
    In the Application of The Niagara Falls Hydraulic Power & Manufacturing Co., App’lt, for the Change of the Proposed Route of The Niagara Falls & Lewiston Railroad Co., Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Railroad —Change of route — Power of commissioners.
    While the commissioners appointed in a proceeding to change the route of a railroad are confined to a determination as between the route originally laid out and that proposed by the petitioner, an adoption by them of a route within the lines of the route as originally laid out is not a violation of the statute.
    2. Same — Appeal.
    ■ On an appeal from the decision of such commissioners the court is limited to the consideration and determination of questions of law, and cannot substitute its judgment as to the merits of the two routes.
    Appeal by the petitioner from the determination of the commissioners appointed to examine the route of the proposed railroad company and the route to which the petitioner proposed to change the same, pursuant to the Laws of 1890, chap. 565, § 6, as amended by the Laws of 1892, chap. 676.
    
      John L. Romer, for app’lt; Herbert P. Bissell, for resp’t.
   Haight, J.

The Niagara Falls & Lewiston Railroad Company was organized for the purpose of constructing, maintaining and operating a railroad for public use, for the transportation of persons and property. By its articles of incorporation it commences at a point near the easterly shore or margin of the Niagara river, at or near the village of Lewiston, and running thence southerly by the most direct and feasible route along the easterly shore or margin of the Niagara river to the village of Niagara Falls and terminating in such village. From the map of the route filed by the company in the office of the clerk of Niagara county, it appears that the line of the road as located by the company extends along the easterly shore or margin of the Niagara river near the water’s edge from the village of Lewiston to the lands of the New York state reservation in the village, now city of Niagara Falls, that the center line thereof is distant two rods from the easterly shore or margin of the river and its easterly line is two rods easterly from such center line; that at a point near the crossing of the Cantilever bridge over the river, a loop or line of the road is extended up over the high bank and around to a point known as the whirlpool.

It appears from the report of the commissioners that the petitioner, the Niagara Falls Hydraulic Power & Manufacturing Company, is the owner of a tract of land in .the city of Niagara Falls, bounded by the easterly water line or margin of the river and extending onto the high bank; that the change of route proposed is from a point where the respondent’s route, as located on its map, reaches the top of the high bank near the Cantilever bridge, in Spring street; thence through various streets specifically named, to the junction of Third street with Ontario street.

The commissioners have found as facts, that the space between the jjerpendicular or high bank and the water line of the river is capable of being used by manufacturing establishments, and tha't they can procure power by making a second use of the water after its use by the mills and manufacturing establishments of the petitioner located upon the high bank; that it is of great value, amounting to a half million of dollars pr upwards. They have also found as facts that the proposed change of the respondent’s route necessitates the crossing of the railroad" tracks of the New York Central R. R. Co. at grade, that such tracks are in frequent use, both day and night, and that such crossing would become extremely dangerous.

The commissioners, in their report, further state that after the evidence had been taken and the case submitted to them, they called the counsel for the respective parties before them and informed them that they were convinced that the railroad could be constructed and operated on a space of twenty feet in width along the lands of the petitioner and that its line on the east should be located at a distance of twenty feet from the water line or easterly margin of the river, and if the railroad company would so reduce and contract its easterly line, by a resolution of the board of directors, and would create and supply sufficient openings for the discharge of the water by the manufactories and petitioner into Niagara river, and for transferring, carrying and ’removing the stones through the openings to the water of the river, and erect and maintain its railroad tracks on such space of twenty feet from the water line or margin of the river at the height of thirty feet, the application for the change in the line or route of the railroad would be denied, but otherwise would be ordered and directed; that afterwards a resolution of the company was adopted by the directors, assenting to the conditions imposed by the commissioners, and reducing the line of its route to that indicated, and thereupon the commissioners, by their report, affirmed the route as so changed by the resolution of the board of directors of the company.

