
    In the Matter of the Petition of the Terminal Railway of Buffalo, Respondent, under Sections 60 and 62 of the Railroad Law, etc., as to Its Highway Crossings in the Town of Cheektowaga, Erie County, Appellant.
    Fourth Department,
    November 12, 1907.
    Railroad Law — grade crossings—jurisdiction, and powers of commissioners, .
    Section 60 of the Railroad Law, providing that all steam surface railroads hereafter built, ' ‘ except additional switches and sidings,” must he so constructed as to avoid all public crossings at grade whenever practical to do so, empowers the Board of Railroad Commissioners to eliminate grade crossings over sidings ' and switches on the application of a railroad. The objection that the Commission cannot change grades over “additional switches and sidings” is available only to the railroad.
    Under section 62 of the Railroad Law the Board of Railroad Commissioners has complete jurisdiction, subject only to judicial review, to determine how grade crossings shali be eliminated and may close a highway and divert travel to another highway and change the grade of either.
    When several parallel streets extending across a number of railroad tracks are a public danger the Railroad Commissioners have authority to order the construction of a viaduct over the tracks, to determine how many viaducts shall be constructed, and may require that traffic upon some streets shall be diverted into viaducts over other streets, especially so when the railroad stipulates to pay all the expenses of construction and damages resulting to property owners.
    Kruse, J., dissented.
    Appeal by the Town of Cheektowaga, Erie county, from a determination of the Board of Railroad Commissioners of the State of New York, made on the 30th day of April, 1907, and filed in the office of the clerk of said Board, relating to the manner of .crossing the tracks of the petitioner, located in said town,
    
      The proceeding was instituted by the petitioner, the Terminal Railway of Buffalo, on or about the 3Pth day of November, 1906, by filing its' petition with the Board of Railroad Commissioners, in which it was alleged in substance that the petitioner is a steam -surface railroad corporation, organized and existing under the laws of the State of New York, with a double-track railroad extending from the village of Depew to the village of Blasdell, all within the county of Erie; that the petitioner-intends and is now engaged in building extensive railroad yards in the towns , of Cheektowaga and'West-Seneca in such' county, and has acquired and is acquiring-large tracts of land for that purpose; that the Rowley road, the Lawson road, the Union road and the French road are highways situated . in said town, and all cross ■ the tracks of the petitioner’s railroad at gradé. It is alleged that public safety requires an alteration in the manner of said crossings, their approaches, the method of crossing, a- relocation of -the highways across the. tracks of the petitioner, the discontinuance of the Union and the French roads, and the diversion of travel thereon to another highway to be opened; that it will be necefesary to the proper completion of such yards ^ to lay many more additional tracks across said highways, which will render such crossings still more dangerous. It is also alleged that to enable the petitioner to construct said yards it is necessary that it shall have the permission of the- Board of Railroad Commissioners to construct and lay six additional standard gauge railroad tracks over said highways at grade. The petitioner then prays that the Board of Railroad Commissioners determine :
    1. That public safety demands a change in the existing crossings.
    2. In what manner said changes shall be made.
    3. That the crossings of the Union and French roads be closed, and discontinued, and a new highway be .opened to take the travel, thereof over the tracks of petitioner in such manner as may seem best.
    4. That the petitioner is entitled to immediately lay six additional standard gauge tracks across said highways at grade,
    . As a part of such petition the petitioner filed with the Board of Railroad Commissioners a map showing the location of said crossings as now existing, the proposed new highway to take the place of the Union and French roads, and of said railroad tracks and yards, The Board' of Railroad Commissioners duly served notice of the filing of said petition upon the town of Cheektowaga, and gave notice that a public hearing on the petition would be held by the board in the city of Mew York on the 12th day of December, 1906. At such hearing the town duly appeared and raised preliminary objections, in substance that the Board of Railroad Commissioners did not have jurisdiction to grant the prayer of the petitioner, and that snch application is not a proceeding under section 62 of the Railroad Law to compel the separation of the grades at the several crossings,' but- is in fact an attempt to compel the State 'and town to contribute toward the expense of building viaducts over a portion of the proposed yards of the petitioner, and that it is the convenience of the company and not public safety that requires a change of the manner in which said highways shall be crossed by the tracks of said company. Also, it was objected that the Board of Railroad Commissioners has no power under the law to compel the diversion of the highways from their present course to accommodate the convenience of the petitioner; that the crossings being already made at grade by two tracks, this commission has not jurisdiction to determine any other question than whether the highways should be carried over the tracks or under the tracks. It was also objected that the use of the tracks proposed to be laid is for yard purposes only, and that the Board of Railroad Commissioners is not vested by law with power to determine how highways in a town shall be crossed by railroad tracks intended for use for yard purposes, and practically that snch question can only be determined by the town board.' The town of Cheektowaga also filed an answer in which it practically denied all the allegations in the petition, reiterated the preliminary objections, and in effect alleged that the change of crossings proposed by the petitioner was not such as would fairly serve the interests of the town or of the traveling public. The preliminary objections were overruled, and after extended hearings, at which evidence was given covering nearly 300 pages of the record, the Board of Railroad Commissioners determined in effect that the crossings as outlined by the maps filed with and made a part of the petition should be authorized, but upon condition, however, that the railroad company should pay all the expenses thereof, the railroad company having filed a stipulation agreeing so to do.
    
