
    In the Matter of the Application of The Board of Rapid Transit Railroad Commissioners of the City of New York for the Modification of the Park Avenue Section.
    
      Subway in New York city — depa/rture in its construction from the plan approved by the Appellate Division—power of the Appellate Division to impose, as a condition of its approval of the altered construction, the payment of the damages caused thereby to abutting property owners.
    
    Subsequent to the .approval of the original plan for the construction of a portion of the underground railroad in the city of New York, the rapid transit commissioners and the contractors engaged in its construction proceeded, without legal authority, to make a substantial modification in the original plans, by constructing a portion of the railroad under Park avenue within a few feet of the abutting property instead of along the center of the avenue. The construction of the road, according to the original plans, would have caused no injury to the abutting owners, but its construction, pursuant to the modified plans, resulted in serious damage to the abutting owners while the work of construction was in progress. After the tunnel had been completed pursuant to the.modified plans, the Appellate Division, on application to it, appointed commissioners to determine whether or not the subway should be'constructed and operated upon such modified plans.
    
      jHeld, that the Appellate Division had power to and would impose, as a condition of confirming the report of the commissioners to the effect that the road should be constructed and operated according to the modified plans, the requirement that the abutting property owners be paid aá'part of the expense of construction the damages which they had sustained during the progress of the work in consequence of the modification of the original plans;
    That if the city of New York and the contractors or lessees of the road should refuse to make a fair and reasonable arrangement with the abutting property owners, then the city of New York should be compelled to construct its road according to the original plans and to restore the remainder of the street to the condition existing before the unauthorized interference with ijt took place.
    Application of the Board of Rapid Transit Railroad Commissioners of the City of New York for a confirmation of the report of commissioners appointed to determine as to whether or not the plans of the rapid transit commissioners for building the underground railroad between Thirty-fourth and Forty-second streets in the borough of Manhattan, in the city of New York, should be modified.
    
      Albert B. Boardman and Edward M. Shepard, for the motion.
    
      Nelson S. Spencer, for Emily A. Lawrence and others, property owners, opposed.
    
      Arthur H. Masten, for Charles T. Barney and another, property owners, opposed.
    
      Henry De Forest Baldwin, for the Manhattan Eye and Ear Hospital and others, property owners, opposed.
    
      G. H. Crawford, for Frederick W. Devoe, property owner, opposed.
    
      
      William N. Cohen, for Arabella D. Huntington, property owner, opposed.
    
      Robert L. Harrison, for George H. Byrd, property owner, opposed.
   Ingraham, J.:

The'question whether this underground railroad should be constructed and operated according to the original plan, notwithstanding the refusal of the abutting property owners to consent, was deter-' mined in favor of its construction and operation by the commissioners appointed by this court, which report was confirmed. Subsequently, the board of rapid transit railroad commissioners and the contractors proceeded to make a substantial modification in the. plans which had been approved, by constructing the road under Park ave- ■' hue between Thirty-fourth and Forty-second streets, within a few feet of the 'abutting property, instead of .along the center of'the a, venue, Without the' consent of the abutting property owners or, in lieu thereof, the consent of this court. After the tunnel was excavated one of the abutting property owners commenced an action to restrain the construction or operation of the railway, and upon án application for a temporary injunction, this court held that this change of location was unauthorized and that the conátruction of the road upon the modified plans was without legal authority. ' A preliminary injunction, however, was refused upon the ground that, as -the excavation had been completed, the abutting property owners would not be benefited by then stopping the work. (Barney v. City of New York, No. 2, 83 App. Div. 237.) Subsequently--an application was made to this court for the appointment of comnnissioners to determine whether or not the subway should, be con-. structed and operated upon the modified plans adopted by the board ' of rapid transit railroad commissioners. These commissioners have reported that the railroad mentioned in the petition of the board, of rapid transit railroad commissioners in this proceeding should be constructed'and operated, adding, however, a recommendation that, in view of the great damage suffered by the abutting property owners by reason of the excavation incident to the easterly tunnel or connected .therewith, such conditions should be imposed, should the report of the commissioners be confirmed, as may seem to the court proper. A motion is now made to confirm this report.

