#### In re LONG LAKE R. CO.

(Supreme Court, Appellate Division, Third Department.

December 2, 1896.)

1. Railroads—Commissioners—Application for Certificate.

It is error for the board of railroad commissioners to refuse to grant a certificate under Laws 1892, p. 2083 (Railroad Law) § 59, where the evidence showed that the community which would be affected by the road was desirous that it should be built, and that almost the entire right of way had been donated; that, while the road would be built through the Adirondack Forests, yet the forest commission had no objection to it; that there was no other road which could furnish the same advantage to the community as the one proposed; that there are large lumber interests, sawmills, hotels, and summer resorts to furnish business for the road; and that great water power, and a mine of iron, are near the proposed line; and that the principal objector is another railroad company. Herrick and Merwin, JJ., dissenting.

2. Same—When Refusal of Certificate Error.

The fact that the board of railroad commissioners granted a certificate of public convenience and necessity, under Laws 1892, p. 2083 (Railroad Law) § 59, to a company, to build a road in certain localities, and that the company had not commenced construction, is not a proper ground for the commissioners to refuse a certificate to another company to build a road on adjoining territory, though the incorporators of the two companies are the same persons. Herrick and Merwin, JJ., dissenting.

8. Same—Enhancing Property.

It is not a valid ground of refusal by the board of railroad commissioners to grant a certificate, under Laws 1892, p. 2083 (Railroad Law) § 59, that, by building the proposed road, the value of the land in its locality would be enhanced, and the land, therefore, would be more expensive for the state to purchase as additions to the State Park.

Application by the Long Lake Railroad Company to review the determination of the board of railroad commissioners in declining to grant a certificate of public convenience and necessity, under laws 1892, p. 2083 (Railroad Law) § 59.

Reversed.

Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

John L. Henning, for Long Lake R. Co.

Hamilton Harris, for New York Cent. R. Co.

John P. Badger, for Dodge, Meigs & Co.

J. W. Houghton, for George T. Underwood and Selia E. Marsh.

D. G. Griffin, for Sherman and others.

PARKER, P. J.

The Long Lake Railroad Company filed its certificate of organization on April 17, 1895; and it proposes to build a railroad from Axton, in Franklin county, southerly, along the Raquette river, a distance of about 10 miles, to Long Lake. It applied, *126under the provisions of section 59 of the railroad law (Laws 1892, p. 2083), to the board of railroad commissioners, for the certificate required by that section. The board refused to give the certificate, and, upon the maps and proceedings certified to this court, the company, under the provisions of such section, now asks from us an order directing that such certificate be issued. On the hearing before the commissioners, the application was opposed by the New York Central & Hudson River Railroad Company, also by certain individuals organized for the purpose of protecting the state forest preserve; and such parties have also appeared by attorney, and opposed the application now made to this court.

