Opinion
01-22-1896
NATIONAL DOCKS & N. J. J. C. RY. CO. v. PENNSYLVANIA R. R. et al.
Charles D. Thompson and Charles L. Corbin, for complainant. James B. Vredenburgh and R. V. Lindabury, for defendants.
Bill by National Docks & New Jersey Junction Connecting Railway Company against the Pennsylvania Railroad and others to enjoin defendants from interfering with its construction of a passage for its road across the route of defendants. Decree for complainant.
The bill is filed by the National Docks & New Jersey Junction Connecting Railway Company to procure an injunction restraining the Pennsylvania Railroad Company and the United New Jersey Railroad & Canal Company, from obstructing the complainant in its work of constructing a passage for a railroad across the route of the defendants, according to a certain plan of crossing annexed to the bill, and from placing and maintaining cars upon certain tracks in the yard of the defendants in such manner as to prevent the cutting of those tracks. The cutting of the tracks mentioned is involved in the plan of crossing adopted by the complainant. This plan was adopted by the complainant in the trial of the appeal from the report of the commissioners in the proceedings for condemnation of the right to cross the yard of the defendants. The locality where the road of the complainant proposes to cross that of the defendants is a yard known as the "Waldo Avenue Yard." This yard is a short distance from the elevated terminal station of the defendants at Jersey City. It has been operated as presently used for about five years. The locality was originally an elevated tract of land, with an irregular surface, lying on the north side of a street known as "Railroad Avenue." This surface, by excavation and by filling, was brought to a grade requisite for its use in connection with the main tracks of the defendants, as those tracks were placed upon the elevated iron structure which now supports them and the terminal station. The surface of this yard is covered with a network of tracks, and these tracks are connected with the terminal passenger station by two other tracks. The yard is used for the purpose of distributing the cars of the trains arriving at Jersey City. When a train reaches the terminal station and discharges its passengers, it is seized by a yard engine, and drawn up to this yard. The train is then broken up, its several cars are put upon different tracks in the yard, where, with other cars already there or to be placed there, they, by new combinations, form new departing trains. The cars are there cleaned, the air brakes tested by compressed air produced in a boiler house and carried by pipes through the yard. The cars are there tested and heated with steam generated in boilers and carried by pipes along the southerly tracks in the yard. The cars are there watered, viz. with drinking water from pipes, running from a reservoir through the yard. The train, when so prepared, is, when needed, pushed into the terminal station, ready for its departure. It is thus perceived that a yard of this character somewhere in the vicinity of the terminal yard (the terminal yard admittedly not having the capacity for this work) is an indispensable feature in the operation of defendants' road. As already observed, across the property of the Pennsylvania Railroad Company, upon which this yard is placed, the complainant claims thatIt has condemned a route for itself. Over this route of crossing so condemned there are now in place, and used by the defendants, a large number of tracks; the three most northerly being those over which the passenger traffic of the Pennsylvania Railroad Company passes to and from the terminal station, and the next southerly being the westbound engine track leading to the roundhouse located within the yard; then a short distance to the south of these there is the east-bound engine track, leading from the roundhouse to the terminal station; then there are two short tracks leading to the coaling platform. To the south of these tracks, and at some distance from them, is the first of a series of 21 tracks used for the purposes already indicated. These 21 tracks are located side by side, as closely as they can be operated, and with no space to the north or south of the group to which the northerly or southerly tracks can be shifted. The manner of crossing the defendants' property upon which these tracks are placed, as proposed by the complainant, involves the permanent elevation of these tracks at the point of crossing. The elevation of track No. 1, the extreme southerly track, above its present position, is to be 16 inches. The extent of the elevation diminishes slightly for each until the northerly track is reached, when it will be raised about 7 inches above its present position. The plan of crossing proposed also involves the disuse of 3 of the 21 tracks during the time required to complete the structure which the crossing company proposes to build. Stated in detail, the method of the proposed crossing declared by the complainant is this: The complainant will excavate across the yard a trench 54 feet in width, upon each side of which a wall is to be built, and resting upon these an arch was to be sprung, upon which the tracks of the Pennsylvania Railroad Company are to be supported. The crown of this arch will be on such a grade as to compel the elevation of these tracks in the manner and to the extent just indicated. The method by which this work is to be executed was declared at the trial of the appeal from the award of the commissioners, and upon this declaration the damages were measured. The connecting company declared that they will begin the work of excavation and construction of the arch at the southerly side of the yard, and will progress with the same in sections northerly from the point of beginning. They declared that the connecting company will remove from their right of way the three southerly yard tracks of the Pennsylvania Railroad, being tracks Nos. 1, 2, and 3, upon the commencement of their work, and thereafter will keep open, during the progress of their work across said yard tracks, three of the yard tracks of the said Pennsylvania Railroad crossing the route of the connecting company, which tracks shall be adjacent to each other; and the connecting company will complete their arch in sections, so that when yard tracks of the Pennsylvania Railroad Company in excess of three in number shall be removed from the route in the course of construction, an opportunity should be afforded concurrently therewith to the Pennsylvania Railroad Company to relay and restore to use a like number of those previously removed across the completed section of the arch; so that said Pennsylvania Railroad Company, during the contruction of said arch, may at all times have the opportunity to maintain and use all the yard tracks except three. It was further declared that the connecting company will support the sides and the north