After a consideration of the testimony before the commissioners there can be no doubt, T think, but that the report should be confirmed, the only question being whether that confirmation should, be absolute, without conditions, or whether conditions should be imposed. In determining this question, it must be assumed that this change of location was unauthorized and that the construction of the tunnel upon the modified plans was prohibited both by the Constitution (Art. 3, § 18) and under the act authorizing the construction of the road (Laws of 1891, chap. 4, as amd.). And the first question presented is as to the power of the court to impose a' condition when confirming the report of the commissioners appointed under this provision of the Constitution and the statute.

Section 18 of article 3 of the Constitution, in regulating the power of the Legislature, provides that “ 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, and the consent also .of the local authorities having the control of, that portion of a street or highway upon which it is proposed to construct of operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the Appellate Division of the Supreme Court, in the department in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners.”

Section 5 of chapter 4 of the Laws of 1891, to comply with this provision of the Constitution, provides that upon obtaining the approval and consent of the local authorities the board of rapid transit railroad commissioners shall take the necessary steps to obtain, if possible, the consents of the property owners along the line of the route or routes; that if such consents of property owners cannot be obtained, the said board may, in its own name, make application to the General Term (now the Appellate Division) of the Supreme Court in the judicial district in which said road is to be constructed for the appointment of three commissioners to determine and report, after due hearing, whether such railway ought- to be constructed and operated; that upon such application the General Term (now the Appellate Division) shall appoint three disinterested persons who shall act as commissioners; that the said commissioners shall determine, after a public hearing of all parties interested, whether such railroad ought to be constructed and operated, and shall report the evidence taken to the Géneral Term (now the Appellate Division), together with a report of their determination whether such road ought to be constructed and operated, which report, if in favor of the construction and operation of such road, shall, when confirmed by said court, be taken in lieu of the consent of the property owners.

These provisions are clearly intended to protect the interests of the owners of property abutting on the streets in which the railroad is to be constructed, and required that such owners should at least have an opportunity to be heard by an impartial tribunal before the streets upon which their property abuts should be appropriated for railroad purposes. Both the Constitution and the statute contemplated an application to be made under these provisions before the road is constructed, and undoubtedly until the consents of the abutting property owners have been obtained, or a confirmation of the report of the commissioners had in lieu thereof, any construction or operation of a street railroad in a public street is a public nuisance which it would be the duty of the court to abate. We have held (and I do not consider it open to question) that the construction of this road upon an entirely different plan from that which had been approved as required by the provisions of the Constitution and the statute, was without authority, and, therefore, a public nuisance. This change of plan was strenuously objected to by the abutting property owners as soon as they had knowledge that the plans were changed and the road was being constructed in violation of law. Those engaged in the construction of the road made no attempt to comply with the Constitution and the law until this court had decided that their proceedings were illegal and unauthorized. The road being now completed, they have made the application that they should have.made before the road was constructed, and now urge that. their illegal proceedings should be a reason for legalizing the illegal act without conditions — a proposition to which I am not willing to assent.

