[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 281 The defendant is a railroad corporation that has among other lines of railroad maintained and operated for many years a double-track steam railroad between the cities of Albany and Cohoes. At a point in the town of Colonie, Albany county, it crosses a public highway which runs from the city of Watervliet westerly. The crossing is substantially at right angles and at grade.
In 1910, 1911 and 1912 the defendant constructed and put in operation large repair shops on a plot of ground immediately east of its said railroad and south of said highway. To connect the buildings of said plant with the said double line of tracks it laid and constructed therefrom six switch tracks which crossed said highway at grade immediately east of the double line of tracks and connected the same therewith north of the highway. The defendant did not before laying said switch tracks obtain a consent so to do from any state or other official. Said highway was designated for improvement as shown on the map prepared as stated in chapter 715 of the Laws of 1907. Subsequently the plans and specifications for said highway were duly approved, and on March 22, 1911, a contract was entered into in behalf of the state with a contractor for the improvement of six and fourtenths miles of said highway from the city of Watervliet westerly, and the contractor entered upon the performance of his work under said contract. No work under said contract was ever performed on that part of the highway *Page 283 east of said railroad crossing or for two or three hundred feet west thereof except preliminary engineering work. The switch tracks were constructed across said highway in the year 1911 after the making of said contract and at the time they were so constructed the contractor was engaged in grading pursuant to his contract at a point on said highway, about one thousand feet west of the railroad crossing. That part of said highway commencing about two hundred feet west of the railroad crossing and extending across the same to the city of Watervliet was eliminated from the contract by action of the state highway department which part so eliminated includes the part where the double line of tracks of the railroad and said switch tracks cross the same. On the 12th day of January, 1912, on the petition and application of the defendant and the consent of the town superintendent of highways of said town of Colonie the Supreme Court made an order pursuant to the provisions of section 21 of the Railroad Law (Consolidated Laws, chapter 49) granting permission to the defendant to construct said switch tracks and other tracks therein named upon condition that the defendant would protect the same by proper gates.
On June 30, 1914, upon a petition of the defendant dated December 15, 1911, the public service commission, second district, made an order which recites the filing of said petition and that "such tracks having been constructed prior to the entryof any permissive order by this commission, and a petition having subsequently been made on behalf of the town of Colonie to compel the removal of said tracks unless the said Delaware and Hudson Company should construct an overhead crossing at the point complained of; and hearings having been had in respect to both of these matters the two proceedings having been treated for the purposes of the said hearing as one proceeding;" and provided
"That the petition of the said Delaware and Hudson *Page 284 Company for leave to construct certain switch tracks across the above mentioned highways and to exercise such franchise under section 53 of the Public Service Commissions Law of the State of New York, be and the same is hereby granted; this order, however, not to take effect until sixty (60) days from the granting thereof, and then only to take effect in the event that during such period of sixty (60) days the said Delaware and Hudson Company shall actually have made application to this commission in due form of law under section 91 of the Railroad Law, for the elimination of the grade crossing now existing, and for the changing of the same to a crossing above the grade of all the tracks of said company, whereby said Shaker Road will be taken over said tracks above grade; and it is
"Further ordered, that the said town of Colonie, which has appeared in this proceeding as aforesaid, may subsequently make application to this commission for an order rescinding thepermission hereby granted if such contemplated proceedings under section 91 of the Railroad Law are not prosecuted to a conclusion by the said Delaware and Hudson Company with due and reasonable diligence, or if the said Delaware and Hudson Company shall subsequently depart in any wise from its agreement above recited, as to the manner in which the expense of such overhead crossing, when ordered, shall be borne by the said Delaware and Hudson Company."
The defendant filed its written consent to such order as follows: "That upon the granting of the consent heretofore applied for, stated herein, it will, within sixty days from the granting thereof, make application to the Public Service Commission in due form of law under section 91 of the Railroad Law for the elimination of such grade crossing and changing the same to a crossing above grade of all the tracks of such company, whereby said Shaker road will be taken over said tracks above grade, in which application or in the proceedings thereon *Page 285 it will consent and stipulate that the Public Service Commission may apportion the expense of such overhead crossing between the main tracks of its railroad and the switch tracks leading therefrom into its shops and yard and require said railroadcompany to bear and pay the entire expense apportioned to saidswitch tracks, leaving the portion of such expense apportioned to the main tracks of said railroad to be borne and paid in accordance with the provisions of section 94 of the Railroad Law. It further states and declares that it will prosecute such application for the elimination of said grade crossing with reasonable diligence."