end of each section of their excavation, and for the further protection of the yard tracks next north of and adjacent to each section excavated will, upon beginning excavation in such section, place stringers under such track across the route of the connecting company, commencing with yard track No. 4, and when that track is taken up will shift the stringers to the track crossing the route next north of the second section excavated, and so on across the yard; such stringers to be placed in the manner usual in such construction, and so that trains may be run over the track, until such tracks may be removed by the connecting company as above set forth; which stringers shall be placed under each track in such manner as to leave it substantially at the elevation at which it may be found at the time the stringers are put in place. It further declared that the connecting company will locate the northerly line of the most northerly section but one of their excavation at least 16 feet southwesterly from the nearest point of the southwesterly rail of the west-bound engine track, so that the east-bound engine track may be operated over the side space left between the excavation and the west-bound engine track; the center line of the east-bound engine track to be located not more than 14 feet distant from the center line of the west-bound engine track across the route of the connecting company during the progress of the excavation in said section. And the connecting company will not remove said east-bound engine track from said location until the arch shall be constructed so far northerly that the east-bound engine track can be shifted and used by the owners across the completed part of the arch, if they desire so to do.
The complainant has already prosecuted its work nearly to the line of track No. 1, and has made an excavation for the foundation. The bill charges that after notice to the defendants that track No. 1 would soon be required to be cut, its superintendent replied that he was instructed to protect their possession of all tracks in the Waldo avenue yard; and its attorney replied that they intended to maintain their tracks at all hazards. This is not denied. It appears also that at that time there were cars standingon tracks Nos. 1, 2, and 3, none of which were removed, save temporarily, to be replaced by other cars; that defendants caused a large number of gondola cars, containing ashes and cinders and other refuse to be thrown upon the slope and upon the workmen engaged in the excavation below, and that on the next day they brought a number of cars loaded with stones, which stones were disposed of in the same manner. The prayer of the bill is that the defendants may be enjoined from obstructing the complainant in its construction of its railroad upon the plan and in the manner stated, and from placing and maintaining any cars within the route upon tracks Nos. 1, 2, and 3, until complainant shall have completed its arch across said tracks; and from maintaining cars or other obstructions upon any other tracks within complainant's route, under which they desire to excavate in the progress of its construction.
Charles D. Thompson and Charles L. Corbin, for complainant.
James B. Vredenburgh and R. V. Lindabury, for defendants.
REED, V. C. (after stating the facts). The defendants at the start raise a question which lies at the threshold of complainant's right to an injunction. This question does not involve the manner by which the complainant proposes to cross the property of the defendants, but it denies the existence of any right whatever in complainant to come within the limits of defendants' property. The defendants deny that the complainant has perfected its condemnation proceedings by a legal tender of the amount awarded by the jury, or by the payment into court of the entire amount of the sum due to the defendants by force of such award. The facts upon which those insistments are based are these: The verdict on the trial of the appeal from the award of the commissioners was rendered on July 26, 1895, for the sum of $130,000. Judgment was entered upon that verdict on July 31, 1895. On August 1st following the complainant tendered to James B. Vredenburgh the amount of $130,000, together with six days' interest upon that sum. Mr. Vredenburgh refused to accept the amount tendered. On August 5th, on notice to Mr. Vredenburgh, an order was made that the amount tendered should be taken by the clerk as paid into the circuit court. It is objected first that the tender to Mr. Vredenburgh was not a legal tender to the defendants, and it is objected secondly that interest from the time of the verdict up to August 5th, the date of the payment into court, should have been paid into court with the principal sum. The general railroad act (Revision, p. 929, § 101) provides: "That in case the party or parties entitled to receive the amount * * * found by the jury, shall refuse upon tender thereof being made, to receive the same, or shall be out of the state, or under any legal disability, then the payment of the amount found as aforesaid, into the circuit court of the county wherein the said land lies, shall be deemed a legal payment" In respect to the existence of this condition precedent to a legal payment into court, namely, a legal tender, or the existence of an excuse for such tender, I am of the opinion that the condemning company did all that they were called upon to perform. In reaching this conclusion, I do not deem it necessary to say that in all cases of condemnation a tender to the attorney who appears in the condemnation proceedings for the landowners is an efficient tender. But as the parties were conditioned in this case, If a tender was essential at all, the method adopted in making it in this instance seems the only one possible. The interest in the land condemned was a double interest. The interest of the United New Jersey Railroad & Canal Company, the lessors, however shadowy it may be, as well as that of the Pennsylvania Railroad Company, the lessee, is represented in the amount awarded by the Jury. Bright v. Platt, 32 N. J. Eq. 362. The amount of the respective interests of the lessor and lessee in this single sum could not be measured by the connecting company. No tender of a less amount than the award could have been made to either company, nor could there have been made a tender to either of the entire amount, for they were not joint owners of the property condemned. Under these conditions, a tender made to that attorney who had represented the owners of all the interests condemned during the condemnation proceedings, and still represents them in all the litigations involved and springing out of those proceedings, was, in my judgment, a sufficient tender. It may be remarked, in addition, that the Pennsylvania Railroad Company is a foreign corporation, upon whom, by the statute, no tender need have been made, as a condition precedent to a payment into court.
