Ingersoll v. Nassau Electric Railway Co.

PRATT, J. (dissenting).

I have been unable to satisfy my mind that the act of 1890 and the amendments of 1893 and 1894 do not prohibit any street-railway company organized under the several laws of 1890 operating any railway in any street except on condition that it shall first obtain the requisite consent of property owners on the street. The defendant was organized under the general railroad law of 1890. Its route runs through Bergen street, in front of plaintiff’s premises. It has obtained the consent of the local authorities to construct and operate its road, but it has obtained no consent of any property owners on Bergen street. The consent of the local authorities was conditioned upon its compliance with all *1047the provisions of the railroad law, and acts amendatory thereof. The railroad law requires consent of one-half in value of the property owners on the several streets on its route. The contention of the defendant is that such consents were unnecessary, under that law, because it does not propose to construct any railway on Bergen street, but merely to use the tracks of the Atlantic Avenue Railway Company already existing in that street, under a contract with the latter. As I construe the statute, the prohibition extends disjunctively to the building, extension, or operation of street railways. It forbids the operation of a street railway quite as much as its construction or extension. Nor does it matter that the defendant does not propose to construct in Bergen street, or that the Atlantic Avenue Railway was constructed before these special statutory provisions, or even the constitutional prohibition. The acts under which the Atlantic Avenue Company was organized rendered it subject to future legislation. The constitutional prohibition was aimed at the future. We find such future legislation in the acts of 1890, 1893, and 1894, and in the railroad law, which, in effect, prohibits any street-railway company organized since those acts took effect from operating a railway without such consent, unless, perhaps, as the successor of the owner of the preexisting franchise of the pre-existing road. True, the railroad law authorizes a contract by one company for the use of a part of its tracks by another, but that is subject to the other provisions of the law. Such a contract may be lawful, but, the moment the hirer of the track attempts to use it, then quoad hoc, it begins the operation of that railroad. For all practical purposes, the portion thus used becomes the road of the hirer, and the act of running cars over it is the “operation of the road.” Let us test this question by an easy illustration of the design of these prohibitions both in the constitution and in the statute. Take the case of a railway constructed and operated by consent of local authorities and property owners. What did the property owner consent to? Was it that his street should be thrown open to any use of the tracks to which the consentee might agree? I think not. He consented to the construction and operation of the railroad proposed by the company which applied for and obtained the consent, —a railroad having definite termini, a recorded route and plans; something which the judgment of the property owner could com- ■ prehend, and upon which he might act intelligently; something from which he could form some estimate of the probable advantage of the scheme to his property, and the probable burden or servitude which.it would impose. It is idle to say that any one consenting to the construction and operation of, say, the Bergen Street Railway, with its specific route, plan, termini, etc., could have contemplated that the passenger traffic of a new cross-town line, from some grand central depot connection to the seashore, should be poured over that track in front of the consentor’s door. He might well have consented to the one, thinking that it would be an advantage to his property, when the other, either alone or in conjunction with the former, would be a positive injury. Instead of *1048the ordinary street-railway traffic, involving one car in five or ten minutes, there might be as many cars as congregate about the City Hall Square; for, if this sort of thing may be done for one railway company, it may be done for a dozen. Thus a totally uncontemplated burden or servitude would be imposed on the consentor’s property. His consent would be wholly misconstrued. This, to my mind, illustrates the design of these constitutional and statutory provisions,—namely, to give the property owner some sure guaranty against the encroachment of street-railway corporations upon private property. Such a ruling in the case which I present would be simply to whittle away into nothing that which was intended to be a safe and reliable guaranty,—namely, the voice of a majority in value of the property in any street. As I look upon this case, the defendant and this Atlantic Avenue Company, at the commencement of this suit, stood in precisely the legal relation to property owners which I put by the foregoing illustration. The defendant proposes to operate a part of its line of railroad, and that which, quoad hoc, is to become its railroad and railroad track, in direct violation of the spirit, if not of the very letter, of these statutory and constitutional prohibitions, and without complying even with the conditions on which the consent of the local authorities was given. These views lead to a reversal of the present judgment, and to a new trial, with costs to abide the event of the action.