Town of Palatine v. New York Central & Hudson River Railroad ( 1897 )

Parker, P. J.:

Under the averments in this complaint, we must assume that the “ turnpike ” which the original company owned, and which passed to the possession of this defendant under the act of 1833, was a roadway three rods in width. It may be that, under its act of incorporation, only thirty feet in width need be contained between the ditches, and only eighteen feet of this need be constructed as therein specified, but the roadway itself which belonged to the turnpike company and which the defendant took must, under this demurrer, be deemed to be three rods in width. By the provisions of the act of 1833, as well as by the averments in the complaint, the thing which the railroad company is authorized to abandon is the turnpike which it took. The statute does not provide that such company may abandon, when it desires, such part only as it is required to keep in a certain condition, viz.,. the thirty or the eighteen feet, and appropriate forever to its own use the remaining portion of the three-rod roadway ; but when it desires to be relieved from the burden of maintaining such eighteen or thirty feet in the condition required by statute, it may abandon to the commissioners the whole roadway which it received.

The method of abandonment is specified by the statute to be a notice given to the commissioners of highways. The complaint shows that not only was notice of abandonment of “ said turnpike road,” viz., the road three rods in width, given, but also that in many places in the town of Palatine" all of it has been in fact surrendered to the commissioners. An actual abandonment and surrender has, in fact, been made in such town to such an extent that it can no longer be used and maintained by the railroad company as a turnpike road. Only certain strips of it, at different places, are still retained and used by the defendant. As a turnpike road the whole has been in fact abandoned and is no longer kept in repair by the defendant. By the requirements of the act of 1833, when so abandoned by the railroad company, it becomes the duty of the commissioners of highways to keep the same in repair “ as other highways” are.

Therefore, upon the abandonment by the defendant of this turnpike in the town of Palatine, it became a highway of that town. (See, also, § 139 of the Transportation Corporations Law, chap. 566 of the Laws of 1890.) And the commissioners were authorized to bring an action in the name of the town “ to sustain the rights of the public in and to any highway in'the town, and to enforce the performance of any duty enjoined upon any corporation in relation thereto.” (Highway Law, chap. 568, Laws of 1890, § 15.)

It seems clear, therefore, that this action is well brought to compel the defendant — inasmuch as it has abandoned the turnpike and ceased to maintain it as a turnpike road — to surrender to the highway commissioners all parts of the roadway that it received under the act of 1833. Evidently the purpose of the act was to secure to the public a means of- travel over the road in question, either as a turnpike under the control and management of the railroad company, or else as a free highway under the care and control of the commissioners of the town. And when the railroad company ceases to care for and maintain it as a .turnpike road, the statute imposes upon it the duty of surrendering possession of all parts of it to the control of such commissioners. If it refuses to so do, in my opinion an action lies under section 15, above cited, to compel it to do so.

The claim that, because the portions retained by defendant cannot, from the description in the complaint, be located on the ground, therefore, this demurrer should be sustained, is not a correct one. The relief sought for is, that the whole turnpike road, being three rods wide between the northerly and southerly lines, as owned and used by the original turnpike company, and as the same was taken possession of by the railroad company under the provisions of the act of 1833, be surrendered to the highway commissioners of the town. A judgment awarding relief in such, or similar terms, and sufficiently describing the whole of such road, could easily be enforced. All the material facts necessary to warrant • such a judgment, and sufficiently describing the road, either by giving the center line of the same, or by other appropriate description, could be given in evidence under this complaint, and I, therefore, conclude that a cause of action is sufficiently stated therein.

Whether the original turnpike, or that taken by defendant under tho act of 1833, was or was not a roadway three rods in width, is a question of fact which can be determined upon the trial; and if, as claimed by defendant’s counsel, it was not, the judgment will award such relief only as the established facts warrant.

The judgment overruling the demurrer must be affirmed, With costs, and leave is given to defendant to answer within twenty days after service upon it of a copy of such judgment of affirmance, and upon the payment of the costs of this appeal and of those awarded in the court below.

All concurred, except Putnam, J., not sitting.

Judgment overruling the demurrer affirmed, with costs, with leave to defendant to answer within twenty days after service upon it of a copy of this order, and upon payment of the costs of this appeal and those awarded in the court below.