Herbert T. Jennings and Myron A. McKee, as Temporary Receivers of the Oneonta, Cooperstown and Richfield Springs Railway Company, Respondents, v. Delaware, Lackawanna and Western Railroad Company and Utica, Chenango and Susquehanna Valley Railway Company, Appellants

Herbert T. Jennings and Myron A. McKee, as Temporary Receivers of the Oneonta, Cooperstown and Richfield Springs Railway Company, Respondents, v. Delaware, Lackawanna and Western Railroad Company and Utica, Chenango and Susquehanna Valley Railway Company, Appellants. Connection of railroads — the word “ intersecting” applies to all roads which connect — commissioners appointed to determine the manner of intersection ■— it may be made oner land already denoted to a specific use, if the use will not thereby be rendered ineffectual. Subdivision 8 of section 4 of the Railroad Law and section 12 of such law, both of which relate to the intersecting or connecting of a new railroad with an old railroad, should he read together, and when so read the provision in section 12 that every railroad that shall be “intersected by any n°w railroad” shall unite with the latter in forming the necessary intersections and connections, does not mean that the intersection must amount to a crossing by the new railroad. The old railroad is ‘ intersected ” within the meaning of section 12 whenever a turnout or switch is built, or it becomes necessary to build it, in order to connect the two roads. In the event of such a junction being determined upon by the new railroad company, it becomes the duty of the old railroad company to unite with the new railroad company in forming the necessary “intersections and connections ” and to grant the requisite facilities therefor. If the two railroad companies cannot agree upon the “ manner of such intersections” and connections, the court may, under section 12 of the Railroad Law, properly appoint commissioners to determine their differences. The mere acquiring and appropriation hy one railroad company of certain lands to its own use, or even to a specific use, will not prevent another company from taking the same lands for the purpose of crossing or connecting with such other road; bat, on the other hand, the road seeking to effect the crossing or connection may not invade or take such lands if the use to which they have already been appropriated will thereby be rendered ineffectual. Whether a connection can be made, without a practical destruction of the specific use to which the land has already been appropriated, is for the commissioners appointed pursuant to section 12 of the act to determine in the first instance subject to the approval of the court. Appeal by the defendants, the Delaware, Lackawanna and Western Railroad Company and another, from an order of the Supreme Court, made at the Madison Special Term and entered in the office of the clerk of the. county of Otsego on the 10th day of November, 1904, overruling the objections of the defendants confirming the report of commissioners appointed under section 12 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 6Y6) to determine the point and manner of a track connection between the railroad of the defendants and that of the Oneonta, Cooperstown and Richfield Springs Railway Company in the village of Richfield Springs. Lewis E. Carr, for the appellants. Arthur M. Sanders, for the respondents. [MAJORITY — Parker, P. J.:] Parker, P. J.: By subdivision 5 of section 4 of the Railroad Law any railroad company is given the right to “ cross, intersect, join or unite its railroad ” with any other railroad before constructed, at any point on its route, and upon the ground of such other railroad company, with the necessary turnouts, sidings, switches and other conveniences in furtherance of the objects of its connections. Here seems to be a plain authority to the company represented by the respondents to join or unite its road with the appellants’ road. Such right to connect does not seem to be limited to those roads whose lines as laid out shall cross the other road, but it applies to all roads. If the two lines come so near together that it becomes desirable, for any reason, that one shall join or make connections with the other, authority is here given to do so. But in this section no provision is made in case parties cannot agree upon the method of making and using such connections, and section 12 supplements it by providing for the apjDointment of commissioners to determine all differences that may arise . between the parties. Such section also further requires that every railroad corporation whose road shall be so “ intersected” by any new railroad shall unite with the corporation owning such new railroad in forming the necessary intersections and connections and grant the requisite facilities therefor. Evidently the two sections are intended to be read together, and when thus read the provision in section 12 that whenever a road is. “ intersected by any new railroad ” the company owning the same shall unite, etc., clearly does not mean