Nor do I think that an insufficient sum was paid into the circuit court. If the tender was good, it, followed by payment into court, stopped the running of interest from the time of the tender. Now, It appears that interest was paid up to that date. Again, the legal evidence of the final conclusion in the appellate proceedings was the entry of judgment. This is an essential feature on every appeal. This was so held by the court of errors in Ringle v. Board, 56 N. J. Law, 661, 29 Atl. 483, in construing statutory language in respect to condemnation proceedings, which was lingually similar to that of section 101 of the general railroad act. The verdict became a finality as a debt when the judgment was entered, and the amount of Interest from that time to the date of the payment into court was included in the sum paid.
The defendants next insist that, even if a right to cross has been condemned, yet the manner of crossing proposed by the complainant is in excess of such right. The first proposition in support of this insistence is that the cutting of the three tracks as proposed is the exercise of an exclusive right pro tanto in the property of the defendants; that the petition and amended plan of the complainant does not seek to acquire exclusive possession of these tracks; and that all that the complainant can acquire is a use, common with the use of the defendants, of the place of intersection. The second proposition is that the cutting of these tracks would deprive the defendants of the right to fully, fairly, and freely exercise their franchises. The third proposition is that the permanent elevation of all of the defendants' tracks and the deprivation of the use of three of them during the process of constructing the proposed tunnel, if it can be justified at all, can only be vindicated upon the ground that such interference is absolutely necessary to effect a crossing.
In considering the first of these propositions it is essential that it should be clearly understood what is meant when it speaks of the condemnation of an exclusive right in defendants' property. The proposition that there is no power in any railroad to condemn an exclusive right in the property of another corporation, is too well settled for any present discussion. That the legislature could have conferred by express grant to this class of public corporations power to condemn such exclusive right is undoubted; that it has never done so is admitted; and it is entirely settled that from the general powers to condemn this right does not flow. A railroad company possesses the power under such a grant to condemn only a right to cross, the use at the point of crossing remaining common to both roads. Now, it is entirely clear that the proposition of defendants does not mean that the plan proposed results in the permanently exclusive use of any of the property of defendants. It can only import that there will be a temporary deprivation of the use of the three yard tracks during the period required for tunneling and arching the complainant's way; for it cannot be pretended that the slight permanent elevation of the yard tracks will, after the completion of the work, preclude the use of those tracks by the defendants substantially in the same manner as they are now used. So the question resolves itself into the query whether the method of crossing which temporarily puts into disuse 3 of the 21 tracks will so interfere with the operation of defendants' road as to be unwarranted by the circumstances under which the complainant is compelled to construct its crossing. This question will be further considered hereafter.
