
    The Lake Shore & Michigan Southern Railway Company, Plaintiff, v. The Chautauqua Traction Company, Defendant.
    (Supreme Court, Erie Special Term,
    May, 1907.)
    Street railways — Construction, maintenance and equipment — Crossing intersecting roads — Crossing over steam railroad on highway bridge.
    A street railroad company, having a franchise from the village authorities where it is being constructed and an order from the State railroad commissioners, cannot lay its tracks upon a bridge, built by á steam railroad company to carry the highway across the latter’s tracks, without a previous agreement with the latter company as to compensation and point of intersection, or a determination thereof by commissioners in accordance with section 12 of the Railroad Law.
    
      Motion to dissolve a temporary injunction restraining the defendant from laying tracks upon North Portage street bridge in the village of Westfield.
    
      J. B. Fisher, for motion.
    Maurice Spratt and Thomas D. Powell, opposed.
   Pound, J.

Plaintiff owns and operates a steam railroad across Portage street in the village of Westfield. In the year 1905 it caused the traveled portion of Portage street to be carried over its tracks and right of way by an overhead bridge, which took the place of another bridge constructed for the same purpose by the plaintiff railroad company some years before. The defendant is a street railroad company with an established line upon maps intersecting the railroad of the plaintiff on North Portage street. Defendant intends to lay its tracks across said bridge without the. consent of the plaintiff and without having applied to the court for the right to cross, or for the appointment of commissioners to fix the point of crossing, or compensation to be paid under section 12 of the Railroad Law.

The question is whether the defendant, under a franchise from the village of Westfield and an order from the State railroad commission, has the right to cross the tracks of the plaintiff on the bridge without having the point at which the crossing shall be made and the compensation which shall be made therefor by the defendant determined by commissioners appointed by the Supreme Court.

I am of the opinion that, before laying its tracks across said bridge, the defendant must either agree with the plaintiff upon the amount of compensation to be paid for the requisite facilities and upon the point of such intersection, or, if the two corporations cannot agree, have the same ascertained and determined by commissioners, in accordance with the provisions of section 12 of the Railroad Law, which reads as follows: “ Every railroad corporation, whose road is or shall be intersected by any new railroad, shall unite with the corporation owning such new railroad in forming the necessary intersections and connections, and grant the requisite facilities therefor. If the two corporations cannot agree upon the amount of compensation to be made therefor, or upon the line or lines, grade or grades, points or manner of such intersections and connections, the same shall be ascertained and determined by commissioners, one of whom must be a practical civil engineer and surveyor, to be appointed by the court, as is provided in the Condemnation Law.”

By chapter 754, Laws of 1897, the determination of the manner in which the crossing shall be made, i. e., whether above, below or at grade, is vested exclusively in the State-board of railroad commissioners; but the provisions of said section 12 remain in full effect as to the determination by court commissioners of the point of crossing and compensation.

The ordinary and natural course of procedure in such a case is held to be as above stated in the case of Olean Street R. Co. v. Pennsylvania R. Co., 75 App. Div. 412. I fail to see how this case differs in any respect from that case, except that in that case the tracks of the steam railroad were laid upon the surface of the street and, therefore, under chapter 239 of the Laws of 1893, which applies only to railroad crossings where the railroad to be crossed is laid on the surface of" the street, provision was made for application to the court for the establishment of a temporary crossing pending the determination of the point and manner of permanent crossing and the compensation to he paid therefor. No provision being made by law for the establishment of a temporary crossing when the tracks of the steam "railroad, as in this case, are not on the surface of the street, it would follow that the defendant cannot cross the plaintiff’s tracks on said bridge temporarily under an order of the court fixing terms as to security, etc.

Motion denied.  