      
      John W. Fisher, for the appellant.
    
      Charles A. Pooley, for the respondent.
   McLennan, P. J.:

Two questions are presented by this appeal:

First. Did the Board of Railroad Commissioners have jurisdiction and authority to make the determination appealed from ? and,

Second. If it had such jurisdiction, did it properly exercise its discretion in the premises ?

The question of jurisdiction must depend upon the meaning and interpretation which should be given to sections 60 and 62 of the Railroad' Law. So far as it is important to note, section 60 provides : “All steam surface railroads hereafter built, except' additional switches and sidings, must be so constructed as to avoid all public crossings at grade whenever practicable so to do.” We think this provision of the statute cannot be and ought not to be construed to mean that the Board of Railroad Commissioners may not determine how or in what manner “ additional switches and sidings ” may be taken over a highway when the railroad company asks for such a determination. It would seem clear that the exception, “ additional switches and sidings ” was made in favor of the railroad corporation, and that when such exception was waived by them no other party interested could object how the same should be located or constructed as to a highway crossing. ' It seems to me evident that the purpose of section 60 is to confer upon the Board of Railroad Commissioners authority to eliminate steam railroad crossings at grade, and that such power includes the elimination of sidings or switches, especially where the railroad company concedes that the Board of Railroad Commissioners has or may have jurisdiction to deal with such situation. In other words, we think the words in the statute except additional switches and sidings ” refer to an exception which is available., only to the railroad company seeking the benefits of the provision of the statute. Section 62 of the Railroad Law is very broad and comprehensive. It provides in substance that any town within which a street is crossed by a steam .surface railroad at grade or any railroad corporation crossing such street may make application to the Board of Railroad Commissioners for an alteration in such crossing, its approaches, the method of crossing, the location of the highway or crossing, the closing and discontinuance of a highway crossing and the diversion of the travel thereon to another highway'or crossing, etc., practically giving to the Board of Bailroad Commissioners in the first instance complete jurisdiction to determine how and in what manner the situation existing should be met, to the end that the interests of the public might be conserved in the premises. We can conceive of no broader power that could be delegated to a governmental agency than that which is delegated to the'Board of Railroad Commissioners under section 62 of the Railroad Law in so far as it is sought to regulate the manner in which grade crossings of railroad tracks by highways may be eliminated and the methods employed to effect such result. By the language of the section the Board of Railroad Commissioners has the right to close a highway, to divert its travel to another highway, to change the grade of either, to carry either over or under the railroad, and, so far as we can discover by the language of the act, is given absolute power in the premises, subject only to review by the appellate court and by the Court of Appeals.

In the case at bar we think the Board of Bailroad Commissioners had ample power and authority to make the determination which it did; that it had the authority upon the facts alleged in.the petition to say that a certain highway should be discontinued, and that the traffic upon it should be diverted to another highway which such Commission determined should be carried over all the tracks of the petitioner by means of a viaduct. It would seem absurd to hold that if two, three or four streets parallel to each other, extended across a number of railroad tracks, any and all of which were dangerous to public safety, that under the law the Board of Bailroad Commissioners must decide that in order to avoid such dangerous situation a viaduct must be constructed over the tracks of such railroad in line with each of such highways. We think the reasonable construction'is that the Board of Bailroad Commissioners has jurisdiction to determine how many of such viaducts should be constructed and that the traffic upon the other streets should be diverted into such viaducts or means of crossing the railroad tracks, especially when, as in this case, it is stipulated that the railroad company shall pay all experisés of construction because of such change and also the damages resulting therefrom to any property owners, if any.

The manner of crossing petitioner’s railroad tracks by the highways involved, the width of the viaduct and the closing of other streets, were all matters properly within the discretion of the Board of Railroad Commissioners upon all the evidence discloseid by the record, and .no situation or circumstance has been pointed out by .the able argument of the appellant which leads us to the conclusion that the discretion exercised by the Board of Railroad Commissioners, as evidenced by its determination, is contrary to .or against the weight of the evidence, and for that reason should be reversed by this court. The situation was a complicated one. Clearly it was a situation which was dangerous to the public and to public travel. So far as we can discover, the solution arrived at by the Board of Railroad Commissioners was, all things considered, the best which could have been devised ; that at least it cannot be said that there was any abuse of discretion in the premises.

We conclude that the determination and order appealed from should in all things be affirmed, but without costs to either party.

All concurred, except Reuse, J., who dissented.

Determination of the Board of Railroad Commissioners affirmed, without costs. 
      
       See Laws of 1890, chap. 565, § 60, added by Laws of 1897, chap. 754.— [Rep.
     
      
       See Laws of 1890, chap. 565, § 62, added by Laws of 1897, chap. 754, and, amd. by Laws of 1899, chap. 359.— [Rep.
     