
    Geneva and Waterloo Railway Company, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Railroad Law —application of a street surface road to cross a steam railroad— the consents of the abutting owners and local authorities are a prerequisite—sufficiency of such consents— estoppel in one proceeding by the decision of another — two proceedings in one appeal booh, improper.
    
    The consents of abutting owners and of the local authorities, as prescribed by the Railroad Law (Laws of 1890, chap. 565, § 91), are conditions precedent to the maintenance, under section 12 of that act, of a proceeding taken by a street surface railroad for the appointment of a commission to determine the mode in which such road shall cross the line of an existing steam railroad, and the amount of compensation to be made therefor.
    A recital contained in the order of determination, made in such a proceeding, that the highway commissioners, before acting upon an application for the consent of the town to the construction of a street surface railroad, gave public notice of a hearing thereof in the manner required by the statute, is prima, facie evidence that the commissioners discharged their duty in this respect.
    The consent of the authorities of a town to the construction of a street surface railroad, which extends through the streets of two villages, and upon a town highway connecting such villages, is sufficient, so far as the portion thereof in the town is concerned, without showing the consent of the local authorities of the separate villages,
    A consent of abutting owners that a street railroad may be constructed by individuals is void.
    The fact that the same street railroad, in another proceeding taken by it against the same defendant, succeeded in procuring the appointment of commissioners to determine the mode of crossing and the compensation for crossing its tracks, does not estop the defendant from resisting a subsequent independent application to cross a steam railroad in which the defendant has some interest.
    The practice regulating the hearing of appeals does not permit two independent cases to be incorporated into one appeal book, but the record on each appeal should be printed by itself so that independent judgment rolls may be made up embracing the papers, and only the papers, applicable to each case.
    Appeal by the plaintiff:, the Geneva and Waterloo Railway Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Seneca on the 26th day of February, 1897, dismissing the proceeding, with costs, upon the report of a referee which separately stated the facts found and the conclusions of law. •
    
      This proceeding was begun January 18, 1895, to have determined the mode in which the plaintiff’s street railroad should cross the defendant’s steam railroad in the town of Waterloo, New York, ■and the amount of compensation to be made therefor, pursuant to section 12 of chapter 565 of the Laws of 1890 (the Eailroad Law), which provides that, in case the line of an existing railroad is intersected by the line of a new railroad, and the two corporations are unable to agree on the mode of crossing or on the amount of compensation to be made therefor, the mode of crossing and the compensation therefor shall be determined by commissioners appointed by the court.
    The plaintiff was incorporated March 18, 1893, under the Eailroad Law, for the purpose of constructing and operating a street surface railway seven miles in length from a point in North street, in the village of Geneva, thence easterly in said street to the east bounds of that village, thence easterly along the highway in the town of Waterloo to the west end of Main street in the village of Waterloo, thence easterly along said street in said village to a point known as Fox’s crossing. The length of the line in either of the villages, or the length of the line in the town of Waterloo, does not appear. It is alleged in the petition, and proved on the trial, that the corporations are unable to agree as to the mode of crossing or as to the compensation which shall be paid by the plaintiff to the • defendant for the right to cross.
    The defendant answered and alleged, among other things, that the plaintiff had not obtained the consents of the owners of the property abutting on the street or highway or the consent of the local authorities having the control of that portion of the street or highway on which the plaintiff proposed to construct and operate its railroad, as provided by section 18 of article 3 of the Constitution of this State, and by section 91 of the Eailroad Law, as amended by chapter 723 of the Laws of 1894.
    This allegation in the answer presents the only questions raised on this appeal., By an order entered January 30,1895, the issues joined by the petition and answer were referred to a referee to hear and determine, who found as a fact that the plaintiff, prior to the beginning of this proceeding, had not obtained the requisite consents of the owners of property bounded on that part of the public road through which the plaintiff’s street railroad is proposed to be built, or the consent of the local authorities having control of that portion of the road; and as a conclusion of law that such consents by the property owners and by the local authorities were conditions precedent to the right of the plaintiff to maintain this proceeding. Upon this report a judgment was entered February 26, 1897, dismissing the proceeding, with costs, from which the plaintiff appeals.
    
