Brooklyn Elevated Railroad v. Nagel , 75 Hun 590 ( 1894 )

CULLEN, J.

This is" an appeal from an order made at special term condemning the- easement appurtenant to defendant’s premises, invaded or taken by the construction and operation of petitioner’s elevated railroad. An answer was interposed, testimony taken, and thereafter the application granted. Many objections, are made to granting the application, some of which only it is necessary to notice. In re Union El. R. Co. of Brooklyn, 112 N. Y._ 61, 19 N. E. 664, is conclusive as to the validity of the franchise-of the lessor of the petitioner to build and maintain its road. The power of the lessor company to lease its road is settled by authority. Woodruff v. Railway Co., 93 N. Y. 616; Beveridge v. Railroad Co., 112 N. Y. 1, 19 N. E. 489. As to the practice, it has been the common custom, since the general railroad act of 1850, for the petitioner-in condemnation proceedings to include many pieces of land, the properties of different owners. The practice has many advantages,. —the presentation of all objections at the same time, the appointment of a single set of commissioners to act in the whole class of" cases. The practice has been so common that it should not be condemned unless there is some substantial objection to it. Any party can file his answer, and, as to such party, it is from that time, in substance, a separate action. If it be irregular to join, the lands of different owners in a single petition, it is within, the power of the court to sever the cases, and the entry of an or-der or judgment in a particular case is, in fact, a severance. The objection to the description in the petition of the easements sought to be acquired is not well taken. We do not see how they could ¡be well described other than they are described, “which now are .or may be the subject of injury from a construction of said railroad or incidental to its use.”

The last objection is as to the structure and the location of the tracks thereon. If there were any dispute of the facts on this question, some of the rulings of the court on the trial would be .questionable; but there is no dispute. Plainly the tracks are not .as close together, and therefore as far distant from the house lines, as is physically possible. The requirement as to this subject by the commissioners is “the track or tracks shall be laid as far from the house line as the method of construction will permit.” This left a reasonable discretion in the company as to the location of the tracks. The method adopted doubtless did enable the company to use lighter transverse girders than had the tracks been placed in the center of the street. But this was the method of construction adopted "by the company, and we think within its power. Had the commissioners intended to prescribe the rule that the tracks should be contiguous, with space between simply •for cars to pass, we think that it would have been so stated. The .order appealed from should be affirmed, with costs. All concur.