Village of Jamaica v. Long Island Railroad , 49 N.Y. St. Rep. 365 ( 1892 )

BARNARD, P. J.

The village of Jamaica has laid out a new highway, which crosses the Long Island Railroad at grade. The question presented is whether the railroad can carry the street over its track at an elevation of some 18 feet. By the charter of the village the railroad is bound to cause a highway to be taken across its track “as shall be most convenient and useful for public travel.” Laws 1853, c. 62.¹ This chapter provides that all the provisions of the general railroad law (Laws 1850, c. 140²) shall apply to the village, and that requires the crossing to be over or under the track of the railroad, “as shall be most expedient,” provided that the usefulness of the highway be not unnecessarily impaired. There is no difference between an old highway which is crossed" by the railroad5 and a new highway which-crosses the-railroad, at,grade. .The general law regulated 'crossing highways, existing. The village charter requires all new roads to be taken across the-track as shall be most convenient, and useful for. public travel, and applies all the provisions of law in relation to crossing- streets- applicable. •The railroad company has the election of methods, and, unless the reasonable usefulness of the highway is. infringed, the selection o.f the com«pany will not be interfered with. People v. New York, Cent., etc., R. Co.,, 74 N. Y. 302. The order- refusing an injunction.should’ therefore-be affirmed,, with costs and disbursements. AH.concur.

1 Laws 1853, c. 62, relating to villages, and entitled “An act to regulate the construction of roads and streets across railroad tracks,” (section 2,) provides that “it shall be the duty of any railroad corporation across whose track a street or highway shall be laid out as aforesaid, immediately after the service of said notice, to cause the said street or highway to be taken across their track, as shall be most convenient and useful for public travel, and to cause all necessary embank ments, excavation, and other work to be done on their road for that purpose; and all the provisions of the act passed April second, eighteen hundred and fifty, in relation to crossing streets and highways already laid out by railroads, and in relation to cattle guards and other securities and facilities for crossing such roads, shall apply to streets and highways hereafter laid out. ”

2 Laws 1850, c. 140, § 24, provides that, “whenever the track of a railroad constructed by a company formed under this act shall cross a railroad, a highway, turnpike, or plank road, such highway, turnpike, or plank road may be carried under or over the track, as may be found most expedient, ” provided that the usefulness of the highway be not unnecessarily impaired.