For the purposes of this case, I will concede that the burden is upon the applicant to show us affirmatively that the railroad commissioners have erred in their refusal to grant the necessary certificate; and, further, I will concede that due weight should be given by us to that greater technical knowledge which they, rather than this court, are presumed to possess; and yet I cannot but think that in this case the board should have given the certificate desired. Aside from the question whether the proposed road crossed lands owned by the state, there was but a single question presented to the board for its consideration. That was whether “public convenience and necessity required the construction of the road, as proposed in .the articles of association.” As bearing upon that question, some facts appear in the case that are too plain for discussion. First, the entire community to be affected by the road are desirous that it be built. All seem to be of one accord that it would be a benefit to them, for no voice from that locality is raised against it. As bearing upon some objections that have been made to its construction, it is a significant fact that the forest commission, who have in charge the interests of the state in this domain, although notified of the hearing before the railroad commissioners, have no word to say. against it. The principal objector is a railroad company that is at this very time operating a railroad through the very heart of the Adirondack Forests. Next, it is apparent that there is no other road that can furnish the same advantages, or approximately the same advantages, to the community, that this road would furnish. It competes with no other road, for there is none nearer to it than a distance of 25 miles through a wilderness, without highways, and through which there are no means of passing, except by the natural streams and over difficult “carries.” Into such a wilderness the road extends, and so desirous are the owners of the land over which it will pass for its construction that they stand ready to assist the company by donating to it the right of way. It further appears that from Áxton, the northern terminus of the road, the Racquette River Railroad Company is about to construct a road to Tapper Lake, a distance of anout 10 miles, in a northwesterly direction, where it will connect with both the Adirondack & St. Lawrence Railroad and the Northern Adirondack Railroad. A company has been organized to build that road, and a certificate of its necessity has been granted to it, by the board of railroad commissioners. Although it.is intimated in the decision of the board that such road is not to be built, there is not a particle *127of evidence to that effect. For aught that appears, it is already in process of construction, and we should assume upon this hearing that it will be built as proposed in its articles of association. Thus, Aston, although but a hamlet, is a place of importance, inasmuch as it is the point where communication to points outside of the Adirondack wilderness begins. From this point the road in question extends to the northeastern end of Long Lake, from whence steamboat communication on that lake extends to the village of that name, and also the whole length of the lake, a distance of about 12 miles. It is objected that the country through which this road passes is so sparsely settled, and furnishes so little business, that such a road is not necessary. The evidence discloses that there are large lumber interests in that neighborhood; that on Long Lake there are several hotels, much frequented in summer; that at Blue Mountain Lake, about 12 miles further south, there are other hotels, and, in fact, that all the country in that vicinity is a favorite summer resort; that now all the supplies for those engaged in lumbering, and for the hundreds, if not thousands, of summer boarders and visitors at that locality, are taken in, some 40 miles, by wagon haul from North Creek, a place in the southeastern corner of the Adirondack domain, at an expense of 75 cents per 100 pounds. If this road is constructed, such freights will come in from the north to Long Lake, all the way by rail, and can be distributed to Blue Mountain Lake, Baquette Lake, Indian Lake, and divers other points of summer resort in that locality, at a much shorter haul and much less expense. So, also, the hundreds of tourists that in the summer visit that locality will be equally and in the same manner accommodated. Those who locate on Long Lake can go all the way by rail or steamboat. Those who locate on the lakes adjoining will have so much less transfer through the woods to endure. There is an immense water power close to the line of this road, and large tracts of lumber extend on either side of it, and of Long Lake. Clearly, the opening of such a locality to a market, by rail, is not only of immense advantage to such industries, but also the profits derived from that business are likely to prove a profitable source of income to the railroad company. Without going more into detail, it seems very clear to me that the interests of the public in that locality will be very greatly promoted by the construction of that road. If the convenience and necessities of the public in that locality require the road, it plainly answers the requirements of the statute, unless some other public interests are prejudiced by it.

One of the objections urged against the road is that it proposes to cross lands belonging to the state. If this were so, I should consider it an insuperable objection. But, upon the evidence, it cannot be determined that such is the fact. The proof is by no means sufficient to enable us to adjudicate that the title to any part of the land over which the road passes is in the state, and, even if a doubt is raised upon that question, it would be unjust to deny this company the right to exercise their corporate franchises, because of that doubt. Granting them the certificate they ask will not affect the title of the state, if it has any, nor prejudice its right to stop *128the construction of the road upon any land that belongs to it; and it is apparent from their decision that the railroad commissioners have not found such to be the fact, nor based their refusal on any such ground.

A further objection urged is that, by the building of the road, the lands in that locality will be greatly enhanced in value, and that it will therefore be more difficult and expensive for the state to purchase the same, and add them to the “State Park,” provided for by section 120 of chapter 332 of the Laws of 1893. I have no doubt that public interests require the preservation of the forests in the Adirondack domain, and the benefit of the scheme on the part of the state to purchase and preserve them can hardly be overestimated. But I am not willing to adopt the theory that, in order to do so at the cheapest possible figure, the officers of the state are called upon, either- by direct or indirect action, to use their official powers to depreciate the market value of such lands. Undoubtedly, it is to be regretted that the state did not long ago purchase these lands; but inasmuch as it has not, and others have done so, it is not unreasonable that they should now desire to utilize their property for all that it is worth. They are asking no other or greater privileges for the benefit of their property than the state has freely granted to all other localities; and for the state to refuse them, simply because it wishes itself to acquire their property, is but a method of confiscating the property of a few for the benefit of the whole, and is utterly at variance with the theory of our constitution, as well as with the first principles of justice. In my judgment, the -idea that the state can purchase these lands cheaper if this railroad is not built is an element that should have no control in the decision of the question now before us. But the concession that it would enhance the value of such lands is strong evidence of its public convenience and necessity.

