APPEAL from a judgment in favor of claimant, entered October 16, 1952, upon a decision of the Court of Claims (SYLVESTER, J.).
William R. Stevens, Gerald E. Dwyer and Arthur H. Bernstein for respondent.
Nathaniel L. Goldstein, Attorney-General (John R. Davison and Wendell P. Brown of counsel), for appellant.
The State of New York has appealed from a judgment of the Court of Claims awarding claimant, New York Central Railroad Company, damages for the taking of land in the village of Dobbs Ferry, Westchester County. The controversy arises out of the elimination of the grade crossing at Ashford Avenue and claimant's Putnam Division railroad tracks. An overhead crossing has been constructed, which carries partially relocated Ashford Avenue over the railroad tracks and the parallel Saw Mill River Parkway about one
hundred and ten feet westerly thereof. The Public Service Commission's order of February 18, 1936, as to such elimination directed that claimant's Ardsley station be moved from the easterly to the westerly side of its tracks and a ramp built connecting the parkway with the elevated structure. An amendatory order of the commission, dated October 31, 1939, also directed the construction of the ramp. The land here involved, on which the station formerly stood and which now carries the said ramp, is denominated Parcel No. 20 and lies outside the normal or reasonable limits of the railroad right of way.
The Appellate Division of the Second Department affirmed the 1936 order without opinion. ( New York Central R. R. Co. v. Public Service Comm., 251 A.D. 827; motions for reargument and leave to appeal to the Court of Appeals denied, 252 A.D. 752.) No appeal was taken from the 1939 order. The parties agree that the claim must be dismissed if the use presently being made of the ramp in any way serves a railroad purpose. Claimant's thesis is that the ramp is used solely for highway purposes and the trial appears to have proceeded on the theory that the railroad should recover in such event.
The elevated structure or overpass has been built about one hundred and forty-five feet southerly of Ashford Avenue. That avenue has been barricaded east and west of the railroad tracks to the end that the ramp connecting the northbound lane of the parkway and the overpass constitutes a substitute connection for the barricaded portion of Ashford Avenue. It was admitted for claimant on the trial that it would have been impossible from a practical engineering standpoint to carry the elevated structure over the railroad without continuing it over the parkway and that the ramp in question is an integrated part of the crossing elimination project.
Claimant advances the argument that the statute does not prohibit a railroad corporation from obtaining an award for the value of its land taken for grade crossing removal. That bare statement of fact does not suffice to sustain the view that the railroad may be compensated for such land. Implicit in the scheme for the abolition of grade crossings is the concept that property already dedicated to a public use is continuing in such use in the process of eliminating the hazards of grade crossings. Railroad corporations may be required to abolish grade crossings at their own expense. (Chi., Mil. & St. P. Ry. v. Minneapolis, 232 U.S. 430; Erie R. R. Co. v. Public Util. Comrs., 254 U.S. 394.) Obviously, in such a case they would
not be in a position to claim compensation for the use of their lands. This State has placed no such burden upon them. Until 1939 they were required to pay 50% of the cost of such projects. By 1938 it had become apparent, in view of the serious financial condition of these carriers, that such a proportionate cost sharing was so onerous as to pose a threat to the solution of the crossing elimination program. The people of the State then amended their Constitution in such manner that a railroad's proportion of the net cost of the project should not exceed 15%. (N.Y. Const., art. VII, § 14.)
It was, and has continued to be, accepted that, when land of the railroad is necessary as an engineering proposition ( Matter of State Comm. of Highways [[Town of Ripley],239 N.Y. 279, 283) or for a railroad purpose (Syracuse Grade Crossing Comm. v. Delaware L. & W. R. R. Co.,197 Misc. 192, 199, mod. on other grounds, 263 A.D. 930, affd. 290 N.Y. 632; Long Is. R. R. Co. v. State of New York,199 Misc. 1063, 1065, 1066), no compensation is allowable to the railroad. 'It is not claimed, nor can it well be asserted, that the railroad company is entitled to be compensated for that portion of its present right of way which will be used in the elevation of its tracks. I can see no difference in ...