The petitioner contends that the commissioners had no power to compel or receive from the railroad company a resolution contracting or changing its route as originally proposed, and that it had no power to impose as a condition that the tracks of the company should be elevated at a height of thirty feet from the surface of the water for the purpose of creating openings for the discharge of water, etc., underneath such tracks; that the commissioners were vested with no discretion other than to affirm the route as located by the railroad company, or to adopt that proposed by the petitioner. In support of such contention, the appellant relies upon the opinion of this court as delivered by Dwight, J., in the case of the application of the Lake Shore & Michigan Southern Railroad Company, to change the route of the New York, Lackawanna & Western Railroad Company. In that case it was said “ Upon these appeals we are restricted to a review of the decision of the commissioners affirming the route as located by the railroad company, and are confined, as the commissioners themselves were, to the single alternative in each case, of affirming the route proposed by the respondent, or adopting that proposed by the petitioners.” This we understand to be in accordance with the provisions of the statute which requires the commissioners, after an examination of the routes proposed, and after hearing the parties, “ to affirm the route originally designated, or adopt the proposed alteration thereof, as may be consistent with the just rights of all parties and the public, including the owners or occupants of lands upon the proposed alteration.”

The reason for this is apparent The railroad company, in locating its route, is required to make a map and profile as adopted by it in the county, and file the same in the office of the clerk of the county. The corporation is then required to give written notice to all occupants of lands over which the route is designated. Such owners or occupants of land, feeling aggrieved, may, within fifteen days thereafter, give notice to the corporation that an application will be made to the supreme court for the appointment of commissioners to examine the proposed route and such alteration thereof as such owner or occupant shall propose. Such application must be accompanied with a map and profile of the route designated by the corporation and of the proposed alteration thereof, and notice must be given to the owners or occupants of lands to be affected by such proposed alteration. Thus, all of the parties to be affected by the two proposed routes are given an opportunity to be heard. If the commissioners should adopt neither of the proposed routes, but select a third, it might involve the locating of the road over the lands of persons who have had no notice of the proceedings or an opportunity to oppose the same. But we do not understand that the commissioners have violated this provision of the statute. They have not selected a third route extending over lands of other persons, but have confined themselves to an adoption of that which was within the lines of the route as originally located by the railroad company. True, the route, as originally located,'was four rods in width, and that, as affirmed by the Commissioners, is but twenty feet in width over the lands of the petitioner, but the twenty feet in width, as affirmed by the commissioners, is within and a part of the four rods in width of the route as originally located. We, therefore, do not regard the action of the commissioners in affirming that portion of the route located by the railroad company as in conflict with the statute or the decisions of this court.

IVe are asked to consider the case upon the merits, to reverse the determination of the commissioners and to adopt the route proposed by the petitioner. The statute provides that this court may, upon the hearing of the appeal, affirm the route proposed by the corporation, or may adopt that proposed by the petitioner. Laws of 1890, chap. 565, § 6, as amended by the Laws of 1892, chap. 676. The language of this statute is identical with that used in the Laws of 1850, chap. 140, § 28, as amended.

In the Matter of the Application of the Lake Shore & Michigan Southern R. R. Co. to change the route of The New York, Lackawanna & Western R. R. Co., 89 N. Y., 442, it was held that on an appeal brought to review the decision of the commissioners, only questions of law could be considered and determined. And to the same effect is the case of the application of The New York, Lake Erie & Western R. R. Co. to change the route of The New York, Lackawanna & Western R. R. Co., 99 N. Y., 388. The statute requires the court to appoint a practical civil engineer as one of the commissioners. The commissioners are required to personally examine the proposed route. They consequently have the aid of scientific advice, as well as that of personal inspection, upon which to form their conclusion as to the merits of the two routes. This court, upon review, must of necessity be confined to the evidence taken in the proceeding. If the commissioners have committed errors, or if their conclusions of law are in conflict with the facts found by them, this court may correct their determination, but it cannot or ought not to substitute its judgment in the place of that of the commissioners as to the merits of the two routes.

It is contended that the corporation was not organized for a public purpose; that it is but a revival of the Niagara Falls & Whirlpool Bailway, which was condemned by the court of appeals in 108 N. Y., 375; 13 St. Rep., 690. But we do not regard this question as now before us for determination. The commissioners were not empowered to determine the character of the corporation, and we are here reviewing only their determination.

Determination appealed from affirmed, with the costs of this appeal to respondent

Dwight, P. J., Macomber and Lewis, JJ., concur.  