      Charles A. Hawley, for the appellant.
    
      Albert H. Harris, for the respondent.
   Follett, J. :

The plaintiff’s road has been constructed and is in operation between the termini mentioned in the preceding statement of facts, running its cars over defendant’s.tracks. It appears by a report of this case in 90 Hun, 9, and 152 New York, 632, that March 20,1895, an order was entered denying the defendant’s motion to vacate an order previously made by the Special Term, pursuant to chapter 239 of the Laws of 1893, permitting the plaintiff to lay its tracks across defendant’s road upon giving an undertaking as prescribed by that act. This order was affirmed by the General Term (90 Hun, 9) arid by the Court of Appeals on the opinion of the General Term (152 N. Y. 632). In considering the appeal from that order it was held that it appeared that the plaintiff was duly organized, had served its petition for the appointment of commissioners, and that, so far as it appeared, the organization of the plaintiff, and the preliminary proceedings following it were regular and valid, and that it was in a position to insist upon the statutory right to cross the defendant’s tracks. The effect of these adjudications would seem to be that the plaintiff was in a position to enforce the statutory right of a new railroad to cross an existing one, and that nothing was left for determination except the mode of crossing, and the compensation to be paid therefor. Flowever, these" orders are not contained in the record before this court, which has no knowledge of their terms, and it is not asserted by the plaintiff that by these orders its right to cross defendant’s tracks has been established in this very proceed-lug. It may be that the questions now presented were expressly reserved by these orders. These orders not being a part of the record, no effect by way of estoppel can be given to them.

It must, I think, be regarded as settled by the decisions of the courts of this State that the consents of abutting owners and of the local authorities, prescribed by the 91st section of the Eailroad Law, are conditions precedent to the right of the plaintiff to maintain this proceeding. (Matter of Saratoga Electric Ry. Co., 58 Hun, 287; Matter of Rochester Electric Ry. Co., 57 id. 56; affd., 123 N. Y. 351; Colonial City T. Co. v. Kingston R. R. Co., 15 App. Div. 195 ; affd., 153 N. Y. 540.) The case first cited was to fix the mode of and compensation for crossing the tracks of the Delaware and Hudson Canal Company by the plaintiff in a street in which the plaintiff constructed a street railroad. Commissioners were appointed by the Special Term, but the order was reversed by the General Term because it was not alleged in the petition that the plaintiff had acquired the consents of the abutting owners on the street crossed by the defendant and in which the plaintiff proposed to construct its street railroad. The second case cited was a proceeding to acquire by condemnation the lands of a private owner lying within the bounds of a public highway for the purpose of constructing a street railroad. Commissioners were appointed by an order of the Special Term, which was reversed by the General Term, and the decision of the General Term was sustained by the Court of Appeals on the ground that before proceedings could be instituted to acquire an easement in land in a highway, the plaintiff must allege that it had obtained the consent of the local authorities having control of that portion of the highway upon which it was proposed to construct or operate such street railroad — that such consent was a condition precedent to the right to maintain the proceeding. The last case cited was a proceeding, under section 102 of the Eailroad Law, by a street railroad to fix the compensation which it should pay for the right to run for 870 feet on the tracks of the defendant, another street railroad in Broadway in the city of Kingston. The Special Term made an order appointing commissioners to determine the compensation which should be paid by the plaintiff to the defendant for the use of its tracks, which was reversed by the Appellate Division, and its decision was sustained by the Court of Appeals on the ground, that the proceeding could not be maintained without first acquiring the consents of the local authorities having control of that street, and of the owners of property abutting thereon, that the plaintiff might use the 870 feet of track of the defendant in that street. It is distinctly stated by the Court of Appeals that these consents are conditions precedent to the right of plaintiff to maintain the proceeding. It is true that the application in the case at bar is made under section 12 of the Railroad Act, while the application in the Kingston case was made under section 102 of the same act. But I am unable to see any reason for a distinction between steps which must be taken under the statute, in order to entitle a plaintiff to have commissioners appointed to fix the mode of, and the compensation to be paid for, crossing another road, and the application to determine the compensation which the plaintiff shall pay to another railroad for running a short distance on its tracks.

