XXX. J. H. RUSHTON V. THE ROME, WATERTOWN AND OGDENSBURGH RAILROAD COMPANY. August 15, 1889. The complainant alleges that the rates on boats from Canton, St. Lawrence county, his place of business, to Chicago, was two dollars and sixty cents per 100 pounds; to Boston, two dollars and thirty-six cents; to Utica, one dollar and ninety-two cents, and to Prospect, a point between Canton and Utica, two dollars and sixty-eight cents, and he charged a discrimination based on the fact that he could reach Prospect by no other route. The reply of the road was that the complainant did not realize the difference in expense to the road in delivering his freight at a terminal point like Utica, to which he shipped many boats, as compared with a small intermediate station like Prospect, to which he might never ship another. Subsequently the complainant informed the Board that he had adjusted the matter in dispute with the general freight agent, on the basis of the rate to Utica, and withdrawn his complaint. XXXI. IN THE MATTER OF THE PETITION OF RESIDENTS OF BATH AND GREENBUSH, COUNTY. September 16, 1889. THEIR This petition, signed by 100 residents of Bath, Greenbush and the town of East Greenbush, was lodged with the Board December 8, 1888. It requests the Board to recommend the erection of a substantial iron bridge over the tracks of the Boston and Albany, and the New York Central and Hudson River railroads in the village of Greenbush, at the place commonly known as the East Albany crossing; said bridge to contain two footwalks and a carriageway not less than thirty feet wide; the north approach to commence at the south line of the brick building known as the Boston House, and to continue with a gradual grade until the height of at least eighteen feet is reached above the said mentioned tracks, and thence continue south on a straight line about 650 feet over all tracks, thence to descend to the roadway of Broadway by another approach to commence thirty-five feet north of the north line of the frame building known as the Union Mission Chapel. The petition goes on to say that the crossing complained of contains twenty distinct tracks, and is blocked at all hours of the day and night with passing trains, and "is nothing more or less than a human slaughtering place, which demands immediate attention," and requests that the aforesaid bridge and approaches be constructed and kept in repair by the above-mentioned railroad companies. A copy of this petition was sent to the respective railroads. In answer thereto the New York Central and Hudson River Railroad Company, by Mr. Toucey, replied, that about a year ago the question came up, and the company had met the representatives of the two villages, and the representative of the Boston and Albany railroad; that a proposition had been made by the two railroad companies to the village authorities, by which the villages were to pay a certain proportion of the cost of the bridge, to be agreed upon; that the board of trustees of the village of Greenbush, however, under date of October 7, 1887, had declined to bear any part of the expense of building the bridge or to be liable for any damages that might occur thereby; that since receiving the above reply the matter had rested until the time of the receipt of the communication from this Board; that the railroad company was ready to negotiate with the village authorities for the construction of the bridge with a view to the villages bearing a portion of the expense; that this crossing had been. where it is since the opening of the railroads, and that the villages of Bath and Greenbush had grown up mainly in consequence of the business brought to those points by the railroads; that in view of this, it seemed no more than right that the villages should bear some proportion of the cost of bridging the crossing. The Boston and Albany railroad, through its president, Mr. William Bliss, requested a hearing on the petition of the citizens. A public hearing, after due notice to the parties interested, was had at the office of the Board in Albany on January 15, 1889. The petitioners were represented by numerous citizens of Greenbush, and the railroad companies by Hon. Hamilton Harris, counsel, and various officers. The petitioners contended that the numerous tracks at the crossing had been laid without authority from the trustees of the village, and had been encroachments and trespasses upon the street. Mr. Harris, in behalf of the railroad companies, on the other hand, contended that they had had authority to lay these tracks, and that, therefore, it was but equitable that the village should bear some part of the expense of constructing the bridge. Much discussion was had. The final outcome of the hearing was that the railroad companies should prepare drawings and estimates of the bridge, making separate estimates of the bridge proper and the cost of approaches thereto, and that they would build the bridge proper, if the village would agree to build the approaches. Under date of February eight, the plan and drawings were submitted by the railroad companies. The estimated cost of the bridge proper was $55,758, and of the approaches, $20,090; total cost, $75,848. The plans were submitted through this office to the board of village. trustees, and an answer was received from that body, dated February eighteen, to the effect "that the sense of this board be that the village stand no part of the cost for the building of the proposed bridge, or the approaches thereto." After further correspondence and conference between Mr. Harris and this Board, the company receded from its position calling upon the village to pay the expense of the approaches to the bridge, and finally submitted a proposition to the village trustees on June 11, 1889, to the effect that the railroad companies would erect the bridge over their tracks if the village would assume the damages to abutting property holders. This proposition was again rejected by the trustees of the village upon the ground that the railroad companies had created the nuisance, and that the village was in no way bound to pay for abating it. Furthermore, in the resolutions, the trustees intimate that they are willing to close the surface of the street beneath the bridge, and hand over to the railroad companies that land for their free use for switching and yard purposes generally. This, the trustees of the village claim, would be abundant contribution upon the part of the village to the railroad companies for building the bridge. In the meantime, and possibly in anticipation of this action by the village trustees, Mr. Harris had informed this Board that the engineers of the railroad companies were at work to alter the proposed northern terminus of the bridge so as to avoid the five or six buildings, the possible damages to which were the subject of contention. On June eighteenth, after receiving a notice of the refusal of the village to bear these damages to abutting property owners, the Board addressed the following communication to Mr. Harris: “ALBANY, June 18, 1889. "Hon. HAMILTON HARRIS, Counsel New York Central and Hudson River Railroad Company: "SIR.