Opinion
Argued November 19, 1923
Decided December 27, 1923
Clinton T. Taylor, Corporation Counsel ( John J. Burke of counsel), for appellants. Alfred T. Davison and Addison B. Scoville for respondent.
In 1909 consent was given to the Westchester Electric Railroad Company by the local authorities of the city of Mount Vernon to construct and maintain a street railroad on designated streets and avenues within the limits of the city. The consent was upon conditions, including, with others, the payment by the company of a percentage of its receipts. In 1922 the car barn, then in use for many years, was found to be inadequate, and a tract of land on the southerly side of East Sixth street was acquired as the site for a new barn. East Sixth street is one of the streets included by the terms of the consent in the description of the route. A difference of grade makes it impossible, however, to connect the barn with the tracks by sidings or spurs so laid as to enter the front of the abutting land. The site, if it is to be utilized for a barn, must be connected by a spur or siding running through Garden avenue for a space of fifty feet. Garden avenue is laid out at right angles to East Sixth street, and is not one of the streets or avenues included in the franchise. The railroad company applied to the common council of the city for a permit to lay tracks for the necessary distance. A peremptory mandamus order followed the refusal.
A franchise to operate a railroad in the streets of a city is a franchise to operate it with sidings and connections reasonably necessary to the enjoyment of the grant ( Brooklyn Heights R.R. Co. v. City of Brooklyn, 152 N.Y. 244; City of New York v. Brooklyn City R.R. Co., 232 N.Y. 463, 470). The municipal authorities consent by implication to the incident in consenting to the principal. Even so, sidings and connections must not extend outside of the streets and avenues designated as the route, unless a reasonable necessity exists for the departure. Only then will consent to the departure be an implication reasonably derived from approval of the franchise. A barn may not be so located that tracks will have to be laid upon contiguous streets if it is reasonably practicable to acquire a site along the route. We do not say that the use of contiguous streets will be permitted even for necessary connections if the operation of the railroad is without the consent of the lot holders affected (Constitution, art. III, § 18; Railroad Law, § 171; Consol. Laws, ch. 49). Such consent was obtained in Brooklyn Heights R.R. Co. v. City of Brooklyn ( supra, pp. 246, 265). It so happens, however, in this case that the sole lot owner affected is the city of Mount Vernon, which is itself the owner of the land bounded on that portion of the highway to be occupied by the proposed connection. The city has already consented to the operation of the road, and this for a valuable consideration. The land affected by the change is part of a single parcel, the corner of a block, fronting partly on the route and partly on the intersecting avenue. We are not dealing with a situation in which consents applicable to one parcel are attached or extended to another remote or disconnected. Problems that might then be offered must be solved when they arise. If the use of this site is justified by reasonable necessity, the consent may fairly be interpreted as covering the construction of the spur.
We think there is a question of fact whether this necessity is present. The railroad company asserts that no site adapted to its needs can be obtained along the route. The city denies this, and points to sites available. There is an issue to be tried.
The order of the Appellate Division and that of the Special Term should be modified by granting an alternative in lieu of a peremptory mandamus, and as modified affirmed, without costs to either party.
HISCOCK, Ch. J., POUND, McLAUGHLIN and CRANE, JJ., concur; HOGAN and ANDREWS, JJ., dissent and vote for reversal.
Ordered accordingly.