
    Frederick P. Fox and Edward J. Keogh, Respondents, v. New York City Interborough Railway Company, Appellant.
    (No. 1.)
    First Department,
    April 6, 1906.
    Eminent domain'—condemnation of lands to lay street railroad.tracks -7-rule established for valuing property in determining whether consent of owners of onerhalf thereof has been obtained.
    In- considering the value of property under the State Constitution (Art. 3, §18) and section 91 of the Railroad Law-to determine whether' the. consent of the owners of one-half, in value of the property bounding upon a proposed street railway has been obtained, the value of each entire parcel of land with the buildings thereon as appearing upon the assessment roll “'completed last before the local authorities shall have given their assent ” is final and . conclusive.
    A parcel consisting of one entire tract extending back from the highway should not be divided in making such valuation.
    ■ Appeal by tile defendant, the New York City Interboroügh" Railway Company, from an order of -the Supreme 'Court, made at the -New York Special Term and entered in the office of the' clerk of the county' of New- York on the 6th day of November, 1905.
    
      George W. Wickersham [Noel Gale with him on the brief], for the appellant.
    
      William W. Niles [Niles & Johnson, attorneys], for the respondents.
   Clarke, J.:

This is an appeal from an order'continuing, during the pendency of the action, an injunction restraining the appellant, from con-' structing its street surface. railroad in East Two Hundredth street, betwéen Jerome avenue and the Southern Boulevard, in the borough of the Bronx. The respondents, alleging themselves; to be owners- of two pieces of property situate on th,e portion of- East Two, Hundredth street mentioned, brought this action for the purpose. of permanently restraining the appellant from so constructing its railroad upon this street, and of compelling the removal of such part of the road as had been already built. ■ The action is based upon the alleged failure of the appellant to obtain the consents of the owners of one-half in value of the property bounded upon this part of East Two Hundredth' street, as required by section 91 of the Eailroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1905, chap. 650). The only question litigated and determined upon the motion was as to the value to be placed upon a somewhat extensive parcel of land owned by the Ursuline Convent and occupied by it for the purposes of the Ursuline Academy. The convent property lies oil the south side of' East Two Hundredth street, and consists of one'compact parcel, somewhat oblong in shape, bounded on the north by East Two Hundredth street, 534 feet; on the west by Bainbridge avenue, 928 feet; on the south by East One Hundred and Ninety-eighth street, 528 feet, and on the east by Marion avenue, 816 feet. The plot is not intersected by any streets. It has no interior boundaries or divisions, natural or artificial. It is situated in a suburban neighborhood and is used as an entirety for a single purpose — that of the convent school. The academy building, situated near the center of the lot,, is an integral part of the property. This building is situate 325 feet from the north line of East Two Hundredth street, and the main entrance for both carriages and foot passengers opens from that street.

The appellant has obtained the consent of the convent to the construction of its road. The determination" of the proper valuation of this property is essential, both in ascertaining the total valuation of the property bounded on East Two Hundredth street and in computing the value of the property as to which consents have been given.

The Constitution provides (in art. 3, § 18) that the Legislature shall not pass a private or local bill in any of the following cases : * * * Granting to any corporation, association or individual the right to lay down railroad tracks. * * * The Legislature shall pass general laws providing for the cases enumerated in this section * * *. But no law shall authorize the construction or operation of a street railroad except upon the condition "that the consent of the owners of one-half in value of the property bounded on * * * that portion of a street or highway upon which it is proposed to construct or operate such railroad be. first obtained * * In accordance with that mandate of the Constitution a general law has been passed, known as the Eailroad-Law. Section 91 thérépf (as amd. supra) is as follows: “ Consent of property ■owners and local authorities.— A street surface railroad, ,or extensions or branches thereof, shall not be built, extended or .operated unless the consent in writing, acknowledged or proved as are deeds entitled to be recorded, of the owners in cities and villages, of one-half in value, * * * of the property-bounded on '* * * that portion of a, street or highway upon which it is proposed to build or operate such railroad, extension, or branch shall have been first obtained. * * * The value of the property above specified shall be ascertained and determined by the assessment roll of the city, village or town in which it is situated, completed last before the local authorities shall have given their consent.”

The- franchise. from the city of New York was perfected on March 31, 1903, so that the assessment- which must govern is that of the year 1902. (See Greater N. Y. charter [Laws of 1901, chap. 466], § 907.) Upon the basis of that assessment, the total value of the property bounded on that portion of East Two.Hun.-dredth street upon which it is proposed to build appellant’s, railroad is $552,000. The convent property was assessed as one parcel at $175,000. The appellant had, at the time the'action was brought, obtained the consents of the -owners of property bounded on said street of the aggregate assessed value of $302,000, and hence, upon those valuations so made, had the consent of the owners of property of more than one-half the assessed value.