-The Board herewith transmits a copy of a communication from the trustees of the village of Greenbush, dated June 15, 1889, inclosing a copy of resolutions passed by that body in reference to the proposed bridge over the tracks of the Boston and Albany and Hudson River roads. It appears that the village authorities decline to assume the pecuniary responsibility for damages to abutting property holders from building the bridge. "At the last hearing before the Board, viz., April nine, you stated that in anticipation of the village declining this responsibility, your engineers were at work to alter the northern designation of the bridge with a view of avoiding the buildings and property that would be damaged by its erection. "The Board would be glad to receive drawings and plans of the bridge as modified, and also an expression of the Boston and Albany, and New York Central railroads' intentions as to building the same. "You will observe that the inference to be drawn from the resolutions of the trustees of the village is that the street under the bridge, after the erection of the same, will be given up wholly to the railroads. "The Board desires a reply at a date not later than July the first." No reply whatever was received, or notice taken, of the above communication. Upon August first, the Board directed another communication to Mr. Harris, calling attention to that of June eighteenth, and concluding with the following words: "The Board proposes to adjourn until the first week in September. Should an answer not then be received, the Board will be obliged to make its recommendations in the premises without further conference with the railroad company." No reply has been received, and the Board, therefore, proceeds to make its recommendations as indicated in the above letter. Pending the negotiations, and at the hearing in March, an order was made by the Board requesting the railroads on the one hand, and the petitioners upon the other, to submit briefs to the Board setting forth their respective arguments and claims in the case. A comprehensive and able brief, signed by H. W. Bell, chairman of the citizens' committee, was filed by the petitioners. A copy of the same was transmitted to Mr. Harris, and to Mr. Bliss, president of the Boston and Albany, and Mr. Depew, president of the New York Central. No brief whatever was filed on behalf of the railroad companies, nor was any notice taken of the brief filed by the petitioners. Mr. Bell, in his brief, gives the history of the organization of the railroads, which finally have become consolidated into the New York Central and Hudson River on one hand, and the Boston and Albany on the other. * * * * * * * He shows that what is now Broadway in the village of Greenbush was at one time an incorporated turnpike; that the turnpike in due time reverted back to the people of the State of New York, and that it became a public highway; that that portion of it within the village of Greenbush finally came under the control of the village authorities; that the various laws creating the railroad corporations and authorizing them to lay down tracks provided that "whenever it shall be necessary for the construction of their single or double track railroad or way to intersect or cross any highway * the corporation shall restore. the road or highway thus intersected or used to its former state, or in a sufficient manner not to have impaired its usefulness." (As to Boston and Albany railroad, see chapter 292, Laws 1834, as amended by chapter 262, Laws 1836, and chapter 917, Laws 1869. As to New York Central and Hudson River railroad, see chapter 216, Laws 1846; chapter 162, Laws 1832, and chapter 917, Laws 1869.) This provision was incorporated in the General Railroad Act (chapter 140 of the Laws of 1850), and appears, as before stated, in all the acts of consolidation leading to the present Boston and Albany railroad, and to the New York Central and Hudson River railroad. 66 Mr. Bell then claims that the trustees of the village of Greenbush have never given the railroad companies the right to lay down these additional tracks which have so obstructed Broadway, and that a careful search of the village records shows that they (the railroads) did not even go through the empty form of asking it." That he has carefully searched the records from 1868 to 1878, the period during which most of the extra tracks were laid, and the records fail to show that such permission was ever asked for or granted; that the only mention the village records show of this crossing during the ten years mentioned, is, that at a meeting of the board of trustees, held November 2, 1870, one of their number presented a resolution requesting the railroad companies to place a flagman upon this crossing, which resolution was adopted, but the companies have never paid any attention to the request, if they were ever notified of it. From the above statements, the Board is of the opinion that a case is made out by the petitioners against the railroads. While the latter undoubtedly were authorized to lay down single or double tracks over this crossing, they have presented nothing to show that they were ever authorized to lay these additional tracks. The Board finds after an inspection that the crossing is entirely obstructed and unsafe to cross at any time. The conclusion is inevitable that the railroad companies have failed to conform to that provision of their charters, and acts amendatory thereof, finally incorporated in subdivision 5 of section 28 of the General Railroad Act (chapter 140 of the Laws of 1850), requiring them to restore a highway intersected or touched "to its former state, or to such state as not unnecessarily to have impaired its usefulness," but on the contrary, have rendered the crossing in question worse and worse, until finally it is absolutely impassable. There is no remedy possible now but the construction of a bridge. That this obligation rests upon the railroads at their own expense, appears to have been clearly proved. CONCLUSIONS. The Board, therefore, recommends that the New York Central and Hudson River, and Boston and Albany Railroad Companies, at their joint expense, construct an iron bridge over their tracks now laid upon and obstructing the street known as Broadway, in the village of Greenbush, said bridge to have a roadway not less than twenty-two feet in width, with sidewalks on each side not less than six feet in width. Said bridge to allow not less than twenty feet head room above rail, and the grade of the approaches thereto not to exceed seven feet in a hundred. Second. That the village trustees close that portion of the street beneath the bridge, when constructed, and permit the same to be used by the railroad companies for yard and switching purposes. 13 |