The question that we have to determine is, whether the illegal construction of this portion of the suhway and its future operation should be legalized, notwithstanding the opposition of the owners of property abutting on the street. It is not claimed that this road will be of any benefit to the abutting owners of property. It runs under the ground close to their property. It, however, is and will be a public benefit, giving to the public additional facilities for transportation between the different parts of the city. A case is, therefore, presented which justifies the court in confirming the report of the commissioners and authorizing the construction of the road and its future operation, notwithstanding the objection of the abutting property owners. But as the Constitution and the statute authorizing the building of this road required either the consents of the abutting property owners or the confirmation by this court of the report of the commissioners in favor of the construction of this road, it seems to me that the court has the power to prescribe conditions which will protect the interests of the owners of abutting property so far as possible, and prevent the construction of a road which will be a benefit to the whole city or the public from being a serious injury to the abutting property so as to appropriate the property rights of abutting owners for the benefit of the whole city — an effect which, as I understand it, these provisions of the Constitution were designed to prevent. In view of the interest of the city and its inhabitants, the road should be built and operated, notwithstanding the objection of the owners of abutting property. But that is no reason why the property of abutting owners should be seriously damaged by' the construction and operation of the road, without affording them some means of obtaining compensation for the damage caused by its construction or operation. This court is placed in the position of determining, as against the protest of abutting property owners, whether or not this road should be constructed and operated; and the Constitution requires the submission of that question to this court. And the court having been given the power to determine the question, it certainly has the power to impose conditions which will prevent a substantial appropriation of the property of abutting property owners in the street, or require those wishing to build the road to compensate the abutting property owners for any injury their property by the construction or operation of the road.

question whether or not its construction or operation will be an injury to abutting property owners is generally involved in serious doubt. Undoubtedly, the construction of this road as originally designed by the board of rapid transit railroad commissioners would have caused no injury to the owners of abutting property, and, therefore, it was not necessary for the protection, of the owners of the abutting-property to impose conditions before confirming the report of the commissioners authorizing it to be built. The situation now, however, is changed. The road has been constructed ' and is in operation; and when the application 'is to legalize an act which is concededly illegal, and the court can see just what injury has been caused to the abutting property, I think that not only has the court power, but that it is its duty, to impose such conditions as will indemnify the owners of abutting- property for'the injury that has already been sustained by the. illegal and unauthorized construction or operation of the road. I think that the evidence fairly shows that the future operation'of the road would impose no substantial injury upon the owners of abutting property! But it is also shown' beyond question that abutting property was seriously injured during the construction of the road, and the court, ther'e: fore, is in a position to determine with reasonable - certainty the extent of this injury: It becomes then, I think,-the clear duty of the court to impose as a condition the payment, as a part of the expense of construction, of the amount of such damage.

To remit these property owners to their remedy at law for the damages that they have sustained would be a substantial denial of their right to have that question determined upon this application. The: sub-cóntractor who built, this section of the road has become bankrupt and subsequently died. > It would seem that the abutting property owners .would have no relief against him, and the question of the ’ liability of the city of New -York or of the general contractor and lessee of the. road is a serious one. If I am right in my conclusion that this court has the power and it is its duty to see’ to it that' the owners of abutting property who have refused to consent to the construction, of this road in the Streets adjoining their property should, as far as possible, be protected from injury in consequence of the construction of the road, I think we should, in view of the testimony before the commissioners of the injury that the construction of the road has caused to the abutting property owners,' require those interested in constructing and operating the road to compensate the property owners for the damages that have been caused by the illegal and unauthorized construction of the road under the street adjoining their property.

Therefore, before the final order confirming this report is made, these abutting property owners should have a right to present their claims and have the amount of the damage caused to their property by the construction of this subway ascertained, and after the payment of those amounts the final order can be entered approving the report of the commissioners. If the city of New York and the contractors or lessees of the road should see fit to refuse to make what I consider a fair and reasonable arrangement with the abutting property owners, then the city of New York should be compelled to construct its road according to the original plans which have been approved by this court and to restore the remainder of the street to its condition before the unauthorized interference with it took place. In this way, and in this way only, can this court perform the constitutional duty imposed upon it of determining whether or not this road should be built and operated, notwithstanding the objection of the abutting property owners.

Hatch and Laughlin, J.J., concurred.

Patterson, J. (concurring) :

I concur in the conclusion of Mr. Justice Ingraham that the report of the commissioners should not be confirmed until the abutting property owners on Park avenue are compensated for the damage caused -by the unlawful construction of the road.

Van Brunt, P. J. :

I do not think that the court has the slightest power to impose as a condition of its consent any such terms as are contemplated in this opinion.

Report confirmed on conditions stated in opinion.  