It is further objected that it is against the policy of the state to allow railroads to be built into the Adirondack Forests. It is the policy of the state to procure title to all the lands it can in that region; to preserve the forests thereon; and to prevent other parties from running roads through lands so acquired. Beyond that, I do not discover any legislation indicating an intent to exclude that locality from the benefits of railroad communication with the rest of the state. 2Tpr can I discover that the proper preservation of the forests in that domain requires the total exclusion of an additional line of railroad through it. There has recently been constructed one line which enters at its southwestern edge, and extends through to the northeastern corner; also, a line extends from the northwest down to the center of that region at or near Tapper Lake. Such roads have proved to be a great convenience, not only to those living in the localities where they run, but to thousands of other citizens, who annually seek that region for the benefit to their health, or for the pleasure, which it affords. The line of a railroad is such an insignificant strip throxigh the immense area of forests that it practically detracts nothing from their beauty, and is hardly an invasion of their solitude. These lines, however, add bxxt little to the facility of *129access to the southeastern portion of the Adirondack region. The line proposed stretches down into that 'section, and instead of extending too far, if it could be extended 40 miles further, to North-creek, and there connect with the railroad extending down the Hudson river, it would, in my judgment, be a great public convenience to hundreds of citizens who make their summer resort throughout the forests in that region.

I have carefully read the decision of the board of railroad commissioners, and I am somewhat in doubt as to the real ground upon which they denied this application. Upon the only question before them, to wit, “whether the public necessity and convenience required the road,” they are quite indefinite. They say that the evidence upon that point is “far from strong,” “is very slender”; but they do not say that, in their judgment, “public necessity and convenience do not require the construction of the road.” The feature which really controlled their decision seems to have been that the articles of association for the Raquette River Railroad Company, above mentioned, were filed at the same time with those of this applicant, and that the directors of both companies are the same, but that this applicant did not apply for a certificate, under section 59, until one had been granted to the other company. They say that had they then known that it was the purpose to extend a railroad 20 miles, instead of 10 miles, into this region, they would not have granted the certificate to the Raquette River Company; and for this reason they deny the application of the second company. I gather from this that the real reason for denying this application is not that it is unnecessary to the locality through which it extends, but that it penetrates too far into the .forest, and is therefore not in harmony with “the general policy of the state as to the preservation of the Adirondack domain.” Concede that that is a question to be considered by them; yet, as I have stated above, I cannot discover that the construction of a road 20 miles into this region would at all conflict with the general policy of the state. On the contrary, I think it would be in entire harmony with its procedure in this respect. It has already allowed a railroad from the southwest to the northeast comer of that domain, and from the northwest down to Tapper Lake, greatly to the advantage, not only of the country itself, but also to that of very many citizens residing elsewhere; and it is but an invidious distinction to now deny equal facilities to those seeking to enter the southeastern portion of that domain. It is the destruction of the forest, and not facility of access to a few central points in that domain, that the policy of the state'is seeking to prevent.

It is further objected that the promoters of this road are not acting in good faith, because they have organized two companies to build the road from Tupper Lake to Long Lake. If they intend, by so doing, to charge extravagant rates, there are provisions of law which can control that; and that there are any other evils to be apprehended from the building of 20 miles of road by two companies I am unable to discover. At all events, that fact is not at all con*130trolling upon the question whether public convenience and necessity require the road.

None of the evils which the statute was designed to prevent are apparent in this case. There is no existing railroad company whose interests are to be unfairly affected by it, and no alluring, but profitless, investments are offered by it to the unwary citizen. It seems to be a plain case where the necessities and convenience of the public in that locality, as well as those of a large number of citizens who annually, in the summer time, seek access to that vicinity, require the construction of the road, and where no other public interests, proper to be considered in connection with that question, will be prejudiced thereby. In my judgment, the railroad commissioners erred in not granting the certificate asked for, and an order should be made by this court requiring them to do so.