The questions now arise, had the plaintiff acquired, before this proceeding was begun, the consent of the local authorities having charge of the highway, and the consents of the owners of property abutting on the highway ?

March 21, 1894, the three commissioners of highways of the town of Waterloo, by an instrument in writing, signed and acknowledged by them, and filed April 10,1894, in the office of the clerk of the county in which that town is situated, consented to the construction by the plaintiff of a street railroad in the highway extending from the west boundary of the town of Waterloo eastward to the west boundary of the village of Geneva, said highway being a continuation of, and connecting North street in the village of Geneva with Main street in the village of Waterloo. This order or determination recites that, before acting upon the application, the commissioners gave public notice thereof and of the time and place when and where it would be first considered, by a notice published according to law, for at least fourteen days in a newspaper published in the town of Waterloo. This recites a compliance with the provisions of section 91 of the Railroad Act, regulating the proceedings of local authorities in determining the question. It is urged by the defendant that there was no proof of the publication of the notice which, by section 92, must be published. The highway commissioners were public officers engaged in the discharge of a public duty, and, in the absence of proof to the contrary, it will be presumed that they discharged those duties in the mode pointed out by the statute. The recital in the order was prima faeie evidence of the steps taken, and it is conclusive unless rebutted by proof, the burden of which was on the defendant. The determination of the commissioners does not deprive any individual of a private right. The rights of individuals are otherwise protected, and the determination simply affects the rights of the public which are committed to the charge of the commissioners; and the cases holding that, in proceedings under statutes to divest the title of one person and transfer it to another, the practice prescribed by the statutes must be strictly pursued, and that the recitals hi such proceedings of the regularity of practice therein are not evidence against owners of property, are not in point.

It is also contended, in behalf of the defendant, that the plaintiff was bound to show that it had obtained the consents of the local authorities of the villages of Waterloo and Geneva to the construction of the railroad in the streets of those villages. This contention cannot be sustained. By the 91st section of the statute it is provided that the authorities in villages may consent to the construction of a proposed railroad in the streets of villages, and that in towns commissioners of highways are the local authorities referred to in respect to highways, and that their consents shall be obtained. The authorities of a village cannot consent for the authorities of a town, nor vice versa, and the consent of one set of authorities is in no wise dependent upon the consent of another set of authorities; and I am of the opinion that the consent of the local authorities of the town of Waterloo was sufficient without proving that the local authorities of the villages of Geneva and Waterloo had consented to the construction of the railroad in the streets of those villages.

It is conceded that the consents of abutters appearing on Exhibits Nos. 15 and 16 represented the'necessary amount of property abutting on the highway occupied by the plaintiff’s railroad in the town of Waterloo, as such property was valued upon the assessment roll of that town in the year 1893. Exhibit No. 15 was executed by thirteen abutters on the 15tli of May, 1894, whereby they consented to the construction of a railroad in the highway by the plaintiff, which had previously been incorporated. This consent was duly acknowledged, and its sufficiency in form is not challenged; but it is conceded that the abutters who signed that consent did not represent the requisite amount of property. Exhibit No. 16 was executed December 30, 1892, before the plaintiff was incorporated, by which thirty persons owning property abutting on said highway consented that George Miller and George M. Reed, their legal representatives and assigns, might construct a street railroad within said highway. After this plaintiff was incorporated, and on the 13th day of April, 1893, George Miller and George M. Reed assigned the consents on Exhibit No. 16 to Samuel M. Hamill. The secretary of the plaintiff testified that at some time (the date not appearing) Hamill assigned these consents to the plaintiff, which assignment had been lost. Assuming that the assignment was executed before this proceeding was begun, I am of the opinion that the consents assigned did not comply with the Constitution and the statute, which seem to contemplate that the consents of the abutting owners shall be given to a corporation authorized to construct a railroad in the street or highway. This consent is for the protection of the rights of all the owners of property abutting on the street or highway, and the majority cannot bind the minority unless the provisions of the Constitution and the statute are strictly pursued according to the spirit and intent of those provisions. It seems to me that it would be contrary to public policy and to the spirit of those provisions to allow individuals to acquire the requisite number of assents for the construction of a railroad by any corporation thereafter to be organized, and then, as they might, sell them to the highest bidder.

