Borough of South Waverly v. New York, Lackawanna & Western Railroad , 7 Sadler 386 ( 1887 )

OniNioN by

Me. Justice Paxson:

A careful examination of this record, aided by an able argument at bar, and an exhaustive discussion of the case in the paper books, has failed to satisfy us that the learned judge of the court below erred in dismissing the plaintiff’s bill. It is true he differed from the master in his view of the case, but the difference was not upon the facts, but upon the law applicable to" the facts.

It must be borne in mind that the railroad company had the undoubted right to construct its road over the streets in question. It was not a trespasser, nor were its acts unlawful. It had the right to cross the street in question under the provisions of the act of 1849, upon making ample compensation to property owners injured. The manner of crossing is a matter resting in the sound discretion of the company. Nothing less than a gross abuse of that discretion would justify the interference of a chancellor, after the road is built and in operation. The case as presented fails to satisfy us that there has been any abuse of discretion.

As to the alleged contract between the borough and the railroad company, of date of July 5, 1881, we have only to say that if the borough regards it as a valid contract, and believes it has been violated, it has a remedy at law thereon. As was well observed by the court below: “The whole matter, therefore, is an attempt to have the court direct and superintend the overhauling and reconstruction of the road, including the building of a bridge over Fulton street, according to the terms of the contract. This we are not inclined to undertake, for the reason that the contract, except as to the Eulton street bridge, is vague and uncertain; and if it is valid there is an adequate remedy at law.”

The decree is affirmed and the appeal dismissed, at the costs of the appellant.