Appeal from Special Term, Tioga County.
Injunction by the Village of Waverly against the Waverly, Sayre & Athens Traction Company and others. From a judgment for plaintiff, defendants appeal. Modified and affirmed.
Appeal by each of the defendants from a judgment of the Supreme Court, entered in the clerk's office of the county of Tioga, on the 18th day of March, 1908, on a decision of the court after a trial at Special Term.
The defendant Waverly, Sayre & Athens Traction Company is a corporation operating a street surface railway in the village of Waverly, and its lines extend through Waverly and South Waverly to Sayre and Athens, in Pennsylvania. In 1893 the trustees of the plaintiff granted a franchise upon certain conditions to a corporation known as the " Susquehanna Valley Electric Traction [116 N.Y.S. 1075] Company" to operate a street surface railway upon certain streets of the village described therein, one route being " through Broad street to Chemung street; thence along and through Chemung street to Ithaca street, *** and also to construct such switches and turnouts as may be necessary for the convenience and useful working of the street railroad." No part of the route described in such franchise is located west of the center line of Chemung street. One of the conditions upon which the franchise was granted was that " the center line of such railroad shall at every point along its route, except as otherwise designated by this board of trustees, coincide with the center line of the street or avenue upon which it is constructed."
The defendant the Waverly, Sayre & Athens Traction Company succeeded to the rights, privileges, and franchises of said Susquehanna Valley Electric Traction Company in 1894. The defendant Elmira, Corning & Waverly Railway is a corporation which, at the time of the trial, was engaged in the construction of railroad running from Waverly westerly through Elmira to Corning. The contractor for such construction is the defendant Powers & Mansfield Company. Broad street is one of the principal thoroughfares in the plaintiff village, and intersects Chemung street at right angles. The tracks of the defendant Waverly, Sayre & Athens Traction Company run along the center of Broad street westerly to Chemung street, where they turn into and extend northerly along the center line of Chemung street. That company has also built a line on a private right of way, extending westerly from the westerly line of Chemung street near the northerly line of Broad street, as that street is continued, about 300 feet in a cul de sac westerly of its intersection with Chemung street, and such line constructed on said private right of way connects with the line of the Elmira, Corning & Waverly Railway at a point about 600 feet from the westerly line of Chemung street.
On April 30, 1906, the traction company and the company operating the railway entered into a trackage and traffic agreement for their mutual advantage, under which they agreed to make connection between their respective tracks. None of the defendants has obtained any consent or permission from the plaintiff to build, operate, maintain, or extend the railroad or tracks in question. On the night of October 12, 1906, a little before midnight, a body of between 200 and 300 Italian laborers came to the intersection of Broad and Chemung streets and commenced digging up the street west of the tracks of the traction company on Chemung street and north of its tracks on Broad street. Such laborers were under the direction of an employéof the Powers & Mansfield Company and were the same men who were at that time employed in the construction of the Elmira, Corning & Waverly Railway Company line west of Waverly, and they were employés of the Powers & Mansfield Company. The president of the village appeared upon the scene and called out special policemen and the members of the fire department, and the laborers were driven off the street and were not permitted to complete the construction of the tracks begun by them at that place. This action followed, and the court, after a trial, has found that the carrying out of such work constituted a nuisance, that in attempting to do it the defendants were trespassers, and has granted a judgment containing a permanent injunction enjoining the defendants from constructing a railroad at the point in question, without first having obtained the consent of the local authorities having control of the streets, and from such judgment all the defendants have appealed.
Where connection is proposed to be made in a village street between interurban lines for the purpose of exchanging cars, the village trustees have the right to participate in determining the place and manner of making the intersection, though they would have no right to impose unreasonable or unusual conditions.
Frederick C. Hawkes, for appellant Powers & Mansfield Co.
Thomas J. Keenan, for appellant Waverly, Sayre & Athens Traction Co.
Frederick Collin, for appellant Elmira, C. & W. Ry.
H. D. Hinman, for respondent.
Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.
The Waverly, Sayre & Athens Company insists that, under the franchise to the Susquehanna Valley Electric Traction [116 N.Y.S. 1076] Company to which it succeeded, it has the right to construct the tracks in question because of the permission therein contained to construct such switches and turnouts as may be necessary for the convenient and useful working of the street railroad. It is not argued that the proposed construction is a " turnout" in the commonly understood meaning of that term; that is, a track in addition to a single track to permit cars to pass each other. But it is claimed that it is a switch. At the point where the movable rails of the diverging tracks connect, it undoubtedly is a " switch," as that term is ordinarily understood; but from that point, and especially from the point where the proposed diverging tracks separate from the present tracks, to the west line of Chemung street, can it fairly be regarded as a switch? We think not, and that the learned trial court was correct in holding that it was not, but that it was an extension of the line instead. A track like that appears to have been so regarded by the traction company in its petition to the trustees of the plaintiff for leave to construct a railroad from the intersection of its line at Broad and Chemung streets in a westerly direction along Broad street, where that proposed line was described to be " an extension of its present tracks," and where it was said that it is necessary pursuant to the laws of the state to obtain the consent of such trustees to enable it to construct, maintain, and operate " such extension."
The fact that the defendants took the law into their own hands and undertook under cover of night to lay down the tracks in question, until they were prevented by the public authorities, is convincing proof that they then supposed that they had no lawful right to tear up the street at that place, and that they ...