
    In the Matter of The Atlantic Avenue Elevated R. R. Co. for appointment of commissioners.
    
    
      (Court of Appeals,
    
    
      Filed December 20, 1892.)
    
    Railroads—Elevated.
    In proceedings to determine whether an elevated railroad should be constructed in certain streets in Brooklyn, it appeared that Atlantic avenue, a main thoroughfare, was obstructed by a surface railroad with fences along its sides and gates at the street crossings; that such crossings are dangerous; that such obstructions can be removed only by consent of the company if an elevated road is built; that most of the buildings are inferior and a large part of the property unimproved. Held, that the report of the commissioners in favor of an elevated road through said street, conditional upon a harmonious action with the surface road corporation by which the latter should be transformed into a street railway, and its operation by steam transferred to the elevated tracks, was proper, and their report should be confirmed.
    Appeal from judgment of the supreme court, general term, second department, affirming report of commissioners appointed to determine whether an elevated railroad should be constructed in certain streets in Brooklyn.
    
      Geo. F. Danforth, for app’lts; Wingate & Cullen, for resp’ts.
    
      
       Affirming 35 St. Rep., 37'.
    
   Finch, J.

Some of the property owners along the line of Atlantic avenue in the city of Brooklyn have refused their consent to the construction of an elevated railway passing in front of their premises, and have appealed from the order appointing commissioners to determine whether the proposed railway ought to be constructed, and also from the order confirming their favorable report. The company applying was formed under the rapid transit act of 1875, chap. 606, the requirements of which have been formally observed, but the plan dictated and to accomplish which the company was organized contains a condition which it is now argued is fatal to the enterprise, and renders the organization so illegal and defective as to destroy the powers sought to be conferred.

That condition grew out of the prior occupation and rights of a steam surface railroad operating upon the same avenue, and with whose consent alone the proposed elevated road was possible. That fact appears to be conceded on all sides, and it is quite apparent that such express consent was essential to the scheme formulated. In recognition of that necessity and to meet the consequent emergency the plan prepared contained the condition upon the asserted effect of which the objectors rely. That was in substance that the elevated road should not be authorized or permitted to be constructed, and should have no power to do the work, until it should first enter into an agreement with the surface companies transforming their road into a mere street railway and transferring its operation by steam to the elevated tracks. What' is now explicitly claimed is that the presence of this condition in the formulated plan or scheme prevented the elevated company from acquiring any franchise or capacity as a corporation, if that be true there is no foundation for the orders in question, but the objection must go to that full extent or fail in* the result at which it aims.

I think the contention is unsound and not warranted by a consideration of the terms and purpose of the statute. Obviously, the condition is a condition subsequent, and not one precedent, to the acquisition of the corporate life and vitality. The agreement directed is to precede construction, and not corporate existence. The company is to make the agreement, and it must exist first in order to agree at all. When it has acquired corporate life, and so is capable of acting, it is endowed, not with an absolute, but a conditional franchise, to become absolute upon the performance of one or more imposed conditions. Nothing, therefore, in the form of its creation makes its corporate life depend for its origin upon the execution of the prescribed contract.

Necessarily, the objection takes another form and becomes a contention that the enabling statute does not contemplate or permit the formation of a company whose franchise is conditional upon its own voluntary act But that phase of the objection is equally unsound. Always, and in every such case, the franchise granted is more or less qualified by conditions subsequent, the very office and purpose of which is the thorough protection of the public interests, and a failure to perform which will either prevent the absolute acquisition of the particular franchise granted, or forfeit it for non-compliance. Every requirement for construction within a specified period is of that natura It is a condition subsequent, which qualifies the franchise bestowed, and practically ordains that the company shall begin, as well as end, its work within the specified period, or have no power to do it at all. Sometimes, for the safety of property owners, the company has been required to deposit a guarantee fund before beginning its actual work of construction. It is quije certain, therefore, that neither the act of 1875, nor those like it, are violated or rendered ineffective by the grant of a conditional, instead of a complete and absolute franchise, or by the imposition of conditions subsequent upon the constructing corporations.

The objection, therefore, must be further narrowed, and end in an allegation that this particular condition carries the company formed outside of the purpose and scope of the act, and beyond its intended permission. But the condition here was necessary and inevitable. Without it no elevated road could exist on Atlantic avenue, and the danger and inconvenience of a steam surface road with its perilous and obstructed crossings would always be remediless, unless through the agreement required.

Nothing on the face of the rapid transit act purports to except from its operation Atlantic avenue or a street already occupied by a steam surface road. It makes no such discrimination, but applies to all. Its palpable purpose was to give rapid transit and yet secure the safety of the people and the normal use of the street by putting the steam trains above grade, and in no case could that purpose be more necessary and wise than where through its operation a steam road on the surface could be dislodged and lifted into the air. Shall we say that such purpose must fail because difficulties are encountered which make some unusual conditions necessary ? The act itself answers us. It authorizes the commissioners in terms to impose such conditions as to them shall seem expedient and to embody those conditions in the articles' of association tendered for acceptance. Doubtless those conditions should be such as leave the company within the reasonable scope and contemplation of the act, and those before us are such, because necessary and inevitable as applied to the construction and operation of an elevated road upon a street like Atlantic avenue. Nobody has ever supposed that the requirement of the law which makes the right to construct conditional upon the consent of the abutters or the equivalent approval of commissioners and the court renders the franchise inoperative or the corporate life impossible, and I can see no reason why consent of the abutters may be required, but that of rightful occupants of the roadway may not be. It should be remembered also, that if the condition had been omitted the law would have written it into the elevated charter and the company have been compelled to negotiate, as they are now compelled, for the consent of the surface roads. Plainly, therefore, we must say that the rapid transit act, in spite of its broad terms and purpose, cannot apply to streets already traversed by steam on the surface and the mischief must remain, or that, so applying, the necessary and inevitable conditions may be imposed.

What remains is the further criticism, founded upon that clause in the proposed agreement which forbids the maintenance of its road by the elevated company if the contract of the parties should be terminated. We are bound to assume that the stipulation was inserted by the commissioners from a conviction of both its necessity and wisdom. The surface roads would hesitate to part with their vested rights in exchange for trackage on the elevated road unless in case of the failure from any cause of the substituted right they should be at liberty to resume their original position, and some stipulation covering that contingency was evidently necessary to induce them to contract at all; and on the other hand, in the same emergency the interest of the people required that there should not be two steam roads, one elevated and one on the surface; operating on the avenue at the same time, and so the only one which could be stopped was to be discontinued. When it is considered that under the agreement the elevated road is to be constructed at very great expense, that the abutters will receive full compensation not only for injury resulting from the structure, but for most of the inconveniences flowing from its operation, that they will not be harmed by its discontinuance, that the. worst possible result will be a return to the old state of things, and that such result after the surface rails have been removed and the grooved rail substituted, after the fences have been taken down and the gates carried away and the steam traffic lifted to the tracks above, is little likely to occur, we ought not to denounce the condition as unreasonable and fatal to the scheme.

That scheme, as a whole, gives to Atlantic avenue the exact elevated railway which the rapid transit act authorized and contemplated so far as the inevitable necessities of the situation permit, and whatever there is about it that is unusual and peculiar springs from those necessities and is needed to surmount them.

The orders should be affirmed, with costs.

All concur.  