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Hamilton avenue; on Ninth avenue from Fourteenth street to Twentieth street, with the following conditions, however, which are made part of this approval:
First. The rate of speed shall not exceed that to be reasonably fixed by the local authorities of the city of Brooklyn.
Second. The poles from which the wires are to be suspended in Atlantic avenue shall be of iron or steel and erected between the tracks in the middle of the street, with brackets or arms reaching over the track on each side, unless a majority of the abutting property holders shall prefer, or the local authorities shall require, them to be erected on the curb. On Fifth avenue the wires shall be suspended from the elevated structure if an arrangement can be made with the company owning the same -- if not, from poles erected close to the existing columns on the curb. On other portions of the route the polls shall be upon the curb. All the poles shall be of iron or steel and of a construction and height appropriate to the respective streets, and before erection shall be approved by the mayor and common council.
Third. No car shall be run with less than two men to operate it. Every car shall be equipped with guards in front of the wheels, coming within two inches of the track, to prevent persons being run
Fourth. The company shall take all reasonable and proper means to prevent the currents from its wires, through leakage, induction or otherwise from interfering with the currents upon the wires of other companies, whether telegraph, telephone or otherwise.
Fifth. The company shall conform to all the reasonable requirements of the local authorities heretofore or hereafter legally imposed.
By the Board.
MATTER OF THE SECOND APPLICATION OF THE CONEY ISLAND AND BROOKLYN RAILROAD COMPANY FOR THE APPROVAL OF THE BOARD OF A CHANGE OF MOTIVE POWER FROM HORSES TO ELECTRICITY UPON THAT PORTION OF ITS RAILROAD ON CONEY ISLAND AVENUE, IN THE TOWN OF FLATBUSH AND FIFTEENTH STREET, IN THE CITY OF BROOKLYN.
June 30, 1891. This second application, dated the 29th of May, was lodged with the Board. A public hearing was had at the Chamber of Commerce, in the city of New York, on June the 11th, 1891, at 11 A. M., after public notice in the press of Brooklyn and New York. The railroad company was represented by William N. Dykman, counsel. Arthur C. Salmon, assistant corporation counsel of Brooklyn, appeared in opposition on behalf of the park commissioners, as did the park commissioners themselves. There were no other appearances in person or by letter in opposition.
The second application differs from the first, a decision in regard to which was rendered by this Board on May 18, 1891, in that the company does not apply for permission to runits cars by electricity across the plaza at the northwest entrance of Prospect Park, nor upon any portion of Ninth avenue. The company in its argument and brief
stated that it made this second application, exempting parts hereinbefore mentioned for the reason that the principal grounds of opposition heretofore were by the park commissioners against crossing the plaza by electric power, and by property owners on Ninth avenue. The park commissioners still maintain their antagonistic position however.
The controlling question at issue, so far as this Board is concerned, is whether the company has secured the consent of “the owners of one-half of the property bounded on that portion of the railroad with respect to which a change of motive power is proposed.” It appears that Prospect Park on the east side of the route, according to the affidavit of Frederick E. Buckingham, measures 4,265 feet 1, inches, and the west side 3,672 feet 4 inches. It is claimed by Mr. Salmon in behalf of the park commissioners that inasmuch as the new statute, under which this application is made (i e. section 100 of chapter 565 of the Laws of 1890), provides that consent shall be given by the “owners of one-half of the property bounded on that portion of the railroad,” etc., the words "in value," existing in the old statute, having been left out, therefore, the frontage of Prospect Park being greater than the frontage on the other side of the street, the company can not håve obtained the one-half required by statute.
The question whether the omission of the words “in value” does modify the law, has been submitted to the Attorney-General by this Board. In an elaborate opinion, dated June 23, 1891, he says: “I think, therefore, that the words 'in value' were unintentionally left out of section 100 after the word 'one-half,' or else that it was intended that section 91 of said act (wherein the words 'one-half in value' are used) was in itself sufficient designation or description of the character of the consent that was to be obtained.”
The Board, therefore, holds that the obtaining by the company of the consents of one-half in value of the abutting property holders would be sufficient.
The question then comes up whether such consent has been obtained.
Section 91 of the statute provides, “the value of the property above specified shall be ascertained and determined by the last completed assessment-roll of the city, village or town in which it is situated, excepting property owned by such city, village or town, the value of which shall be ascertained and determined by making the value thereof to be the same as shown by such assessment-roll to be the value of the equivalent in size and frontage of the adjacent property on the same street or highway.”
Prospect Park is owned by the city of Brooklyn. The Board still holds to its opinion that the consent of the city authorities is necessary as a property owner of parks or public places where such consent is necessary to give a majority in value of the abutting property, and that the substitution of the Board of Railroad Commissioners for the local authorities as the public body to give approval of a change of motive power, does not deprive the city of its rights as a property holder.
Mr. Dykman, in his brief, argues that, admitting this for the sake of argument, the company has the necessary majority. He insists that Prospect Park should not be valued at a higher figure per foot
an the highest value given to vacant property upon the opposite
side of each street. He then selects a lot on Fifteenth street valued at twenty-two dollars per running foot frontage, and upon this basis works out a slight majority in favor of the company. On Coney Island avenue he takes a lot valued at sixteen dollars a running foot, and in the same way works out a majority in favor of the company.
The Board recognizes the difficulty of establishing a rule to measure the value of Prospect Park. The statute says that it shall be determined by “making the value thereof to be the same as is shown by such assessment-roll to be the value of the equivalent in size and frontage of the adjacent property on the same street or highway.” It fails to say whether it should be improved property or unimproved property. It further says it shall be of the same size. There is no property of the same size, as Prospect Park runs back a distance of
While it would not be just to value Prospect Park to the same extent as property on the other side of the street built up with expensive buildings, on the other hand, it is not just to value Prospect Park at no higher rate than vacant lots, for Prospect Park has been improved and is improved to a greater extent, certainly, than vacant lots on the other side of the street.
