Opinion
November 25, 1908.
Simon Fleischmann, for the relators Sawyer and others, landowners.
Edward W. Hatch, Frank B. Church and Joseph G. Dudley, for the relator Buffalo Frontier Terminal Railroad Company.
Charles A. Pooley, for the relators the New York Central and Hudson River Railroad Company and others.
Clarence M. Bushnell, Lewis E. Carr and J. Henry Metcalf, for the respondent Buffalo, Lake Erie and Niagara Railroad Company.
It seems to us plain that the determination of the Board of Railroad Commissioners in granting the certificate to the respondent, the Buffalo, Lake Erie and Niagara Railroad Company, in the proceedings now under review cannot be sustained as, in an important respect, it is contrary to the decision of this court and of the Court of Appeals in reversing the determination granting the former certificate to the Niagara Transfer Railway Company. ( 103 App. Div. 123; 184 N.Y. 575.) That decision refused sanction to a like certificate for that portion of the proposed road fronting the Niagara river between Buffalo and Tonawanda, and along the bank of the canal a short distance removed therefrom between such cities. The reasons for reversing the determination granting that certificate were given in the opinion of this court on rendering that decision and need not be here repeated. It is sufficient to state that the facts which influenced that decision are not materially changed by this record. The only substantial change in the situation is by the addition to the respondent's proposed railroad of that part or terminal running around northerly, easterly and southerly of the city of Buffalo, and reaching to Lake Erie on the south. That change alone should not, in our opinion, be effective to nullify our decision and that of the Court of Appeals with respect to the important rights which were then involved, and which we think are again involved in substantially the same way in the present application.
Other important reasons also impel us to reverse this determination. It appears that the Federal government has entered upon a plan of improving the channel of the Niagara river which involves the construction of a ship canal about 400 feet wide and 23 feet deep to connect the waters of Lake Erie with the waters of the Niagara river below Black Rock, by going through the old Black Rock harbor, and which, in combination with the enlarged Erie canal, will give a waterway adequate for the largest lake vessels from Lake Erie to the deep and quiet waters below the upper rapids of the Niagara river and on down to Tonawanda. One effect of this will be to permit vessels to avoid the rapid current of the river, which at the present time is a serious menace to the navigation thereof and to the commercial interests centering upon it. Greatly increased harbor facilities will also be afforded and opportunities opened for much additional space for dockage. Several thousand acres of land will also be made available for manufacturing purposes along the water front between Black Rock and Tonawanda. This improvement will cost several millions of dollars, and already Congress has made two appropriations, one of $800,000 and one of $700,000, a considerable portion of which has already been expended. The work will cover a large portion of the river along and near which said respondent proposes to run two of its railroad lines. The testimony shows that if the lines are built they will practically nullify all the benefits sought to be accomplished by the government in making the improvement, and will require the appropriation by such respondent to its uses of much of the lands which would otherwise be made available for manufacturing industries, and will render the remainder of such lands altogether undesirable for such purposes. These portions of the proposed road are protested against by the president of the Buffalo Chamber of Commerce and by its transportation committee, as well as by many prominent citizens interested in promoting the business and commercial welfare of that vicinity. If they are constructed they will practically monopolize all of the remaining water front on the Niagara river, between the cities of Buffalo and Tonawanda, to the great detriment of the commercial interests of those cities. Nearly all of that water front, except the part in question, is now occupied and used by other railroads. This fact alone emphasizes the necessity of keeping this part free from a like occupancy and use. At present, as pointed out in the former decision with respect to these portions of the road, there is no public convenience or necessity to be served by any railroad at the places in question, and there is no direct testimony in this record to that effect. It appears clearly to be an effort on the part of the respondent to pre-empt the future. The action of the Federal government in this matter was induced in a large measure because the State of New York was building the barge canal. The good faith of the State is involved to such an extent that the effort to get this remaining portion of the water front of these cities should not be encouraged in the face of the protests mentioned, and after the government has entered upon the construction of the much-needed and expensive improvement referred to, and which, to a large extent, would be made valueless in case the respondent or any railroad company should be permitted to secure and occupy this water front.
There is also a motion here on the part of said respondent to quash the writ of certiorari obtained by the Buffalo Frontier Terminal Railroad Company to review the determination of the Board of Railroad Commissioners in granting the certificate in question.
In view of the conclusion we have reached in the foregoing discussion of the case on the merits, a decision of this motion cannot be of much consequence, nevertheless as the motion is here it must be disposed of. It is urged on behalf of said respondent that under the authority of People ex rel. Depew R. Co. v. Comrs. ( 4 App. Div. 259) and of People ex rel. Ticonderoga Union Terminal R.R. Co. v. Board of R.R. Comrs. (113 id. 894) it is entitled to have the writ quashed. Those cases are not authorities to that effect. In the Depew case the writ was sued out, the same as here, by a rival applicant, that is, by the Depew Company to review the determination of the Board of Railroad Commissioners in granting a certificate to the Terminal Railway Company and in refusing to grant one to the Depew Company. This court considered the case on the merits and affirmed the determination of the Railroad Commissioners in granting the certificate to the Terminal Railway Company, and held that the review of the determination in refusing to grant the certificate to the Depew Company could only be had upon an application to the court made pursuant to section 59 of the Railroad Law, which is a proceeding in the nature of an appeal. The case, therefore, is an authority in favor of sustaining the writ in question here to review the determination in granting the certificate in question. The Ticonderoga case was one where an attempt was made to review by a writ of certiorari a determination of the Board of Railroad Commissioners in refusing to grant a certificate to the applicant, and this court on motion quashed the writ on the authority of the Depew case. This was altogether a different proposition from that involved here.
The motion to quash such writ should be denied, without costs, and the determination of the Board of Railroad Commissioners reversed on the law and on the facts, with fifty dollars costs and disbursements to each relator.
All concurred.
Motion to quash writ sued out by the Buffalo Frontier Terminal Railroad Company denied, without costs, and the determination of the Board of Railroad Commissioners granting certificate to the Buffalo, Lake Erie and Niagara Railroad Company reversed on law and facts, with fifty dollars costs and disbursements to each relator.