The Erie Railroad Company is a corporation operating a railroad between New York, Buffalo, Chicago, and other points in the west. Its main line runs through the village of Goshen, crossing numerous streets at the surface upon a steep grade with sharp curves, and its heavily-laden trains require the services of an additional engine in order to pass through the village. In order to save time and expense in the running of the trains and to enable the company to compete with other trunk lines from the west, the officers of the Erie Company devised a plan for a cut-off road running partly outside of the village and partly within the corporate limits, but beyond the thickly-settled portions, of about two and three-quarters miles in length over which they could run their through freight trains, thereby relieving the village of the noise, smoke and delay at street crossings occasioned by the taking of trains through the village, and at the same time save to the company the expenses of maintaining a pusher engine, as well as considerable time. For the purpose of accomplishing this result, the Erie officials organized a new corporation under the name of Goshen Railroad Company, designed, as they say, as an auxiliary company to the Erie for the purpose of building the proposed new road. The reason for this, as given by their counsel, is, that the Erie road is mortgaged to the full extent of its value and that company was unable to raise the necessary money to build the new road; that the Goshen Company could mortgage the new road separate from the Erie's and thereby raise the necessary money for its construction, and then rent it to the Erie Company for a sufficient sum to pay the interest on the mortgage.
The Goshen Railroad Company, having been organized and conformed to the preliminary requirements of the statute, applied to the railroad commissioners for a certificate required by section 59 of the Railroad Law. The railroad commissioners thereupon inspected the old road and the location of the proposed new road, and then, upon notice given, a public hearing was held for those opposing the granting of the certificate. Upon such hearing the relators appeared by counsel *Page 214 and produced witnesses and gave evidence in opposition to the claim of public necessity contended for by the railroad company. After hearing and considering the evidence, the railroad commissioners issued the certificate prayed for. The relators then applied for a writ of certiorari, and the same having been allowed, and the Goshen Railroad Company brought in as a party, the case was brought to a hearing in the Appellate Division and resulted in the order from which this appeal was taken.
We do not regard the fact as to whether the proposed road is a public convenience and necessity as properly before us; indeed, we do not understand that the Appellate Division has reversed upon the ground that the new road was not a public convenience and necessity. The prevailing opinion written seems to indicate that the court reached the conclusion that the Goshen corporation was unnecessary and not the proposed road; that the new corporation was considered to be a parasite on the old and that the Erie Company could construct its own cross-cut road and thereby secure all of the good to be accomplished and rectify all of the evils complained of. We shall not stop to consider all of the questions discussed, not even the question as to whether a new corporation was proper, or whether the commissioners had any jurisdiction to determine that question; for to our minds there are other questions which we think dispose of this case before reaching those alluded to.
Section 2127 of the Code of Civil Procedure provides that "An application for the writ must be made by, or in behalf of, a person aggrieved by the determination to be reviewed; must be founded upon an affidavit, or a verified petition, which may be accompanied by other written proof; and must show a proper case for the issuing of the writ."
Section 2122, so far as is material, provides that "Except as otherwise expressly prescribed by a statute, a writ of certiorari cannot be issued, in either of the following cases: 1. To review a determination which does not finally determine the rights of the parties, with respect to the matter to be reviewed." *Page 215
It will at once be seen that a review by certiorari can only be had by a person aggrieved by the determination of the commissioners, and that it cannot be had by such a person, unless it finally determines his rights with respect to the matter to be reviewed.
The relators are the owners of lands through which a portion of the new road is proposed to be built. Section 59 of the Railroad Law was designed, as has been held, to prevent destructive competition and the levying of tribute upon existing roads, by requiring, as a condition precedent to the right to build, a certificate from the railroad commissioners of public necessity and convenience. No notice of the application for the certificate is required to be given to the owners of the lands through which the company design to construct its road. The statute does not specify the manner in which the commissioners shall determine the question; their usual practice is to inspect the proposed route, and then make public inquiry in the locality chiefly affected, and upon the information so derived, determine the question of public necessity and convenience. The landowners are not necessary parties to the proceedings, and none of their rights are affected. After the granting of the certificate, the landowners have left unimpaired all the rights and remedies given them by the Railroad Law; they may move to change the route, and in case condemnation proceedings are instituted, they may answer, putting in issue the validity of the petitioner's organization or that the road was for a public use or necessary for such use, and have those issues regularly tried and determined in a court of equity. (Code C.P. secs. 3360, 3365, 3367.) The contention on behalf of the relators, that the courts will be influenced in the determination of that issue by the certificate given by the commissioners, is hardly worthy of an answer. It is sufficient to say with reference thereto, that it is the duty of the courts to determine the question from the evidence produced upon the trial, in the same way other questions of fact are determined in the trial of other cases.
In Matter of Niagara Falls and Whirlpool Railway Company *Page 216 (108 N.Y. 375) it was held that a railroad corporation, seeking to take property in invitum for the purposes of its road, must be able to show, first, a legislative warrant, and second, if the right is challenged, that the particular scheme in which it is engaged is a railroad enterprise within the true meaning of that term, or that the business it is organized to carry on is public, and that the taking of private property for its purposes is a taking for public use. That the question as to whether the uses are, in fact, public so as to justify such taking is a judicial one to be determined by the court. (See, also, In the Matter ofSplit Rock Cable Road Company, 128 N.Y. 408.)
It will at once be seen that certiorari is not the remedy provided by the statute for the relators, and that a remedy has been provided in which the question raised by them upon this review may be tried out and determined in a proceeding in which they are necessary and proper parties. It will also be seen that a review by certiorari does not necessarily finally determine the rights of the relators, for if they are unsuccessful upon this review, they may again litigate the same question when their land is sought to be taken.
It is contended that the case of People ex rel. Loughran v.Railroad Commissioners (158 N.Y. 421) is an authority for the allowance of a writ in this case. We do not think so; that case arose under a very different statute. The railroad company sought permission from the railroad commissioners to abandon and remove a passenger depot in the city of Kingston. The relators in that case claim to have contributed money for the erection of the depot at that place. The Railroad Law gave them no other remedy. The consent of the commissioners to the removal of the depot was the end of the proceeding; all that remained to be done was to tear down the building, which the company was at liberty to do at any time after procuring the consent of the commissioners. This case is very different; after procuring the certificate, the company have to secure their right of way, and this has to be accomplished by another proceeding in *Page 217 court in which, as we have shown, the rights of all the parties must be determined by the courts, and not by a board of commissioners, unless the landowners see fit to make voluntary agreements with the railroad company.
Our conclusion is, that the writ of certiorari in this case was prohibited by the provisions of section 2122 of the Code of Civil Procedure. The order of the Appellate Division should be reversed and the writ dismissed, with costs.
GRAY, O'BRIEN and VANN, JJ., concur with PARKER, Ch. J., for affirmance; BARTLETT and MARTIN, JJ., concur with HAIGHT, J., for reversal.
Order affirmed.