Opinion
December Term, 1896.
S.D. Halliday, for the appellants.
Jared T. Newman, for the respondent.
By section 1 of chapter 62 of the Laws of 1853 it is provided that "It shall be lawful for the authorities of any city, village or town in this State, who are by law empowered to lay out streets and highways, to lay out any street or highway across the track of any railroad now laid, or which may hereafter be laid, without compensation to the corporation owning such railroad."
By section 2 it is provided that "It shall be the duty of any railroad corporation, across whose track a street or highway shall be laid out as aforesaid, immediately after the service of said notice, to cause the said street or highway to be taken across their track, as shall be most convenient and useful for public travel, and to cause all necessary embankments, excavation and other work to be done on their road for that purpose."
By section 3 of title 6 of chapter 212 of the Laws of 1888, being the charter of the city of Ithaca, it is provided that "The common council shall have power, subject to the limitations imposed by the general laws of the State, to lay out, make and open streets, alleys, lanes, highways and public grounds, and may lay the same through any lands, building, garden, orchard or enclosure in said city."
Section 5 provides for the proceedings to be taken when the laying out of streets, alleys, lanes or highways require that private property shall be taken.
That the Legislature has power to authorize the laying out of a street across the tracks of a railroad company, and to require it to carry such street across its tracks, without compensating it therefor, has been decided in this State, and is not questioned by the defendants here. ( Buffalo, etc., R.R. Co. v. N.Y., L.E. W.R.R. Co., 72 Hun, 587, and cases cited.)
In this case no land was to be taken, the necessary land having been previously acquired by the city, so that it was not necessary to take the proceedings directed by the charter of the city of Ithaca when land is to be acquired by eminent domain for street purposes.
The passage of the resolutions and their approval by the mayor was, under the circumstances, all that was necessary to be done to lay out, open or extend the street in question. It will be observed that when the city authorities suggested what would be a satisfactory crossing, the objection was made that the street was not necessary, and that was one of the issues tried in the court below, and it was found by the trial court that such street was both convenient and necessary.
I do not think the defendants can question the necessity or propriety of laying out the street; that is a matter exclusively for the determination of the mayor and common council of Ithaca.
The purpose is undisputably a public one; and, in taking lands by the right of eminent domain, it is the settled law of this State that if the use to which lands are to be put is public the Legislature, or the instrumentality which it employs, is the sole judge of the necessity. ( People ex rel. Herrick v. Smith, 21 N.Y. 595; Rensselaer Saratoga R.R. Co. v. Davis, 43 id. 137; Matter of Fowler, 53 id. 60.)
The fact that in this instance the land required has been donated, so that there is no necessity for exercising the right of eminent domain, makes no difference in the principle; the question of the necessity of a street remains the same whether the land therefor has to be acquired by compulsion or is acquired by gift.
The appellants assert that the city of Ithaca has not in fact laid out a street or highway across the track of the defendants' railroad, and their contention is based upon the wording of the second resolution reading in part as follows: "A street be, and is hereby, laid out in said city, fifty feet in width, extending from the intersection of Cayuga street with the Spencer road south to the track of the D., L. W. Railroad Company, and thence to the south line of said city."
The contention is, that the words "to the track of the D., L. W. Railroad" takes the street only to the first, or north track of the railroad, making such north track the stopping point; and that the words "and thence to the south line of said city," makes the new starting point the south track of the railroad, thus leaving a hiatus of the space embraced between the north and south tracks, in other words, of the entire space occupied by the defendants' tracks.
This objection to and criticism of the resolutions of the common council seems to me to be hypercritical and without force.
Assuming the position of the appellants to be correct, that the language of the resolution extending Cayuga street south to the track of the defendants only carries it to the first or north track of the defendants, then the words " thence to the south line of said city," takes it from that point, that is, the north track; in other words, the stopping point of one part of the description is the commencement of the other part; "and thence," means from the point to which the other words had carried it. There are not two points given, only one; the point where one part of the description ends being the same point where the other part of the description begins.
Reading the resolutions together makes it entirely clear that the street is laid out across the tracks.
The resolutions set forth in the statement of facts herein, in relation to the extension of Cayuga street to the south line of the city, were, as I understand it, all passed at one and the same time, and are to be read together, the same as if each separate resolution was a section of a statute, and each resolution, like each section of a statute, is to be construed in reference to each other section of such statute bearing upon the same subject. This is a familiar rule in the construing of statutes, and needs no citation of authorities to sustain it.
The first resolution provides that Cayuga street shall be continued south to the city line. It cannot be so continued unless it crosses the tracks of the defendants. The last resolution provides that the city attorney be directed to cause due notice of the laying out of such street across the tracks occupied by the Delaware, Lackawanna and Western Railroad Company, etc.; so that the intention is obvious. And the language used is sufficient to make the intention clear, and lays out said street not only to the defendants' tracks, but across them.
The street has been duly and lawfully laid out; the defendants have been notified, as the law requires; the street has been constructed up to the line of their tracks; it is their duty to take it across them, "as shall be most convenient and useful for public travel." The manner of doing it, and at what grade, are details with which we have nothing to do at present, and that the plaintiff cannot dictate or determine.
The judgment is affirmed, with costs.
All concurred.
Judgment affirmed, with costs.