunction.
    The defendant Waverly, Sayre and Athens Traction Company -is a corporation operating a street surface railway in the village of Waverly and its lilies extend through Waverly and South Waverly to Sayre and Athens in Pennsylvania. In 1893 the trustees of the plaintiff granted a franchise upon certain conditions to a corporation known as the Susquehanna Valley Electric Traction Company to operate a street surface railway upon certain streets of the village described therein; one route being “ through Broad street to Chemung street; thence along and through Chemung street, to Ithaca street, * * * ” and “ also to construct such switches and turnouts as may. be necessary for the convenient and useful working of the street railroad.” Ho part of the route described in such franchise is located west of the center line of Chemung street. • One of the conditions upon which the franchise was granted was that “ the center line of such railroad shall at every point along its route, except as otherwise designated by this Board of Trustees, coincide with.the center line of the street or avenue upon which it is constructed.”
    The defendant Waverly, Sayre "and Athens Traction Company succeeded to the rights, privileges and franchises of said Susquehanna Valley Electric Traction Company in 1894. The defendant Elmira, Corning and Waverly Bailway is a corporation Which, at the time of the trial, was engaged in the construction of a railroad running from Waverly westerly through Elmira to Corning. The contractor for such construction is the defendant Powers & Mansfield Company. Broad street is one of the principal thoroughfares in the plaintiff village, and intersects Chemung street at right angles. The tracks of the, defendant Waverly, Sayre and Athens Traction Company run along the center of Broad street westerly to Chemung street, where they turn into and extend northerly along the center line of Chemung street. That company has also built á dine on a private right of way, extending westerly from the westerly line of Chemung street near the northerly line of Broad; street as that street is continued about 390 feet in a oul de sac westerly of its intersection with Chemung street, and such line constructed on said private right of way connects with the line of the Elmira, Corning- and Waverly Railway at a point about 600 feet from the westerly line of Chemung street. On April 30, 1906, the traction company and the company operating the railway entered into a trackage and traffic agreement for their mutual advantage, under which they agreed to make connection between their respective tracks. Eone of the defendants has obtained any consent or permission from the plaintiff to build, operate, maintain or extend the railroad or tracks in question. On the night of October 12, 1906, a little before midnight, a-body of between 200 and 300 Italian laborers came to the intersection of Broad and Chemung streets and commenced digging up the street west of the tracks of the traction company on Che-mung street and north of its tracks on Broad street. Such laborers were under the direction of an employee of the Powers & Mansfield Company and were the same men who were at that time employed in the construction of the Elmira, Corning and Waverly Railway Company line west of Waverly, and they were employees of the Powers & Mansfield Company. The president of the village appeared upon the scene and called out special policemen and the members of the fire department and the laborers were driven off the street and were not permitted to complete the construction of the tracks begun by them at that place. This action followed and the court after a trial has found that the carrying out of such work constituted a nuisance, that in attempting to do it the defendants were trespassers, and has granted a judgment containing a permanent injunction enjoining the defendants from constructing a railroad at the point in question without first having obtained the consent of the local authorities having control of the streets, and from such judgment all the defendants have appealed.
    
      Frederick E. Hawkes, for the appellant Powers & Mansfield Company.
    
      Thomas J. Keenan, for the appellant Waverly, Sayre and Athens Traction Company.
    
      Frederick Collin, for the appellant Elmira, Corning and Waverly Railway.
    
      H. D. Hinman and Frank A. Bell, for the respondent.
   Chester, J.:

The Waverly, Sayre and Athens Company insists that under the franchise to the Susquehanna Talley Electric Traction Company to which it succeeded, it has the right to construct the tracks in question because of the permission therein contained to construct such switches and turnouts, as may be necessary for the convenient and useful working of the street railroad. It is not argued that the proposed construction is a “turnout” in the commonly understood meaning of that term, that is, a track in addition, to a single track to permit cars to pass each other. But it is claimed that it is a switch. At the point where the movable rails of the diverging tracks connect, it undoubtedly is a switch,, as that term is ordinarily understood, but from that point and especially from the point where the proposed diverging tracks separate from the present tracks, to the west line of Chemung street, can it fairly be regarded as a switch? We think not, and that the learned trial court, was correct in holding that it was not, but that it was an extension of the line instead. A track like that appears to have been so regarded by the traction company in its petition to the trustees of the plaintiff for leave to construct a railroad from the intersection of its line at Broad and Chemung streets in a westerly direction along Broad street, where that proposed line was described to be “ an extension of its. present tracks,” and where it was said that it. is necessary pursuant to the laws of the State to obtain the consent of such trustees to enable it to construct, maintain and operate “ such extension.”

The fact that'the defendants took the law into their own hands and undertook under cover of night to lay down the'tracks in question until they were prevented by the public authorities, is convincing proof that they then supposed that they had no lawful right to tear up the street at that place, and that they then believed that they were engaged in laying an extension rather than a switch1.