The remarks already made seem for the present to dispose of the objection that the petition and amended plan do not seek the condemnation of an exclusive use of defendants' tracks, for it is not contended by the complainant that they are condemning any exclusive right to use the tracks of the defendants. What it claims is that in effecting the crossing, which, when completed, will leave the exclusive use of those tracks in the defendants, they have the right to temporarily interfere with those tracks, to the extent defined in the plan. Whether such an interference is justified will, as already observed, be again discussed. In respect to the second proposition, the remarks already made are in a degree pertinent. The point involved in this proposition is that, if this manner of crossing will prevent the defendants from fully, fairly, and freely exercising their franchises, it is an illegal method. This proposition is framed in conformity with the language of the chancellor in delivering the opinion of the court of errors in the case of National Docks & N. J. J. C. Ry. v. United Companies, 53 N. J. Law, 217, 21 Atl. 570. He there said that the manner of crossing "is not to be destructive of the ability of the road crossed to fully, fairly, and freely exercise its franchises." In that case the question was whether the crossing company could adopt a plan of crossing which involved the permanent elevation of the main line of the defendants' road 3 feet and 10 inches, and the elevation of its yard above its then grade a height ranging from 3 feet 10 inches on the north to 8 feet on the south. It was in respect to the permanent result of this crossing upon the franchises of the crossed company that the opinion was dealing, and it laid down the rule that complainants, by their crossing, could not destroy the ability of the crossed company to exercise its functions as a public corporation. So the cases cited in support of this rule are in this respect of the same character. The principal one is New Jersey Southern R. Co. v. Long Branch Com'rs, 39 N. J. Law, 28. In this case the commissioners had laid out a street longitudinally over a strip of land belonging to the railroad company, upon which was placed a freight track in use. The existence of the street inasmuch as both street and railroad could not exist in the same place, would have excluded permanently the railroad company from all use of this land. And the inability of the commissioners, under their general powers to condemn for streets, to take this property, was put upon the ground that it condemned a permanently exclusive right to the property of the railroad company. In the case of New York & L. B. R. Co. v. Drummond, 46 N. J. Law, 644, the question was whether a public road crossing a railroad track so as to make necessary the permanent removal of parts of certain platforms laid for the use of passengersand freight was the legal exertion of the power to condemn. The road would permanently displace the platform, and the court held that the parts of the platform were not so essential to the enjoyment of the franchises of the company that they could not, in subservience to the public necessity and convenience, be removed out of the way of a public road. In National Ry. Co. v. Easton & A. R. Co., 36 N. J. Law, 181, the only pertinent ruling was that by the condemnation the defendant would acquire simply a right of way over the lands, and incidentally the power to cross the track of the elder company. In Lehigh Val. R. Co. v. Dover & R. R. Co., 43 N. J. Law, 528, the point litigated was the right of the railroad company to cross the Morris Canal by a lift bridge resting upon stone abutments, and level with the lock walls. The court merely reannounced the doctrine that one corporation could not take the exclusive use of a corporate property necessary to the exercise of its authorized powers, as it resulted in the destruction or diminution of the franchises of the corporation; but held that the right to cross was acquired, and the manner of effecting it was not unnecessarily inconvenient to the canal company. In the case of Pittsburgh Junction R. R. Co.'s Appeal, 122 Pa. St. 511, 6 Atl. 564, cited in this argument, the crossing company attempted to run at grade through a coal yard, repair yard, and coal shed. 'The attempt was defeated, because, in the language of the court, "it was not an attempt to cross the yard and tracks with a common use, but absolutely to take a portion of the yard for the sole use of the new company, and that it could not be taken for its exclusive occupancy." It is perceived that the cases which preclude the crossing company from depriving the crossed company of its ability to fully, fairly, and freely exercise its franchises are referable to the completed work and its consequences upon die franchises of the eider corporation.
In respect to the power of interference with the property of the landowning company in effecting a crossing it seems entirely obvious that it cannot be deemed that the temporary deprivation of the ability of a crossed company to exercise its franchises may not in many instances be essential to the accomplishment of that purpose. The smallest grade crossing of a busy railroad, which crossing merely involves the placing of a frog, may for a time block its traffic, and so prevent the full and free exercise of its franchises. A much more conspicuous instance may be imagined, where the only possible method of crossing involves the interruption of traffic for much longer periods of time. Now, whether the right to cause such disturbance rests alone upon the existence of an absolute necessity, or it may be exercised when the condemning company has reasonable need for it, in either view occasions must arise when such disturbances of the full and free exercise of a company's franchises must be permitted.