The fact is that the rule provided in the statute for the valuation of city property did not contemplate just such a case as this. It was evidently meant to cover cases of small pieces of city property, such as a few lots or at most a single block.
While, therefore, the Board confesses its inability to formulate an exact rule applicable to this case, it is clearly of the opinion that the valuation of Prospect Park at the rate of sixteen dollars a foot on Coney Island avenue and twenty-two dollars a foot on Fifteenth street is not a just method of reaching a result. It can only repeat its language in the first decision, to wit : “It is the misfortune of the railroad company in this particular case that the city is a preponderating property owner on this portion of the railroad and declines to give its consent.” The Board also still holds that the petitioner is not foreclosed from appeal to the courts for the appointment of three commissioners whose determination in favor of such motive power, confirmed by the court, shall be taken in lieu of the consent of the property holders.
For the reasons hereinbefore given, to wit: That the company has not clearly shown that it has obtained the consent of a majority in value of the abutting property holders, the Board withholds its approval of a change of motive power applied for.
By the Board.
IN THE MATTER OF THE APPLICATION OF THE OSWEGO STREET RAILWAY COMPANY FOR THE APPROVAL OF THE BOARD OF
A CHANGE OF MOTIVE POWER FROM HORSES TO THE OVERHEAD ELECTRIC TROLLEY SYSTEM.
September 15, 1891. This application, dated July the 22d, 1891, was lodged with the Board. A public hearing was set down before the Board at its office in Albany at 11 o'clock on Tuesday, September the 15th, 1891,
after due notice published in the press of Oswego. The papers on behalf of the railroad company were filed previous to that date. No one appeared in person on behalf of the application, nor did any one appear in opposition thereto.
It appears from an affidavit of Francis J. Callanan, the president of the company, that on the 19th day of February, 1891, and subsequent thereto, the common council of the city of Oswego duly granted to said railroad company the permission to operate the railway by electricity through and upon the streets mentioned in the application, and that the consents of a majority of the owners of property abutting on such streets have been duly executed and filed in the Oswego county clerk's office.
An affidavit was also submitted by Mannister Worts, Thomas F. Gleason and Frank Mitchell, assessors of the city of Oswego, to the effect that they had examined the assessment-rolls for the year 1990, and the consents of the abutting property holders upon the line of the street railway, with the following results: From the corner of East Tenth street and Bridge street, along
East Tenth street and Hall road to the intersection of the New
$54,800 Consents ....
East Fourth street, from Bridge street to Utica street, total
East Utica street, from Fourth street to Third street, total value,
$13,200 12, 200
East Third and Syracuse avenue, from East Utica street to the
south line of the city of Oswego, total value... Consents...
On West Seneca street, from its present terminus at Third avenue, and across Fifth avenue at its intersection with said
Seneca street, total value.... Consents.
On West Bridge street, from East Tenth street, westerly to the
intersection of West Bridge and Seneca streets, and from thence westerly to the city line, total value.. Consents.
$793,750 479, 400
On West First street, from the corner of West Utica and First
streets, southerly along First street to the corner of Erie street,
total value.. Consents
On Fifth avenue, from West Bridge street to the intersection of
Seneca street, total value. Consents
On East Ninth street, from Bridge street to Mitchell street, total
On Mitchell street, from East Ninth street to St. Paul street,
total value... Consents
An affidavit by Emmett R. Joslyn, Niles Tice and Randolph Worden, assessors of the town of Oswego, is filed, to the effect that the total value of the property bounded on the Lake Shore Boulevard Company's road, beginning at the west line of the city of Oswego and terminating at a road intersecting said boulevard's western terminus and running to Unionville, being about two miles in length, and being the line of the proposed street railway of the Oswego Street Railway Company, is $25,610; consents, $14,100.
A further affidavit is submitted by Francis J. Callanan, that prior to the date of this application, the highway commissioners of the town of Oswego and the Lake Shore Boulevard Company have duly granted permission to the said railway company to operate the said railway by electricity along said road, known as the Boulevard.
In view of the above facts, to wit: that the consent of a large majority of the abutting property holders, and of the local authorities having jurisdiction of the highways and streets upon which the said railroad runs, have been given, the Board deems that it is justified in approving and does hereby approve of a change of motive power by the Oswego Street Railway Company from horses to the overhead electric trolley system, upon that portion of its route through and upon the street hereinbefore mentioned, with the following conditions, however, which are made part of this approval:
First. The rate of speed shall not exceed that to be reasonably fixed by the local authorities having jurisdiction of the streets or highways where the railroad runs.
Second. The poles from which the wires are to be suspended shall be of a construction and height appropriate to the streets upon which they are erected, so as to impair the use and appearance thereof to the least possible extent, and shall be approved by the said local authorities. - Third. No car shall be run with less than two men to operate it.
Fourth. The company shall take all reasonable and proper means to prevent the currents from its wires, through leakage, induction or otherwise, from interfering with the currents upon the wires of other companies, whether telegraph, telephone or otherwise.
Fifth. The company shall construct a guard wire over the trolley or feed wire and at a distance of not less than eighteen inches therefrom, so as to prevent broken telephone, telegraph and other wires from coming in contact with such trolley or feed wire, along all its lines within the city of Oswego.
Sixth. The company shall conform to all the reasonable requirements of the said local authorities heretofore or hereafter legally imposed.
By the Board.