LANDON and PUTNAM, JJ., concur.

HERRICK, J.

(dissenting). I regret that 1 am unable to concur in the opinion of Mr. Justice PARKER.

In determining appeals of this kind, we have heretofore held that:

> “We cannot consider the evidence as if we were determining the matter in the first instance. Some weight and importance must be attached to the decision of the commissioners, and the burden is.upon the relator to show to us that the decision of the commissioners was contrary to the clear weight of evidence.” People v. Board of Railroad Com’rs, 4 App. Div. 259, 38 N. Y. Supp. 528, 861.,

It has also been heretofore said:

> “The railroad commissioners are vested with the supervision of the railroads of the state. It is made their special and peculiar duty to investigate and inform themselves as to the condition of existing roads, and as to the needs of the various parts of the state for transportation facilities; and their opinion upon these matters, in regard to which a proper discharge of their official duty requires them to be specially informed, is entitled to respect and consideration. * * * Their determination as to whether they will grant a certificate of public convenience and necessity is necessarily and properly largely a matter of discretion, not an arbitrary discretion, but a discretion enlightened and guided by their experience in the affairs of railroads, the problem of transportation, the needs of the people, together with the special facts brought before them in each particular case.”

It has also been said:

> “That unless the court can see that the decision of the board of railroad commissioners was founded upon erroneous legal principles, or that it proceeded contrary to the clear weight of evidence in arriving at its conclusion upon any question of fact, or that it has abused the discretion vested in it, and has arbitrarily refused to issue the necessary certificate, I do not think that the court should reverse its determination, and compel it to issue a certificate.” In re Amsterdam, J. & G. R. Co., 86 Hun, 578, 33 N. Y. Supp. 1009.

In this case it does not seem to me that the decision of the railroad commissioner^ in refusing to issue the certificate applied for was founded upon erroneous legal principles, or that the decision was contrary to the clear weight of evidence, or that it has arbitrarily refused to issue the certificate. The good faith of parties applying for certificates is always a matter that is en*131titled to weight in considering the application, and in this instance the railroad commissioners had a perfect right, among other things, to take into consideration the fact that the incorporators of the proposed Long Lake Company were also the incorporators of the Baguette Biver Company; that the certificates of incorporation bear the same date; but that the certificate of the Long Lake Company was not filed until after the application was made and granted to the Baguette Biver Company, and its existence not disclosed to the commissioners until after such certificate was granted. These facts, the commissioners say, would have had some effect upon their action in the case of the Baguette Biver Company, had they been aware of them at that time. It is obvious that, by this method of proceeding, a railroad may be continued on indefinitely, section by section.

But aside from these considerations, and treating the application of the Long Lake Company as a separate and distinct company in all respects from the Baguette Biver Company, it does not appear to me that the refusal of the railroad commissioners to say that public necessity and convenience reguired the construction of this road was against the clear weight of evidence. It is a matter of common knowledge, and is indicated by the evidence before us, that the lands in that part of the state where it is contemplated to run this road are owned in large tracts by the state, by . lumber companies, speculators, and those desiring to establish private forest preserves. The country is sparsely settled, and practically the only industry is° lumbering; the other pursuits being hunting and fishing, and the keeping of hotels and boarding houses for the accommodation of sportsmen and tourists. Logging, or the transportation of logs from which lumber is to be made, is by floating them through the innumerable streams and small lakes distributed through this country, to the mills.