This conclusion leads to the next proposition of the defendants, which proposition involves the consideration of the conditions which must exist to legalize such disturbance. The proposition, as already stated, Is that the condemning company cannot in constructing its crossing, put in disuse a yard track of the elder company, unless such act is necessary in the execution of the work of constructing the new road. The word "necessary" is employed in its original, absolute sense; the insistence being that no considerations of expedition or amount of labor or skill or expense involved is to enter into the question at all. The point is that, if the condemning company can secure a way across the existing road, by the establishment of any possible grade for its road, or by the use of any possible method of construction so as to avoid disturbing the use of the elder company's tracks, then it is bound to do so, no matter how long a period it may require to construct the crossing, or how dangerous, how inferior, or how expensive may be the method it is compelled to employ. It is perceived that according to this theory nothing will justify even a temporary interference with the use of the tracks of the elder company but the existence of an inexorable necessity. In support of this theory, the cases of Reg. v. Wycombe Ry. Co., L. R. 2 Q. B. 310; Fenwick v. Railway Co., L. R. 20 Eq. 544; Pugh v. Railway Co., 12 Ch. Div. 274, 15 Ch. Div. 330; and Norton v. Railway Co., 9 Ch. Div. 633,—are cited. These cases were all constructions of the railway clauses act, which empowers railway companies to take and occupy land, so long as may be necessary for the construction of a railroad, for workshops, and to deposit work-up materials used for constructing the road on such lands, and to divert roads and streams of water, if such diversion is necessary for the construction of the railroad. The court held that parliament had expressly granted these extraordinary privileges to the railroad company to be exercised when necessary, and that the word "necessary" in such case meant more than merely convenient; that the diversion could not be made merely because it would diminish the expense of the construction of the railway; that private land could not be used for a mortar mill merely because it was less expensive and more convenient to manufacture the mortar at that point. In these cases the grant was to occupy private property, to divert streams to the injury of riparian owners, and to change the course of public highways. The grant was by the terms of the act limited to those instances where the necessities of the building of the road required this exertion of exceptionalpower, and the grant of power was properly strictly construed against the grantee in favor of the public and in favor of the private owners, whose property was injuriously affected. In Easton & A. R. Co. v. Inhabitants of Greenwich, 25 N. J. Eq. 565-569, in construing a statute which provided that if a railroad company should find it necessary to change the location of any portion of any turnpike or any public road, they are thereby authorized and empowered to do so, the court of appeals, while holding that the existence of the necessity was a question for the court, employed this language: "Whether the necessity for a change of location of a public road must, as seems to be held by the chancellor, be an absolute necessity to make the change in order to construct the railroad, or need only be that reasonable necessity which arises when, without the proposed change, the company would be seriously inconvenienced, or put to great and unreasonable expense, is a question upon which no opinion need be intimated." And it may be remarked that in the case of Transportation Co. v. Hancock, 35 N. J. Law, 537-546, in interpreting the meaning of the word "necessary," as used in respect to property necessary to a railroad company for the accomplishment of the objects of their incorporation, and so exempt from taxation, the court of errors defined the word with more liberality. "Power necessary to a corporation," said the chief justice, "does not mean simply power which is indispensable. Such phraseology has never been interpreted in so narrow a sense. There are few powers which are in the strict sense absolutely necessary to these artificial persons, and to concede to them powers only of such a character, while it might not entirely paralyze, would very greatly embarrass their operations." And the definition of the word "necessary" as it was employed in the federal constitution, and defined in the case of McCulloch v. Maryland, 4 Wheat. 414, by Chief Justice Marshall, was invoked in support of the more liberal view. But, whatever view may be taken of the force which should be accorded to the word "necessary," it is not perceived how the cases cited are here pertinent. If the general railroad act had provided that the railroad company, in constructing a crossing over another road, should have the power to remove the tracks of the older company, if such removal became "necessary" in making the crossing, then these cases would be pertinent, although they might not be deemed controlling. But the general railroad act contains no such provision. The power to cross is contained in the exception to the proviso to section 36 of the general railroad act. It also springs out of the right to build a railroad between terminal points, which involves ex necessitate the right to cross whatever lies inter-termini. The right to cross therefore may be said to rest upon necessity. But neither by the terms of the statute nor by necessary implication is the adoption of any particular method of crossing dependent upon the existence of necessity. The manner of crossing, whether at grade, above or below grade, is left to the judgment of the crossing company, subject to judicial supervision. The supervisory power of the court is to be exercised to the extent that no more interference with the older company's road or disturbance of its business shall result than is necessary in executing the work of crossing in a reasonable manner. If the standard of absolute necessity be applied, then it is not perceptible how grade crossings, in most cases, could be constructed at all; for such crossings must, in nearly every instance, result in interference with the operation of the road of the older company; and scarcely any predicament can be imagined where the expenditure of money will not secure a crossing above or below grade. All that can be exacted of the crossing company is that the plan of crossing is a reasonable one, under the circumstances of the particular case, and when adopted is so executed as to interfere in the least degree with the business of the crossed company. This is obviously the view of Mr. Justice Knapp in delivering the opinion of the court of errors in Lehigh Val. R. Co. v. Dover & R. R. Co., 43 N. J. Law, 528, where, after indicating the right of the Lehigh Valley Railroad Company to cross at all, used the following language: "The right to cross is clear, and the manner of effecting it is not unnecessarily or unreasonably inconvenient to the canal company." A method of crossing which would put into disuse all the tracks of an important trunk line for an indefinite period could hardly be justified by any conceivable difficulty in otherwise executing the work, and the proposed disuse might be so entire, and its period so prolonged, as to become practically the taking of an exclusive right, which power, as already observed, does not exist. On the other hand, a plan which involved but a slight interruption of traffic on the older road, might be justified, although such interruption could be avoided by the adoption of a more expensive or inconvenient method of crossing. In the language of the chancellor employed in delivering the opinion in National Docks & N. J. J. C. Ry. v. United Companies, 53 N. J. Law, 217-223, 21 Atl. 570, "the purpose of the law is to preserve, multiply, and maintain highways for the development of the country and the general public benefit." It is the policy of the law, therefore, to see that the ability of an existing corporation to serve the public shall not be unnecessarily impaired. It is equally the policy of the law that the service which the new corporation proposes to render shall not be lessened or impaired by unreasonable expense, or by unreasonably inferior methods of construction or operation. The degreein which each company must yield its own convenience and private interests must be determined by what is the most reasonable course to be taken to preserve the continuity of the existing public service on the one hand, and securing the best and most efficient service from the new corporation on the other hand. Now, leaving the region of generalities, we confront the conditions which characterize the present crossing. The question is whether the present plan will entail such a degree of injury upon the defendants, and such disturbance of its traffic, as to make it reasonable that the complainant should adopt another plan of crossing. This involves, as a matter of course, not only a consideration of the effect of the plan upon the operation of defendants' road, but also a consideration of the ease or difficulty with which the complainant can employ a less or an entirely nontrack-disturbing plan. That the place selected for the crossing is the only practicable point is settled by the former decision of the court of errors.
