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Hilton agt. The Thirty-fourth Street Railroad Company.

Thirty-fourth street, between Sixth and Lexington avenues, and claim that their property will be greatly injured by the construction and operation of the defendant's proposed road, and, if such claim be well founded, can undoubtedly maintain these actions, if such construction and operation are not authorized by law. The construction and operation of street railroads in this state are provided for and regulated by section 18 of article 3 of the Constitution, and chapter 252 of the Laws of 1884. The portion of said section 18 applicable to the matter is as follows: "No law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the general term of the supreme court, in the district in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners."

This provision of the constitution is incorporated in said chapter 252 of the Laws of 1884, in which it is also provided that "for the purposes of this act the value of the property so bounded shall be ascertained and determined from the assessment-roll of the city or town in which such property is situated, confirmed or completed last before the local authorities shall have given their consent."

The defendant having become incorporated under said act, and having obtained the consent of the local authorities to the construction and operation of its proposed road, claims to have also obtained the requisite consents of property owners, while the plaintiffs insist that all the consents so obtained do not

Hilton agt. The Thirty-fourth Street Railroad Company.

represent the one-half in value of the property, the consent of whose owners is made necessary by the constitution and statute aforesaid. Whether or not consents to the necessary amount have been obtained by the defendant cannot be determined by a mere arithmetical calculation, but depends upon the decision of several questions of law and fact, some of which are of considerable difficulty. The first question to be dealt with is whether it is necessary for the defendant to have the consents of the owners of one-half in value of the property bounded on each street or portion of street upon which it is proposed to construct the railroad, or whether the requirements of the constitution and the statute will be satisfied if the defendant has the consent of the owners of one-half in value of the property bounded upon the whole of the route over which it proposes to build its road.

The learned counsel for the defendant contends that the latter view is the correct one, but after a careful consideration of his argument I am not able to concur with him on this point. The constitution and the statute require the defendant to obtain "the consent, in writing, of the owners of one half in value of the property bounded on * * that portion of a street or highway upon which it is proposed to construct or operate such railroad." The language here used is so clear and explicit as to make it difficult to argue about the matter at all. I do not see how there can be any well founded doubt as to the sense in which the words "street" and "highway" are used. Streets and highways are both roads, and for certain purposes every public street is a highway. As a rule, however, in law and in common understanding, based upon long continued usage, a "street" and a "highway" mean two different things. "Strictly, a street is a paved way or road, but the term is used for any way or road in a city or village" (Brace agt. N. Y. Central R. R. Co., 27 N. Y., 271). I have no doubt that the words "street" and "highway" have the same meaning respectively in the constitution that the former has in almost innumerable laws

Hilton agt. The Thirty-fourth Street Railroad Company.

relating to cities and incorporated villages, and that the latter has in the body of laws of this state known as the "highway acts." Nor is there any ambiguity in the phrase "that portion of a street or highway."

It is stated by counsel that when this amendment of the constitution was originally submitted to the commission, it contained the words "each street," and that the words "a street" were substituted therefor, and he infers that such change has some significance. It seems to me, however, that 66 a street" means the same as any street," and that the phrase "that portion of a street or highway" has the same meaning and effect as the phrase "that portion of each street or highway" would have had if the latter had been employed.

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I think that the plain and unequivocal meaning of the constitution and the act of 1884 is, that when it is proposed to construct a surface railroad along the whole length of a street, or along the whole length of several streets, it is necessary to first obtain the consent in writing of the owners of one-half in value of the property bounded upon the whole length of such street, or upon each of said streets, as the case may be; and when it is proposed to construct a surface railroad upon a portion of a street, or upon portions of several streets, it is necessary to first obtain the consent in writing of the owners of one-half in value of the property bounded upon such portion of the one street, or upon such portions of each street as is, or are, to be built upon. Confirmation of this view of the meaning of the constitution and the statute, if confirmation were needed, could be found by a consideration of one of the evils which undoubtedly led to the adoption of the constitutional amendment in question, and which it was intended to remedy. It was formerly claimed that the common council of the city of New York possessed the power to authorize the construction of surface railroads upon the streets of that city, and in the year 1850, and the several years immediately subsequent thereto, ordinances were adopted authorizing private individuals to construct a number of such roads, and, VOL. I

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Hilton agt. The Thirty-fourth Street Railroad Company.

among others, one whose route was partly through Broadway. A protracted litigation followed, and it was finally decided by the court of appeals that the common council did not possess this power (Milhau agt. Sharp, 27 N. Y., 612). Pending this litigation the legislature passed an act (chapter 140, Laws of 1854) forbidding the common councils of cities to permit railroads to be constructed within their limits without the consent of a majority in interest of the owners of property upon the streets in which the railroads were to be constructed, but also confirming grants already made.

In 1860 another law was passed (chap. 10), which provided that no railroad should be constructed upon any of the streets of the city of New York except under the authority of the legislature, to be thereafter granted; and at the same session a number of acts were passed authorizing the construction of railroads in said city (Laws of 1860, chaps. 511, 512, 513, 514 and 515).

Further litigation followed, the city as well as property owners contesting the right of the legislature to pass these laws; but the validity of such acts was finally established by the court of last resort (People agt. Kerr, 27 N. Y., 188). This decision was rendered in 1863, and from that time until the adoption of the constitutional amendment, which took effect on January 1, 1875, the legislature continued to exercise exclusive control over the construction of railroads in said city. There can be no reasonable doubt that the oft repeated remonstrances of owners of property in the city of New York, who felt aggrieved by the injury done, or which it was feared would be done, to their property by the construction of some of these roads, was largely instrumental in securing the adoption of such amendment of the constitution, which was introduced by an ex-mayor of that city (Journal of Constitutional Commission, pp. 80 and 87).

Now, an examination of the resolutions of the common council, and of the acts of the legislature authorizing the construction of railroads in the city of New York, and of the

Hilton agt. The Thirty-fourth Street Railroad Company.

cases in which the numerous and bitter legal contests in regard to such construction are reported, shows that while property owners had a general ground of complaint, because of the number and character of the roads so authorized, they had also a special and particular grievance, which was this: The building of a road might be authorized which was to run through portions of many different streets, and the owners of property on most of such streets might desire to have the road built. The owners of property on one street might, however, consider that the construction of the road through that street would be ruinous to their property, and it might be entirely practicable to construct the road through the other streets without going through that one street. Still, no matter how injurious to their property or how unnecessary that the road should pass through that particular street, the owners of property upon it were absolutely without remedy if the promoters of the project saw fit to insist that such street should be included in the route. It may well be that it was this special, and in some cases almost unendurable grievance, which led to the adoption of the constitutional amendment in its present form, and that it was framed, as it is, with the express purpose and design that the owners of property upon every street through which it is proposed to construct a railroad, shall, at least, have a right to be heard before the railroad is built. In other words, if it were proposed to construct a railroad in Fifth avenue or Broadway, in the city of New York, that the owners of property on each of those streets should have the right to determine, in the first instance, whether the road should be built, and not the owners of property on Twelfth avenue or avenue C or some other remote street which might be included in the "route" of the proposed road.

The objection that, if this view be correct, the owners of property on a single street, or even a single block, might prevent the construction of a railroad necessary for the convenience of the general public, has no force. The constitution.

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