But whether it is a switch or an extension the defendant traction company, as the successor of the rights of the Susquehanna Talley Electric Traction Company, had no right to lay the track in question, for the reason that such franchise only granted the right to construct railroad lines in the center of the streets on the routes therein described. One of these was located on Chemung street. The franchise, therefore, limited the operation of the road to the territory east of a track laid in the center of that street, and gave no right to construct or operate a road west of the .track so laid. The pi’oposed track runs to the west thereof, and is, therefore, outside of the limits of the franchise. If that phase of the case alone is to be considered, it would appear that the judgment enjoining the construction until the consent of the village trustees is obtained is proper.

But another situation must be taken into account, and it is one in which not the parties alone, ;but the public are concerned. The traction company is lawfully operating, its road from Athens in Pennsylvania to Waverly, and through Broad street to Chemung street in Waverly, and has a short piece of track on its own land extending westerly of Chemung street to and uniting with the tracks of the Elmira, Corning and Waverly Bail way, which has in process of construction a road from Waverly to Corning. The latter road appears to have the lawful right to operate in Waverly, for while it has not received the consent of the local authorities, it crosses no streets, and is not operated on any highways of the village, but is constructed there wholly upon a private right of way. The only thing needed to unite these two roads is the construction of the tracks in dispute here, a distance of about sixty feet.

The traction company and the railway company have entered into a traffic agreement by which, for their mutual advantage, they have agreed to exchange cars and permit the running of them over each other’s road.

The Legislature,. in the promotion of the public interests, has provided means for compelling the uniting of intersecting roads. Pursuant to subdivision 5 of section 4 of .the Bailroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676) aüy rail road company is given ■ the right “ to cross, intersect, join or unite its railroad with any other railroad before constructed at any point on its route.” It is also provided in section 12 of the Bailroad Law (as amd. by Laws of 1892, chap. 676) that “Every railroad corporation whose road is or shall be intersected by any new railroad shall unite with the corporation owning such new railroad in forming the necessary intersections and connections, and grant the requisite facilities therefor.” Here the roads in question have agreed upon the method and are seeking to make the connection, but the trustees ■ of the plaintiff who control the street where the connection must be made stand in the' way. It is urged on behalf of the plaintiff that these are not intersecting roads within the meaning of the statute, but it has been held in this department that although the roads do not in fact intersect, but come so near together that it • becomes desirable, for any reason, that one shall join or make con- ■ nections with the other, authority is found in subdivision 5 of section 4 of the Railroad Law for that purpose. (Jennings v. D., L. & W. R. R. Co., 103 App. Div. 164.)

We think, therefore, a case is presented which is within the beneficent, purpose of the statute.

Nevertheless, where the connection is proposed to be made in a public street, as stated in the recent case of Village of Fort Edward v. H. V. R. Co. (192 N. Y. 139): “ While the railroad' companies have the right to intersect their tracks for the purpose of exchanging cars from one road to the other, yet the -village trustees have the right to participate in the determination of the place and manner of making such intersection,”

In determining such place and manner the trastees would have no right to impose unreasonable or untisual conditions upon the roads, or conditions intended to defeat or prevent the uniting of their tracks.

The trustees have the right, however, and it is their duty, as. stated in the cáse last cited, “to guard and preserve the streets from unnecessary encroachments or dangers to which the traveling public may be subjected,” and to see that the manner of - connection is such as will interfere as little as possible with thé rights of travelers on the street and on the sidewalk which will necessarily be crossed by the railway tracks if laid at the point in question.

■ But the defendants and the public have the right under reasonable conditions pursuant to law to have these two railway systems United.

Here the two railroads have agreed as to the intersection, but the' trustees of the village have not agreed or given their consent thereto. In the case cited the Court of Appeals construed section 12 of the Railroad Law in connection with section 11 thereof, which provides, among other things, that no railroad corporation shall construct its road across, upon or along any street in any incorporated village without an order of the Supreme Court of the district in which such street is situated, and held that if the railroad corporations in question and the municipal corporation, as represented by its trustees, are. unable to agree as to the point and manner of intersecting the tracks of the two companies in the street, the duty devolves upon the Supreme Court to determine the same.

We think, therefore, that the judgment should be modified so as to provide that the defendants shall be enjoined from constructing the railroad in question until they shall agree with the local authorities upon the place and manner of making the intersection, and in case they are unable to agree until the court, upon application properly made, shall determine as to the place and manner of the intersection, and as so modified affirmed, without costs to any party.

All concurred; Smith, P. J., in result.

Judgment modified so as to provide that the defendants shall be enjoined from constructing the railroad in question until they shall agree with the local authorities upon the place and manner of making the intersection, and in case they are unable to agree until the court, upon application properly made, shall direct as to the place and manner of the intersection, and as so modified affirmed, without costs to any party.  