The position taken by the defendants is that the cutting of their tracks successively, as the work of tunnel building progresses, will practically put in disuse all of the parts of these three tracks which lie east of the proposed tunnel; that the capacity of the yard is now no more than sufficient for its works; and that the defendants have no other available unused space to which this work can be transferred. It is insisted that, in consequence of such deprivation of the use of the eastern portion of the three tracks, it will become impossible for them to drill, clean, heat, and water their cars, break up arriving trains, and form and dispatch departing trains of the number and size and frequency that the public service requires, and in the manner in which they now operate their road. A number of witnesses in support of and in refutation of this view were sworn. Those of the defendants expressed generally their opinion that as the yard is now operated it is worked up to its full capacity. In enforcing this opinion the method in which the yard is used was developed. The trains arriving at the terminal station are drawn up on the southerly of the 4 tracks leading from the station to the yard, and are switched onto track 8 of the 21 yard tracks. Track No. 8 is the artery by which all trains are introduced into the yard. The different cars of a train are then taken separately, or sometimes by couples, and put upon separate tracks. This is accomplished by means of two ladders. Ladder No. 1 consists of two tracks, one leading off to the west from track No. 1, and the other leading from track No. 8. These tracks converge until they meet in a single track. Ladder No. 2 consists also of two tracks; one leading off from track No. 8, and the other from track No. 10. These tracks also converge and meet in a single track. Into ladder No. 1, by switches, all tracks between 1 and 8 lead. Into ladder No. 2 all tracks form 8 to 16 lead. Tracks 17, 18, and 19 are connected with another track leading off westerly from track 16; tracks 20 and 21, with still another track, which is connected with the preceding track, and by switches with all the tracks, leading off westerly from the ladders. Generally speaking, the Pullman cars are placed on tracks 16 to 21. The trains are made up to be pushed down to the terminal station on tracks 9 to 16, and the cars are located temporarily, to be used when needed, on tracks 1 to 7. The point of all this is to show that all this work of drilling, shifting cars, and making up trains is done from the westerly end of the yard; that, if any of the three tracks are cut, it will be impossible to run any cars upon that portion of any of the three tracks east of the cut, by working from the west; that the only manner in which the easterly part of this yard can be used is by running the cars upon these tracks at the easterly end from one of the main tracks leading to the terminal station. Now, it is claimed that, save in exceptional instances, this cannot be done without an impracticable interference with the present use of tracks 1 and 2 on the main line; that the drilling at the east end, which this will necessarily require, will stop all trains running into the yard or track No. 1, and going out on track No. 2. It is claimed, therefore, that the trackage of the three tracks east of the cut, will be lost; that this space is equivalent to room for 30 cars; that, besides this loss of space, the shortening of the tracks will interfere with the making up of trains; and that the remaining trackage is insufficient to manipulate the cars and trains. In support of the view that the remaining space is insufficient for their work, tables of the number of trains received at and dispatched from the yard, the average number of cars to each train; the length of the cars, the extent of the available trackage, excluding clearage and working room, were exhibited. From these opinions and figures defendants claim that it is established that the loss of space which will follow the cutting of these tracks will prevent the handling of their business in their present yard, and they claim that they have no other available space which can be put to the same use. On the other hand, witnesses for the complainant, who examined the yard, expressed the opinion that the eastern portion can, after the cutting, be used for those cars the less frequently used; that a switch can be placed connecting track No. 8 with the east-bound engine track; that the movement of the drilling engines can be so accommodated to the movement of the trains moving in and out of the yard as not to seriously interfere with its operation; that thus the loss of trackage will be confined to nine cars, three upon each of the cut tracks. The opinion of some of complainant's witnesses is to the effect that, assuming the lossof all the trackage to the east, yet there is room upon the remaining usable portions of the tracks for the practical operation of the yard. In support of this view, tables of measurements of the entire tracks of the yard, and the number of cars which