In re the Lake Shore & Michigan Southern Railroad , 89 N.Y. 442 ( 1882 )

Tract, J.

Where the proposed route of a railroad company, as located by the filing of its map, crosses the track or tracks of an existing company, it may well be doubted whether the last-named company can apply for the appointment of commissioners under section 22 of the General Railroad Act, as amended by the act of 1871 (Laws of 1871, chap. 560, § 1), to change the route of the road proposed to be constructed. Section 28 of the same act would seem to provide the means of determining all questions involved, as between railroad companies, where one seeks to carry its line across the line of the other; but as this question is one which should perhaps be raised upon án application for the appointment of commissioners rather than upon a motion to confirm their report, and as the commissioners have refused to change the route of the proposed road, we do not think it necessary to decide it.

On an appeal brought to this court from the determination of commissioners appointed under section 22, we are necessarily limited to considering and determining questions of law. If this court had the power, it would not be practicable for it to determine the appeal on the merits. We have not, nor can we have, the evidence before us upon which the commissioners acted.

The law requires them to examine the two routes, and their conclusion must in no small degree be determined by such inspection. Ho change can be made by the commission without the concurrence of the civil engineer, and he does not concur in the change proposed. It is not within the power of the court, therefore, to determine that such a change should be made. The most the General Term or this court could do would be to send the report back where errors of law have been committed.

It is insisted that the commissioners erred in holding that they had no power to determine the grade at which the proposed route should cross the tracks of the petitioners, but that such power was vested in the commissioners to be appointed tinder subdivision 6, section 28. In this we think no error Was committed. There can be no doubt that the powers of a commission appointed under section 28, to ascertain and determine the manner in which the line of one road shall be carried across the tracks of another, cannot be limited or abridged by any action taken by a commission appointed under section 22. “ The points of crossing are not necessarily fixed by notice of the location of the new road, and failure of a company owning the previously constructed road to object to such location in fifteen days. The general provisions in regard to the location of a road are not applicable to the manner of crossing, and cannot deprive existing roads of any of the protection which the provisions in respect to crossings afford them.” (In re Boston, Hoosac Tunnel & W. R'way Co., 79 N. Y. 67.)

A commission appointed under section 28 may determine the “ line or lines, the grade or grades, points and manner of such crossing, and whether the crossing shall be beneath, at, or above the existing grade, and upon the route designated on the map of the company seeking the crossing, required to be filed by section 22 of this act, or otherwise (Subd. 6, § 28, as amended by the Laws of 1880, chap. 583, § 1), as fully as it would have had if the commission provided by section 22 had never been appointed.

It is further urged that the commissioners erred in not adopting the route as proposed by the petitioners, because the route as located by the new company runs through grounds already appropriated by the petitioners for" transfer, storage and depot purposes. We think such a question is not one that can properly be determined by commissioners appointed under section 22. If the new company has located its line over lands it cannot condemn for railroad purposes, a commission having the power to regulate the place and manner of crossing has ample authority to protect existing companies from such a violation of their rights.

We see no error of law committed by the commissioners appointed in these proceedings.

The orders of the General Term confirming the reports of the commissioners should be affirmed, with costs.

All concur.

Orders affirmed.