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In re Buffalo Frontier Terminal R. Co.

Supreme Court of New York, Appellate Division

March 3, 1909

IN RE BUFFALO FRONTIER TERMINAL R. CO.

Application by the Buffalo Frontier Terminal Railroad Company to the State Railroad Commission for an order directing a certificate of public convenience and necessity under section 59 of the railroad law. The petition was refused, and, on request of the company's directors, the maps, plats, and testimony on file in the proceeding before the Board of Railroad Commissioners were certified to the Supreme Court, and an order was granted requiring the parties to show cause why an order should not be granted directing the Public Service Commission of the Second district to issue the certificate to petitioner pursuant to law. Determination of the Board of Railroad Commissioners set aside, and a rehearing ordered before the Public Service Commission of the Second district.

The petitioner was organized as a railroad corporation in January, 1904, for the purpose of building and operating a steam railroad of standard gauge from a point on Lake Erie 1 1/2 miles south of Buffalo, and in the town of Hamburg, to the Niagara river, in the town of Tonawanda, a distance of about 28 miles. The road designed was outside of the city of Buffalo, passing on three sides of said city, and crossing the tracks of all the trunk lines entering the city, and its object was to facilitate the interchange and transportation of traffic in and about the city of Buffalo among the many railroads with which it was intended to be connected. The application was made to the State Railroad Commission for the certificate of convenience and necessity, which was refused August 10, 1904. After the lapse of a year a like application was again made to said commission, and after an extended hearing the petition was again refused by a divided vote of the members of the commission December 16, 1906. Upon the request of the directors of said corporation, the Board of Railroad Commissioners on the 26th of June, 1907, certified a copy of all the maps, papers, and testimony on file in said proceeding. Upon the application of the appellant an order directed to all the parties appearing was granted by this court on the 10th of November, 1908, requiring them to show cause before this court on the 5th of January, 1909, " why an order of this court should not be made directing the Public Service Commission, Second district, forthwith to issue to the Buffalo Frontier Terminal Railroad Company a certificate of public convenience and a necessity under and pursuant to sections 59 and 59a of the railroad law." The parties appeared in response to this order, and arguments have been had upon the record transmitted from the Railroad Commission, and also upon affidavits which have been submitted.

[115 N.Y.S. 485] Edward W. Hatch and Joseph G. Dudley, for petitioner.

Clarence M. Bushnell, for Niagara Transfer Ry. Co. and Buffalo, L. E. & N. R. Co.

Lewis E. Carr, for Buffalo, L. E. & N. R. Co.

Louis L. Babcock, for Delaware, L. & W. R. Co.

Charles A. Pooley, for New York Cent. & H. R. R. Co.

Kenefick, Cooke & Mitchell, for Lehigh Valley R. Co.

Moot, Sprague, Brownell & Marcy, for Erie Ry. Co.

Pooley & Spratt, for Lake Shore R. Co.

Ledyard P. Hale, for Public Service Commission, Second District.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

SPRING, J.

Within a few days after the hearing before the Board of Railroad Commissioners commenced, the Buffalo, Lake Erie & Niagara Railway Company was permitted to intervene. This company was duly organized, and had projected a terminal railroad through the same general territory and following to a considerable degree the course of the petitioner, except that its easterly line was nearer the city than that of the petitioner's. Each company had a like purpose, and a certificate to one would in all probability result in the denial of it to the other.

In December, 1902, the Niagara Transfer Company was incorporated as a switching road through the northerly part of this same territory, and designed also for the transmission of traffic and merchandise over certain railroads of the city. It also was organized primarily to bring into availability for shipping and manufacturing purposes a large tract of land with a four-mile frontage on Niagara river north of the city. A certificate was granted to it by the Board of Railroad Commissioners August 10, 1904. The determination of the board, upon a review by writ of certiorari, was reversed by the Appellate Division, Third Department ( 103 A.D. 123, 93 N.Y.Supp. 58); and its decision was affirmed by the Court of Appeals ( 184 N.Y. 575, 77 N.E. 1194). Pending this appeal, and in June, 1905, the Buffalo, Lake Erie & Niagara Railroad Company was organized, and comprised substantially the same stockholders as the Niagara Transfer Company referred to.

Upon the hearing of the proceeding now under review, a large amount of proof was taken by the Board of Railroad Commissioners, bearing, first, upon the propriety of granting any certificate at [115 N.Y.S. 486] all, and second, upon the respective merits of the two applicants appearing before the board. The railroad companies now operating in the city of Buffalo gave proof tending to show that upon the consummation of the plans already devised, and some of which were in course of fulfillment, adequate facilities would be provided to take care of all the enormous freight business of the city, including whatever was interchanged at that point in order to reach its destination. There are tracks of 13 different railroad companies entering the city of Buffalo, and they own vast tracts of valuable land and many hundreds of miles of switch and freight trackage in the city. The title to the extensive harbor and water frontage adjacent to the city is in the railroad companies, so that there is no opportunity for the location of a manufacturing plant or business enterprise requiring a large site along the lake or river within the city; and the proof tends to show that industrial organizations of magnitude have been prevented from locating in the city for the reason that there was no vacant property available for the operation of their plants.

Again, it appears that there has been of late years much congestion of traffic, both of that coming into the city by the lake, and also where transshipment from one steam road to another is required, and consequent expensive delays have been frequent. One witness, testifying as to the difficulty of disembarking merchandise in the harbor, said that in the fall preceding 130 vessels were delayed in unloading from 2 to 24 days.

The Buffalo Creek Railroad in the city of Buffalo is a connecting terminal railroad 4 1/4 miles in length. The proof tends to show that it is inadequate to take care of the freight business of the connecting roads. It also appears that the land adjacent to its tracks is mainly taken up by elevators and industrial plants and enterprises, and there is little available space for other projects to be developed.

It is the contention of the petitioner and also of the competing company that a terminal railroad connecting with all the railroad lines devoted principally to the business of interchanging freight and traffic for a small charge would forward the merchandise without delay, and be able to take care of all which would otherwise be stalled in the city. Evidence was given to fortify this position by men engaged in the railroad business, and who testified to similar lines in other cities, and that the effect had been to facilitate the expeditious movement of freight. Again, it was claimed on their behalf that both north and south of Buffalo ample facilities of water frontage would be afforded, and that any large plant might be located with a terminal line connecting with all the trunk lines, so that it ...


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