It is proposed to build this road from Axton to the outlet of Long Lake, a distance of about 10 miles. Axton, it appears from the evidence, is a lumber or logging camp, with a few huts or houses for the loggers and lumbermen. The name itself is significant. It does not appear whether it is inhabited all the year, or only during the logging season. At its proposed terminus, at the outlet of Long Lake, there is no settlement whatever. The country that it runs through is wild forest land, and is all- owned by a lumber company, and by two private individuals; and I may say, in passing, that the fact that such persons are willing to give to the company the land for its proposed route through their lands—lands which they have stripped of the larger portion of their value, by cutting therefrom all the merchantable timber— does not strongly impress me as a reason why the certificate should be granted, nor does it indicate to my mind that there is any great public necessity for it; the land proposed to be given being of apparently little or no intrinsic value. Long Lake village is some miles down the lake, and is reached by what is known as a “State Boad,” and another road is in process of construction *132by the town. The means of reaching the village seem to be ample, except that such roads are not railroads. There are a few summer residences upon the shores of Long Lake. It is proposed to reach Long Lake village from the terminus of the proposed railroad, at the outlet of the lake, by navigating the lake. At present the only navigation of the lake appears to be by row' boats, canoes, and a single steam launch or tug. At times it is not navigable, because of the logs in it; and it appears in the case that the launch or tug that navigates Long Lake could not run at the time when the petitioners were being heard before the commissioners, in August, 1895, and had not been run that season, the lake being unnavigable, by reason of the quantity of logs in it. Of course, this obstruction to navigation will disappear as the lumber in that region is exhausted; but so, also, will disappear one of the reasons given for the construction of this road, namely, the accommodation of the lumber trade. It is needless to say that for a great part of the year navigation is suspended by reason of the lake being frozen. The travel through this section, by which it is expected to support the road, is largely of tourists and lumbermen; and the freight business that is expected to be obtained is that derived from carrying supplies to the lumber camps, summer hotels, and for the transportation of lumber. Evidence was given before the commissioners of an iron mine, and also of a water power, from which it was argued business might be derived in the future, and that the road would assist in developing both. The water power, it appears, is located some miles distant from the road, and has never been developed, but, it is asserted, could be used in the manufacture of lumber or of wood pulp. The iron mine is also distant several miles from the road. It appears that it had been worked many years ago, but abandoned, because of the character of the ore.

The question as to -whether a proposed road will be self-supporting is one proper to be considered upon its application for a certificate. It is difficult for me to see how a road commencing at a lumber camp, and running through an unsettled' wilderness, to a point where there is not even a hamlet, the exit from and the access to which is closed up during a large portion of the year, which has no industries along its line, and but a sparse population, can be made self-sustaining. The lumber interests spoken of, and the business to be derived from the transportation of lumber and of lumbermen, and the carrying of freight to the lumber camps, are largely dwelt upon, as one of the means of sustaining the road. Granting all that can be said in that respect, the fact still remains that that can be, at best, but a temporary source of business. It is part of the industrial and commercial history of the state that what is known as the “Adirondack Region” has been largely stripped of merchantable timber, and what is left is rapidly disappearing, except that which is upon the forest preserve, owned by the state, and which cannot be parted with. Indeed, it appears in the evidence in this case, upon the part of the petition*133ers, that that particular portion of this region over which it is proposed to run this road has been lumbered over, and the soft timber taken off, and that there is now no lumber anywhere close by where the road is to be built, “except once in a while a hardwood tree.” The Adirondack wilderness has been the resort of tourists, and a Diace for the location of summer camps and residences, very largely because it is a wilderness; and it is difficult to see how this class of travel and temporary residences will be increased by the construction of railroads, which tend to destroy the qualities and characteristics of the place that make it attractive. For the summer hotel keepers, the small merchants, and the inhabitants of lumber camps, it is very likely that the building of this road would be convenient; but there is not sufficient evidence to show that there is any public necessity that requires it, or that there is sufficient business from the sources named to warrant us in believing that it would be a self-sustaining road. In addition, it may be said that for some years it has been the policy of the state to preserve the Adirondack wilderness, and to restore it as far as possible to its former condition, and anything that interferes with that policy should not be encouraged by any department of the government. The building of railroads, it seems to me. must materially interfere with that policy; and the fact that certificates have already been issued to some companies is no reason why the evil should be increased, by granting them to others.

Without further discussion, suffice it to say that it does not appear to me that the decision of the commissioners was against the clear weight of the evidence, and it should therefore be affirmed.

MERWIN, J., concurs.