Opinion
Argued November 14, 1876
Decided November 21, 1876
Benj. G. Hitchings for the appellants. John H. Bergen for the respondent.
It may be conceded, for the purposes of this case, that the corporation has, as yet, acquired no right in the lands of the appellants. This proceeding, taken by it, practically so concedes, for this occasion. The question then presented is, have the appellants shown such objections to the proceeding as will defeat it?
That the petitioner has already constructed and is operating its road, is no legal reason why it cannot take proceedings to acquire a right to use the lands upon which its track is laid. It is plain that it was deemed certain by it, that by the act of 1873 (Laws of 1873, chap. 531, p. 832), it had power to use the lands for its purposes. Such must have been the legislative conviction as well as that of the corporation. Relying upon the legislative authorization and supposing it had good title by the empowering statute, it fully built its road and used it. So far as this legislative act is valid, and so far as in its valid provisions it is inconsistent with the general railroad laws, it is as a special charter for this corporation, and, by so much, exempts this corporation from the force of those laws. Wherein this act does not conflict with those laws the corporation is bound by them, and may avail itself of the privileges given by them. Hence it may avail itself of the right given by them, to take proceedings to acquire title, where what was thought to be a good title has proved defective.
It is manifest that this permission of those laws would be of small benefit, if it was confined only to those companies which had not yet built their track nor located their route. Indeed, it must be principally beneficial to those which have, in reliance upon a title, afterwards seen to be unsound, gone on to occupy and use the lands; and such must have been the chief purpose of this provision.
In most instances, doubtless, such companies will, on or before the first taking of lands, have complied with the prerequisite of those laws, that they shall make and file beforehand a map and profile of their routes, and give notice thereof to actual occupants. But in this case, by the provisions of the act of 1873, inconsistent with this requirement of the general railroad laws, this company is excused from showing that it has done this. The very power given by that act to this company to lay its track upon Gravesend avenue, is in place of a map and profile, and in place of notice, inasmuch as that avenue is as well defined a route as any survey or map can present. By the act itself all the purposes are reached which are sought by the requirement of the general laws. The termini of the route, so far as this avenue is concerned, are, by the act, established; the course and distance of it, and the grade at which it shall be built. The act being thus special as to the route, saves the purpose and the need of notice to actual occupants; even if it be allowed that adjoining owners upon the sides of the avenue are actual occupants; as to which no opinion is intimated. The act being authority from the people, through one set of their representatives, saves the need of notice to the highway commissioners, another inferior set of their representatives, and the need of application to the Supreme Court, another representative (Laws of 1864, chap. 582, p. 1335, § 1), and meets the principle declared in In re Boston and Albany Railroad Company ( 53 N.Y., 574). Although the avenue was devoted to one public use, the sovereign power may, by special enactment, devote it concurrently to another, so far as declaring a necessity for that other public use is concerned.
The act of 1874 (Laws of 1874, chap. 448, pp. 591, 592, § 3) gave power to one of the corporations, which now together form the corporation which is the petitioner in this case, to consolidate with any other like corporation. The point of the appellants, that no power to consolidate is given to the other of those corporations, is without effect. Power is given by statute to one corporation to form a consolidation with any other. It cannot form a consolidation unless it finds another with which to unite and which is capable of union with it; hence, whatever other company it selects for a union, and finds willing to join it, that other company, though not named in the statute, gets power from the statute to unite with that company which the statute names.
The negotiation which took place between the president and engineer of the petitioner and the respective owners, was enough to show that it was unable to acquire the title by agreement with them. That provision of the general railroad law does not mean that it must be impossible to buy the right of way at any price, however large; it means that the owner must be either unwilling to sell at all, or willing to sell only at a price so large, as in the good judgment of the agents of the corporation is excessive. That appears here. Though the price offered to the owners was nominal, they refused to name any price, or that asked by them was so much beyond the view of value held by the president, that there seemed no likelihood of agreement, and it was fitting that commissioners should be appointed to arrive at a sum to be given in each case.
The amendment of the petition at the commencement of the hearing at Special Term, so as to ask for less width of land, did not make necessary a further attempt at agreement on a price. The parties were all represented in court; though no testimony had been taken, no suggestion was made by the owners, of a withdrawal of opposition, or for a suspension of proceedings with a view to such an attempt. The appellants still opposed; not alone on the ground of no such attempt, but on the radical grounds now urged; nor does it appear that the position now taken was the ground of, or entered into, the objection to the amendment.
We do not think that the acts relied upon by the company are unconstitutional on the grounds now urged. The title of the act of 1874 does express the subject of the act sufficiently for all the purposes of the Constitution. The act does not treat of more than one subject; all that is in it might have well been in an act incorporating this company. It would have been the details of the one general subject. An act for the relief of a railroad company, must be one to remove some restriction upon its powers, or to give it greater powers. An act entitled, for the relief of such a corporation expresses such subject. So, the title to the act of 1873 is expressive of the subject of the act. There is one general subject — to open certain lands for public use; the different sections are but of the details of that general subject, and not of more than one general subject; and the thirteenth section, referring to the articles of association, brings into the act the particulars of the route in those articles contained. The general provision of article 8, section 1 of the Constitution has never been held to render unconstitutional a special charter, or special additions to a charter taken under general laws; and it is not new that railroad corporations have been authorized by special statutes to consolidate.
The orders appealed from should be affirmed; but in adjusting the costs there must be an allowance for one case only; for though many orders have been entered there is but one proceeding.
For the same reason, we think that the motion to dismiss the appeal, or to compel an election, should be denied; there is but one proceeding; the orders are all made in it; they are cognate.
All concur.
Orders affirmed and motion denied.