New-York tribune., 1910-01-04
ASK FOR MANDAMUS
Continued from hrst page.

the act was passed.
CORPORATION COUNSEL'S OPINION.
|, The Corporation Counsers office held
that the law seemed to be very plein as
to the intention TO authorize the eieVa-
tion or depression of the entire right OF
way. Although at present the railway
company was operating its line on only
one and two sets of tracks, il was en-
titled to retain its right of way at such
a width as might allow it in the future,
if it deemed il advisable to do So TO ex-
tend its transportation facilities further
by the construction and use of additional
tracks.
This opinion, OF course. carried with II
the right OF the company TO acquire ad-
ditional property where its. existing right
Of way was only thirty-fiFe feet in width
in order TO accommodate the sloping
earth entertainments at places where the
full width of the existing right Of way
was elevated and converted into a road
bed available for additional uaekage- It
was also held that the commission had
power TO construct four-trsck bridges
over intersecting streets and avenues or
to carry ffe proposed tracks over exist
ing streets and avenues, though at the
time the work was undertaken the rail-
way operated only two tracks.
With regard 10 the proposal contained
IL the railway companys filed plans for
the Bay Ridge end of the branch line
of that name, that existing and adequate
bridges carrying streets and avenues
over the one-track line of the railway
should be removed and new bridges con-
structed that would carry the streets
and avenues over the proposed widened
roadhed, the Corporation Counsel's office
held that inasmucIl as the proposed inn
provement was not necessary to remove
grade crossings, the city should not be
compelled to pay any part of the cost
OF the improvement. The opinion states:
The object Of the act and the work au-
tnorlzed under ii are for the purpose Of
abollsning grade crossings and TO provide
teT necessary changes in the grades of the
highways and railway lines The only
S SSaapges IA the grades authorized. there
necessary 10 accomplish the object in
Ions Bay e6d ssaf Sf Fseefasa Gse brsneS +
way company for the purpose merely of
imrroving the running Facilities OF its
rord eon5e w. g.p of The opinion tat It does not
grade in other portions Of the road ii be-
srads such change might be made s in order
| te meet the new conditions.
The commission also pointed out that
the railway company owned tract of
land adjoining its right of way at the
! Bay Ridge end Of the branch line of that
name.
| This tract ie for tbs, mast part above the
tne present o.. proposed grade OF the rail-
way Fhe railroad has on a small portion
e enaa ans 10 se5 ehveP ePe 1f & &sdrg and in
freight yard for the distribution and stor-
,;,, age Of cars es,, The plans submitted by the
entire yard to the level TO which the same
! Pans propose to depress the existing
tracks and right of way of the main line
Shch plans require the excavation of a
very large amount Of earth and the con-
sTseifloa sii nf,sH; Of Eiadnsts at interseeting
tersecting streets across the nroposed SHyn se
Yards. Ia view Of this situation com
thoFlzss or REQUIRES the commission to ex-
cavata any part of these yards either 10
the present depth of the tracks of the
railway or C, the depth proposed by the
FREIGHT YARD EXCLUDED.
The Corporation Counsers Office, In re-
| ply TO these Questions, said that under
| the terms of the statute only the exist
ing right of way and the tracks of the
| railway are to be elevated or depressed.
This proposed freight yard is in no
sense 2 part of the right of way con-
! templated by the act, and the tracks au-
thorized to be depressed or elevated are
only those occupying the right of way"
Armed with this opinion of the Cor
| poration Counsel regarding the proposed
changs in grade Of the railway at the
Bay Ridge end, where there were no
grade crossings to be abolished and
with respect 10 the excavation eft a.
freight yard that had nothing 10 do with
the existing right of way, the commits
sion refused TO assent TO the city being
| CALLED upon to pay any part Of the bet
terment scheme called for in the COM
! paay's filed plans. But three months
later the Corporation Counsels Office in
! another opinion described q conference
that had been held between the repre-
sentatiyes OF the city and those of the
Long Island Railroad Company regard :
ing the share the city should pay of the
cost OF making the improvements out
lined in the plans filed with the commits
sion by the railway company. The sec
ond legal opinion continues:
1t was agreed by all present at this con-
! ference that the important improyenerr
Work should not be frustrated through auY
I dispute as 10 the details IL it could possibly
be avoided, and that q disposition was
manifested 10 reach an agreement by NUT
conference be had between Edward NJ.
| shepard, the counsel for the railway COM
pany, and representative of this office
! 50 that some way might be devised TO
meet the oo1eetson5 raised on either side.
At the conference thus suggested Mfr
Shepard, while not waving any of the
claims OF the railway company. never
the position stated BIZ me IN an onInion
10 the erect that the purpose of the act
was for the abolition OF grade CROSSINGS
and that II the changes Proposed by the
way at the Bay Ridge end of the branch
Of that name was merely for tho purpose
OF improving its running facilities such
work did not come within the puFYiew of
the provisions OF the act.
As 10 the difficulties between the railway
company and the commission, everything
for the purposes Of adjustment has been
conceded by the railway company except
d question as 10 the proper grade TO he
established in this particular and restrict. ed
I locality. Here the railway company insists
that lower grade be established than
! sary fer the purposes " carrying out the
I intentions Of the statute. This locality in
! cludee d yard OF the railway company
! where, Ii claims, II will be necessary 10