The appellant claimed in the court below -that this convent property should be valued at the amount found upon the assessment roll. The respondents claimed that such portion of the property as was contiguous to East Two, Hundreth street and for a depth of 100 feet only should be taken. The learned court declined to.take either view, but proceeded to make an arbitrary division- of the - property- and valuation of such division of its own, saying : ■“ In the present case the figures are such that it is not necessary to enter-into any niceties of valuation or computation in making an apportionment, An approximation can be made, somewhat arbitrarily-and roughly it may be, but one that will err, if at all, in favor of the defendant, and yet give a result in favor of the plaintiffs.” The court then fixed the .value of the land it considered entitled' to exercise the power of consent at $120;000? and, subtracting the remaining $55,000 from the assessed total valuation and from the total. consents^ by this process determined that the defendant did not have the necessary consents of the owners of one-half of the property. Thereupon, as appears in the record upon the appeal from the second order herein, argued at the same time (Fox v. New York City Interborough R. Co., No. 2, 112 App. Div. 910), the appellant proceeded to obtain the consent of an additional property owner, the assessed valuation of whose property brought the consents above one-half of the amount indicated by the court. Thereupon the court said that it had- no intention in the decision heretofore made in this case to hold that $120,000 of the total assessment should be counted as having a voting power on the street in question. On'the contrary, I think that $100,000 would be excessive.” And it is not impossible that if the appellant, accepting this figure as correct, should proceed to obtain additional consents, another valuation would be indulged in to defeat its attempt to build this road.

The appellant asks this court to lay down a rule, in accordance with which the rights of the railroad and the rights of the property holders can be clearly ascertained. The mere statement of the facts in the case at bar shows how desirable it is that there should be such a rule. The situation is further illustrated by the facts set forth in Ebling Brewing Co. v. New York City Interborough R. Co. (112 App. Div. 912), argued,upon the same day as the case at bar. In that case the positions of the property holders and the railroad' company were reversed — the property holders endeavoring, to induce the court to consider a large parcel of land with the build- ‘ ings thereon, used for one purpose and held in one ownership as an entirety, to defeat the construction of the road, and the railroad endeavoring to have the court arbitrarily divide the property in order to enable it to show the necessary consents. There should be no such uncertainty in the law if it be possible to avoid it. There should be one rule to be applied in all cases to each, party. Sometimes its application will make for the supposed advantage of one, and sometimes of the other. Such a question should not be*left in nubibus, depending for its decision on the length of the chancellor’s foot, or throwing a question of fact difficult of correct determination into every case. This, question has not -been decided in any case which has been called to our attention or which our own researches have discovered, but we find in the Constitution and the s'tatute satisfactory ground for the proper rule.

The Constitution says (Art. 3, §18), “the consent of the owners of one'-half in value of the property bounded on * * *. that portion of a street or highway upon which it is proposed to construct * * * such railroad.” The statute (Railroad. Law, § 91, as afnd. supra) says, “ the consent * * * of the owners ■ * .’* * of one-half in value * * * of the property bounded on * * * that,portion óf a street or highway upon which it is proposed, to build * * * such-railroad; * * * The value of the property above specified shall be ascertained and determined by the assessment roll of the city *' * * completed last before the local authorities shall have given their consent.” It is evident, that it was the intention of' the Legislature to remove, this question of valuation-from the realm of uncertainty into that of certainty. It fixed the assessment completed prior to the consent of the local authorities —: an assessment made by public officers for other purposes, to wit, taxation — as the fairest and surest standard. The'consent was of the owner of property bounded on the particular part of the street, with no limitation as to size; location or use. The provisions apply to cities, towns and villages, to city, streets and country highways, to 25 by 100,-foot city lots, to suburban estates and cofintry farms, if they are held in-one ownership and are bounded by the street or highway. We believe it to have been the intention of the Legislature, and we" announce'it as the rule of. law,, that in considering the question of -the valuation of .property for the purpose of determining whether the necessary consents have; been obtained, the value of each entire parcel of land, with the buildings thereon, as appearing upon the assessment roll for the appropriate year, is final and conclusive. . ,

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, McLaughlin, Laughlin and Houghton,. JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and' motion denied, with ten dollars costs, Order filed.  