No corporation is named in Exhibit No. 17, nor is it stated that a corporation was to be organized. The consent does not describe between what points the railroad is to be constructed, but simply provides that Miller and Reed may construct a railroad in the highway. Miller and Reed Avere not authorized by any statute of this State to construct a railroad in the highway, and they had no right to construct one (Fanning v. Osborne, 102 N. Y. 441), and the consents of ihe abutting OAvners that Miller and Reed might construct a railroad were void, and Avere not validated by being subsequently assigned to the plaintiff. The cases of which Sixth Avenue Railroad Company v. Kerr (72 N. Y. 330) is a type, cited in support of the proposition that Miller and Reed had power to construct the railroad, arose under special statutes, passed before the amendment to the Constitution adopted in 1874, and are not in point.

In Case v. County of Cayuga (88 Hun, 59) it was held that a consent given by an abutting owner that a railroad might be constructed in a street by an individual was void. It follows that the plaintiff had not acquired the necessary consents of the owners of property abutting on this highway before this proceeding was begun.

It is urged by the plaintiff that the issues in the proceeding have been adjudicated against this defendant in the proceeding instituted by this plaintiff against the Fall Brook Railway Company and the New York Central and Hudson River Railroad Company. This contention is based on the following state of facts : Two railroads crossed the highway in question a few hundred feet apart; the defendant owns and operates one of those railroads, the crossing of which is involved in this proceeding; the Geneva and Lyons Railroad Company owns the other railroad, over which the Fall Brook Railway Company and the New York Central and Hudson River Railroad Company have some rights, the nature and extent of which are not disclosed by the record. On the same day that this proceeding was begun the plaintiff began one against the Fall Brook Railway Company and the New York Central and Hudson River Railroad Company to have the mode of crossing the Geneva and Lyons railroad tracks fixed, and the compensation to be paid therefor determined. Both proceedings were brought to a hearing at the same Special Term. The Fall Brook Railway Company interposed an answer, but the New York Central and Hudson River Railroad Company did not answer, but filed a preliminary objection that the court had no jurisdiction of the subject-matter for certain reasons mentioned. The court overruled these objections, and, by an order entered February 19,1895, appointed commissioners to determine how the crossing should be made as against that defendant, and the amount of compensation which should be paid to it for the crossing. The issues joined by the plaintiff’s petition, and the answer of the Fall Brook Railway Company, were referred to the same referee appointed in this case. These two proceedings are entirely independent of each other, and the New York Central and Hudson River Railroad Company had the right to consent that the plaintiff might cross its railroad, and contest the right of the plaintiff to cross the Geneva and Lyons railroad, in which it had an interest. The facts adjudicated in the proceeding in which the New York Central and Hudson River Railroad Company did not answer, are not established as against the defendant in this proceeding, and the adjudication in the case in which the Fall Brook Railway Company and the defendant are parties is not binding on the defendant in this proceeding.

The practice adopted in these cases is wholly irregular, and is not authorized by the statutes or rules of practice. We have presented in one appeal book the records of two independent and wholly disconnected proceedings. The practice regulating the hearing of appeals does not permit two independent cases to be incorporated in one appeal book, but the record on each appeal should be printed by itself so that independent judgment rolls may be made up embracing the papers, and only the papers, applicable to each case. Different questions are presented by these cases, and one might have been reversed and the other affirmed, and it is difficult to see how a judgment roll could be made up in either case which would be reviewed in the Court of Appeals.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  