that the intersection must amount to a crossing by the new road. The old road would be intersected whenever a turnout or switch was built or became necessary to connect the two roads together. And, in the event of such a junction being determined upon by the respondents, it became the duty of the appellants to unite with them in forming the necessary “intersections and connectionsand to grant the requisite facilities therefor. I am of the opinion that, inasmuch as the two parties hereto could not agree upon the “ manner of such intersections ” and connections, a commission was properly appointed for that purpose. (See New York, L. & W. R. Co. v. Erie R. R. Co., 31 App. Div. 378.) It is further claimed by the appellants that the commissioners ' were without authority to make the connection which they did make, for the reason that the place, at and upon which they have located the switch or turnout, had already been, prior to this application, devoted and applied by these appellants to a specific use in the discharge of its public duties as a railroad company, and, therefore, it could not be subjected by another company to an additional and different burden. It seems to be settled in this State that the mere acquiring and appropriation by one railroad company of certain lands to its own use, or even to a specific use, will not prevent another company from taking the same lands for the purpose of crossing or connecting with such other road; but, on the other hand, the road seeking to effect the crossing or connection, notwithstanding the broad language of the statute and sections above cited, may not invade or take such lands if the use to which they have already been appropriated will thereby be rendered ineffectual. Thus a crossing, or a switch for a connection, may not be run through any building; manifestly there could not be any concurrent use of lands so appropriated. (Matter of Boston, Hoosac Tunnel & Western Ry. Co., 79 N. Y. 64.) Nor could a crossing be run through lands already appropriated as a “ yard ” for the storing of cars on side tracks. The use of the same . land for a crossing would be manifestly inconsistent with its use as ground for a storage track. (People ex rel. City of Buffalo v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 570.) But it might be that the running of a switch into the yard of another company by one desiring to connect therewith would be such a concurrent use of the same ground as would not destroy the use to which it had first been put, nor so seriously obstruct that use as to practically nullify the first taking. It is manifest that no crossing or connection can be made between two roads without the one invading the premises of, and to some extent inconveniencing, the other. But, as appears from the sections above cited, for such an invasion and inconvenience compensation may be made in damages, and commissioners are appointed to assess the same and to determine the manner in which the least inconvenience will be caused to the company whose rights are thus invaded. The sections are not broad enough to authorize even the commissioners to permit an invasion of lands already condemned that will amount to a practical -destruction of the specific use to which they have been appropriated or for which they are manifestly needed. But when the crossing or connection proposed is not so inconsistent, and where proof is made to the commissioners that the use to which the land is already appropriated would not be materially impaired by subjecting it to the use which the crossing or the connection would necessarily require, then the commissioners may authorize the connection and locate and arrange its place and manner of construction and award such damages as the inconvenience caused thereby requires. Whether such a connection can be made is for the commissioners to determine, in the first instance subject of course to the approval of the court. (Hornellsville R. Co. v. N. Y., L. E. & W. R. Co., 83 Hun, 407, 411; Matter of Boston, Hoosac Tunnel & Western Ry. Co., 79 N. Y. 64, 68, 69.) In the case at bar the commissioners have evidently concluded that the use to which the lands invaded by the respondents had already been applied by the appellants did not require their exclusive occupation and that they were such as might fairly be appropriated undef the statute to this new and additional use; and I do not discover in the evidence before us any convincing facts that would warrant us in disregarding that conclusion. The Special Term has confirmed their report. The respondents are entitled to a connection, somewhere, with the appellants’ road; no other or better gn@ is disclosed by the evidence, nor by any suggestion of the appellants. It is not so clearly apparent that the proposed connection will so substantially obstruct its present use as to forbid its being taken at all, and I, therefore, conclude that this order should be affirmed, with costs. All concurred; Houghton, J., not sitting. Order affirmed, with ten dollars costs and disbursements.