SYRACUSE, LAKE SHORE AND NORTHERN RAILROAD COMPANY, Respondent,
LIZZIE L. CARRIER and Others, Appellants, Impleaded with FULTON SAVINGS BANK, Defendant.
APPEAL by the defendants, Lizzie L. Carrier and others, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 6th day of June, 1911, confirming the report of commissioners in condemnation proceedings, with notice of an intention to bring up for review a judgment entered in said clerk's office on the 14th day of March, 1911, appointing commissioners in said proceeding, and also the order of reference herein, dated the 21st day of January, 1909, the order made under section 3380 of the Code of Civil Procedure and entered in said clerk's office on the 2d day of January, 1909, giving plaintiff possession of the premises which are the subject of the
proceeding, and the order appointing commissioners herein which was contained in said judgment.
Louis L. Waters [King, Waters & Page], for the appellants.
William Nottingham, for the respondent.
Plaintiff seeks in this proceeding to acquire for the purpose of constructing and maintaining thereon a double line of poles supporting wires and appurtenances for the overhead transmission of electric current at a high tension certain lands of which, it alleged in its petition, the defendants were the owners. It is a street surface railway corporation, owning and operating an interurban railroad, built on private right of way the whole distance except in villages and cities, where portions of the streets are used. The road is operated by electricity, and extends from the city of Syracuse to and through the village of Phenix. The premises sought to be acquired in this proceeding are not, nor are they sought to be used as a part of its way for trackage or construction other than the transmission line. The course of this transmission line diverges from the line of plaintiff's roadbed for its tracks at a point some distance south of the premises in question and does not again coincide with it until a point a considerable distance north thereof is reached. The purpose of this divergence is to avoid carrying the high tension wires through the village of Phenix, as would be necessary if they followed the trackage location at this part of the route. Plaintiff by agreement with the several owners thereof acquired the other lands necessary for this transmission line, but was unable to agree with the owners of the strip in question for its purchase and these proceedings for condemnation were instituted.
Plaintiff's certificate of incorporation was duly filed and recorded in September, 1905, and states that it is to form a corporation for the purpose of building, maintaining and operating a railroad and for the purpose of maintaining and operating a railroad already built. The kind of road to be built is, as stated, a street surface railroad to be operated by horse power, cable or electricity, and is to be built, maintained and operated from
Syracuse to Baldwinsville in the county of Onondaga, which places will be its termini. Prior to plaintiff's incorporation, a corporation, named Onondaga Lake Railroad Company, had built a part of this line from Syracuse northerly to Long Branch on Onondaga lake and had obtained from the Board of Railroad Commissioners in November, 1896, a certificate of public convenience and necessity under section 59 of the Railroad Law as it was at that date. (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], § 59, added by Laws of 1892, chap. 676, and amd. by Laws of 1895, chap. 545.) Afterwards this line was duly extended to Baldwinsville; and the name of the corporation was changed to Syracuse, Lakeside and Baldwinsville Railway in 1898. The property and franchises of the lastnamed corporation were sold upon mortgage foreclosure and the same were transferred by the purchaser at such sale to plaintiff, which had been organized for the purpose of taking over the property. Thereafter in June, 1906, plaintiff executed and caused to be filed and recorded a certificate of extension pursuant to section 90 of the Railroad Law (as amd. by Laws of 1895, chap. 933) and pursuant to section 6 of that law (as amd. by Laws of 1892, chap. 676) made and filed a map and profile of such extension. Neither the certificate of extension nor the map and profile thereof contained any description of, or direct reference to, the location of this transmission line, nor was any notice of the proposed extension of the railroad then given to the owners of the premises in question. The construction of the roadbed and tracks, as extended, had apparently proceeded to practical completion before plaintiff made and filed in the office of the clerk of the county of Onondaga the map and profile of the proposed transmission line, which was done October 29, 1908. This map and profile were never at any time filed in the office of the Secretary of State. This, among others hereinafter referred to, was a necessary step, provided the transmission line is to be regarded as itself an extension of the railroad. Notice of filing and that the route designated thereby passed over premises occupied by them was thereafter served on the defendant owners. Nothing was done by them to secure a change of the route proposed.
That plaintiff's proceedings for the extension of its line of
tracks and right of way therefor from Baldwinsville to and through the village of Phenix were regular in form and sufficient for that purpose I do not understand to be now questioned by appellants. It required no certificate of public convenience and necessity from the Board of Railroad Commissioners to enable it to take over and operate the railroad constructed and formerly operated by the Syracuse, Lakeside and Baldwinsville Railway, title to which it had acquired as transferee of the purchaser at the foreclosure sale. ( People ex rel. Third Ave. R. Co. v. Public Service Commission, 203 N.Y. 299.) At the time it took the proceedings to extend its road from Baldwinsville the Public Service Commissions Law had not been passed and the consent of the Board of Railroad Commissioners to such extension was not required; for the proposed extension was not to 'be practically parallel with a street surface railroad already constructed and in operation; ' in which case only did the statute then in force (Railroad Law, § 59a, added by Laws of 1898, chap. 643, and amd. by Laws of 1902, chap. 226) require that such consent be first obtained. (New York Central & Hudson River Railroad Co. v. Auburn Interurban Electric Railroad Co., 178 N.Y. 75.) But if the transmission line is to be regarded as an extension of the railroad, then, since the proceedings therein were begun after the enactment of the Public Service Commissions Law, concededly the permission and approval of the proper commission were necessary before beginning the proposed extension. (Public Service Commissions Law [Laws of 1907, chap. 429],§ 53.) Therefore, since power is not given to condemn lands for the purpose of any extension of an existing road unless such extension is authorized by proceedings taken pursuant to some statute, plaintiff would for that reason alone not be in a position to maintain this proceeding. (Matter of Greenwich & Johnsonville R. Co. v. G. & S. Railroad, 172 N.Y. 462.)
But it does not seem that the construction of this transmission line can properly be regarded as an extension of plaintiff's railroad. If it is not to be considered as an extension, then plaintiff has no authority to condemn lands therefor unless such right is given it by statute to provide ...