it would accommodate, are exhibited. One witness for the complainant makes room for 313 cars of an average length of 60 feet, after leaving space on each track of a half car's length. He further testifies that he counted in the yard at one time, in July, 1893 (in the centennial year), 272 cars. He further testifies that, by actual count, made on six different days in December last, at different intervals of time during the day, he found the highest number of cars there at any one time to have been 210. From all this it is argued that the capacity of the yard to handle 272 cars is demonstrated by the fact that they were there, and that the December count shows that the present traffic is so far short of the traffic of 1893 that the loss of trackage caused by the cut will still leave space enough for operating purposes. The opinion of complainant's witnesses is further expressed that, even if defendants should be crippled in operating upon the remaining trackage, yet there are other places under the control of the defendants, now unutilized, which can be put into use for this purpose; that there is space between the ladders where tracks can be placed which would accommodate 42 cars, and space for two tracks in the space next north of the ladders which would accommodate 12 cars; that there is also a plot of land, belonging to the defendants, lying on each side of and under the county bridge, which could be used for tracks; and that there are also other facilities on the meadows for the storage of cars. Objections to each of these views are interposed by defendants' witnesses. The difficulty of coupling cars upon curved tracks; the interruption of signaling between brake-men and engineers; the requirement of straight tracks long enough to make up a complete train; the difficulty of running to and from the county bridge plot, without interfering with the traffic upon the two main lines; and the impossibility of introducing switches at the east end of the yard—are, in the opinion of these witnesses, obstacles to the carrying into effect of any of these schemes. Without running the points of these counter positions into more minute details, I have reached the conclusion that the plan of the complainant will not result in the congestion of defendants' business to an extent which cannot be obviated by skill and diligence in adjusting their yard operations to the new, but temporary, conditions brought about by the cutting of the three tracks. It will result in inconvenience and expense. The plan of working in the yard, with which the agents of the defendants have grown familiar, will have to be reorganized. More switch tenders, more engines, may have to be employed. New tracks, and perhaps new pipes, may have to be temporarily laid. But, while all this will be vexatious, it is, in my judgment, entirely practicable.
This conclusion, however, does not dispose of the question involved, for it remains to consider whether the degree of expense and inconvenience which this change will create could have been avoided by any other plan of crossing which the complainant could have reasonably adopted. The standard by which this question is to be determined I take to be this: Taking into account the efficiency of the new road when completed, and the time, safety, and expense of completing it, would the additional injury to the public service, as well as to the company, caused by any other plan of construction, be as great as that entailed upon the public service and upon the defendants by this plan. As already observed, the construction of the arch inclosing complainant's railroad involves the elevation of track No. 1 to the height of 16 inches above its present grade, and the remaining tracks a less height. Now, the defendants insist that this arch can be built without putting the overhead tracks into disuse at all. The theory is that, as the excavation of the tunnel proceeds, the tracks can be elevated into their new position, and supported upon stringers until the completion of the crown of the arch, upon which they are to finally rest. Most of the testimony of the engineers upon this point was spent in showing how stringers 55 feet long, the width of the cut, could be supported, while the excavation of the tunnel and the erection of the walls and the turning of the arch was in progress,—so supported as to permit the use of the tracks for the use of moving as well as standing cars. Several plans for accomplishing this result were developed on the trial. Some propose excavating for the wall first, and leaving a core of the tunnel, for a middle support of the stringer, until the core shall have been partly excavated for turning the arch. Other plans propose the excavation of the center part of the tunnel first. All, however, involve the support of the stringer by means of posts and braces, which depend, ultimately, for their support, upon the soil itself. This soil is largely composed of filling introduced in grading the yard. The arch is to be built around these supports, the supports being changed from place to place as the work progresses.