Within sixty days after the order was granted the defendant in accordance with the requirements thereof filed its petition with the public service commission, second department, dated August 19, 1914, asking that proceedings be had pursuant to the provision of section 91 of the Railroad Law to eliminate said grade crossings. It was found by the trial court that "No action has been taken by said commission on said application. Its failure to act thereon has not resulted from any failure on the part of the defendant to secure action thereon by such commission but has resulted from the failure of the legislature to appropriate moneys for grade crossing eliminations in the absence of which said commission has been unable to take action thereon."
The rights, privileges, powers and franchises of the defendant as a railroad corporation were in 1911 subject among other provisions of statute to the provisions of sections 21 and 89 to 96 of the Railroad Law (Consolidated Laws, chapter 49), section 146 of the Highway Law (Consolidated Laws, chapter 25), and section 53 of the Public Service Commissions Law (Consolidated Laws, chapter 48).
Prior to the time when chapter 646 of the Laws of 1911 became a law section 146 of the Highway Law provided that "No street surface railroad shall be constructed *Page 286 upon any portion of a state or county highway which has been or may be improved under the provisions of this article, nor shall any person, firm or corporation enter upon or construct any works in or upon any such highway, except upon the approval of, and under such conditions and regulations as may be prescribed by the commission, notwithstanding any consent or franchise granted by the town superintendent or municipal authorities of any town. * * *."
By said chapter of the Laws of 1911 said section was amended so as to include railroads other than street surface railroads. The section was again amended by chapter 80 of the Laws of 1913 by adding after the words "such highway" the words "or construct any overhead or underground crossing thereof or lay or maintain therein drainage, sewer or water pipes underground," and striking out the words "upon the approval of and," so as to limit the authority of the commissioner of highways to prescribing the conditions and regulations upon which a railroad or any works should be constructed, "upon any portion of a state or county highway which has been or may be improved under the provisions of this article."
The amendment also substituted therein the commissioner of highways for the commission, and the words "any town, county or district superintendent" in place of the words "The town superintendent."
Whether the defendant constructed the switch tracks across the highway without first obtaining the consent of the public service commission or other official because as has been suggested of some misunderstanding about the necessity therefor or for some other reason or no reason other than a selfish one, is not of material consequence as the question presented on this appeal must be determined upon the facts as they existed at the time of the commencement of the action and the trial and judgment herein. *Page 287
This action was not commenced until August 13, 1914. Prior to that time an order had been made at a Special Term of the Supreme Court consenting to said crossing as therein stated and as provided by section 21 of the Railroad Law. The amendments to section 146 of the Highway Law as stated had all taken effect and the statutory provision providing for the consent of the commissioner of highways to the construction of railroads on certain highways had been omitted therefrom. Authority to consent to the crossing of the highway in question is and at all the times mentioned herein was vested in the public service commission. (Public Service Commissions Law, sec. 53.)
At the time of the commencement of the action the highway at the place where the switch tracks were constructed had not been improved as a state or county highway and no contract for its improvement as such then existed. No conditions or regulations had been prescribed for such switch tracks. The order of the public service commissions had then been made and entered.
Whether prior to the amendment of the statute in 1913 it was necessary to obtain the consent of the commissioner of highways to a crossing in any case where the highway had not been actually improved as a portion of a state or county highway even if such improvement was contemplated is not now material, but for the reasons stated in the opinion of Justice WOODWARD in the Appellate Division in this case (People of the State of NewYork v. Delaware Hudson Co., 183 App. Div. 149) we do not think that the claim of the plaintiff that such consent was necessary can be sustained.
In the proceedings in which the order was made by the public service commission consenting to the construction of the switch tracks it had before it the defendant as the petitioner in one proceeding and the town of Colonie and the commissioner of highways of the state *Page 288 of New York as the petitioners in the other proceeding, and in such consolidated proceedings every material fact now before this court was before the commission and the order was made with full knowledge and consideration thereof. In considering the applications the public service commission had to take into account the fact that the two main tracks of the defendant's railroad had for many years crossed the highway at grade and the further fact of the construction by the defendant of its shops and their location and the necessity for an outlet by rail therefrom. It was practically impossible to carry the switch tracks over the highway by an overhead crossing without at the same time eliminating the crossing at grade of the main tracks of its railroad.
There is no material dispute that the defendant has in good faith complied with every provision of the order. It has also consented to an apportionment of the expense of the charges as provided by the order. Such order was not without precedent. (Matter of N.Y.C. H.R.R.R. Co., 200 N.Y. 121, 124; Matter ofErie R.R. Co., 208 N.Y. 486, 490.)
The public service commission has ample power to hear and act upon any question relating to said crossing that may arise from new or changed conditions. We do not think that the switch tracks were at the time of the commencement of this action, or at the trial thereof or the judgment herein, maintained across the highway without legal right.
The judgment of the Appellate Division should be affirmed, with costs.