Now the testimony of the engineers, in respect to the possibility of working out these plans, was very interesting and ingenious; but my reading of the testimony has deepened the impression made upon me by its delivery. I think that it is possible to construct an archway and support the tracks by one or more of the plans mentioned. The instance mentioned of the springing of an arch under the statute of William IV., in constructing the Londonunderground railway, and other instances adduced by the witnesses, enforce the fact that there are few engineering difficulties which modern skill, when provoked by necessity and backed by money, cannot surmount. I think that, if it became indispensable that an arch should be built under the main track of a railroad so posited that its track could not be displaced, such a feat of engineering could be executed. But it is entirely clear that the execution of this work, by so supporting the tracks, would involve great delay, great expense, and probably inferior work. The removal of the materials excavated; the introduction of stringers, and the appliances to be employed in supporting them; the frequent shifting of the supports; the difficulty in securing a firm base for them in the soil; the slow and difficult operation of building and turning the arch close under the stringer, embarrassed as it would be by the existing supports, and the necessity of changing them as the work progressed,—would necessarily be slow, painful, and expensive. Besides, it must be kept in mind, that it is proposed, during all the period of its progress, to have cars standing upon or moving over these tracks. This presents an unusual condition of affairs, quite different from mountain tunneling, where the overarching earth, by its own cohesion, is in a degree self-supporting, and dissimilar from working under stringers whose quiescence remains undisturbed, and whose weight remains unchanged. It must be kept in mind that the supports for all these stringers have, as their base, this soil already mentioned; that the danger of their sinking is so great as to need constant vigilance. Mr. Brown, the chief engineer of defendants' road, was speaking within bounds when he said that the supporting posts would have to be watched and blocked up all the time, night and day. Now, to my mind, it is demonstrated that an attempt to support these tracks in use during the execution of this work would not only result in a degree of inconvenience, delay, and expense extremely great, but to a still greater degree in danger to all concerned, whether in operating trains above or in laboring below. Nor do I think that this inconvenience, expense, and danger would be greatly diminished if the complainant possessed the authority to use 75-foot, instead of 55-foot, stringers. A chasm of 54 feet would have to be spanned by these stringers, and, save at the ends, they would have to be supported in the same manner as the proposed 55-foot stringers. In my judgment, in either instance, the injury to the complainant, the danger to life threatened by an attempt to effect such support, would be much more than commensurate with the injury and inconvenience which would result to the defendants by the execution of the present plan.
But it is again suggested that it was within the power of the complainant to have so constructed its arch that it would not have caused any elevation of defendants' tracks. As I understand the testimony, the present height of the crown of the arch is essential to the passing of complainant's road at the grade adopted. The depression of the crown of the arch can only be accomplished by lowering the grade of the railroad. Complainant says that the present grade of its road is as low as it can be reasonably fixed. It appears that, at a distance of 201 feet from the portal of the tunnel, their road crosses Wayne street; that the authorities of Jersey City compel it to cross above grade, and that this crossing has been effected at the lowest grade possible. From Wayne street to the portal of the tunnel the grade is now 104 feet to the mile. It is in testimony that this is quite a heavy grade. The depression of the tracks at the tunnel a depth of 16 inches, so that the crown of the arch would avoid the present tracks, would require a grade of 2.66 feet per 100 feet. The testimony shows this to be a grade which, against the traffic, is very hurtful to the operation of a road, as it requires several trains to do the work of one, on account of the inability of one locomotive to haul heavy trains up such an ascent. That the adoption of such a grade would permanently affect the usefulness of the connecting road is manifest. A very strong reason therefor should exist before its adoption by the complainant should be made compulsory. Now, no perceptible reason exists. The only possible effect of the depression of the grade would be to save the permanent elevation of the yard tracks to the height of 16 inches and less, which elevation, it is not pretended, will cause any material difference in the operation of the yard. So far as respects the effect of this grade upon the cutting of the tracks, it would seem to have no influence whatever; for the tracks would still have to be supported, if their severance is to be prevented, the only difference being that in one case they would be supported 16 inches higher than now, and in the other instance in their present position. The difficulty and danger inherent in the work would seem to be exactly the same in kind and degree.
My conclusion, therefore, is that the plan adopted by the complainant, upon which damages were assessed, is, under the circumstances, a reasonable plan, and that they should be protected in its execution by the injunction powers of this court. And I further remark that, in arriving at this conclusion, I have ignored the printed case containing the trial of 1893, on appeal from the first award. I am of the opinion that the fact that witnesses for the defendants on that trial testified that the method then adopted would necessitate the cutting of two or three tracks at a time, and that this would compel the running of cars to the meadows, cannot be proved as an independent fact. The issueon that trial was simply the amount of damages. The facts sworn to by the witnesses for the purpose of gauging or augmenting such damages was merely testimony; and, as such, it is inadmissible in another suit, except for the purpose of contradicting the testimony of any witness then sworn, and here resworn. For such purposes only, by consent, the printed testimony was used. In respect to the prayer for an injunction, contained in the cross bill, I am of opinion that the facts proved fail to show any intention to continuously trespass upon the property of the defendants, outside of the limits of the route condemned. As to the appointment of a manager, I do not see, at present, any need of such an officer. If the occasion for his appointment should arise, an application for such appointment can hereafter be made. I will, on application, settle the details of the decree.