For modification -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis and Proctor. Opposed -- None. The opinion of the court was delivered by Francis, J.
Until recently the Erie Railroad Company transported passenger traffic on both its main and branch lines into its terminal in Jersey City, New Jersey. From that point, carriage to the downtown area of New York City was accomplished by means of the Erie ferry which plied across the Hudson River between the terminal and Chambers Street, New York City.
Passengers of the New York, Susquehanna and Western Railroad Company (an intrastate operation. See Susquehanna brief in A-202-57) were carried to the Erie Jersey City Terminal where they also took advantage of the Erie ferry service to Chambers Street. The final stages of the Susquehanna run were over a portion of the Erie tracks under a trackage agreement between the two railroads. The same situation applied to the New Jersey and New York Railroad Company (hereafter called Jersey), which was being operated by a trustee. Erie R. Co. Ferry Abandonment, 295 I.C.C. 549 (1957).
Erie and Jersey acquired rights over the tracks of the Delaware, Lackawanna and Western Railroad, including joint use of the Lackawanna's Hoboken terminal and station, and its ferry service across the Hudson. Thereupon, Jersey's use of the Erie Jersey City Terminal and the ferry facilities from that point ceased, and its passengers were brought into Hoboken. Erie also carried its main line and Greenwood Lake branch passengers to that terminal. Two of Erie's ferries were sold to Lackawanna as part of the transaction. The Erie Northern Branch and the Susquehanna passengers continued to proceed to the Jersey City terminal and to use the ferry service, which was then curtailed because of the reduced need.
On December 26, 1956 the Northern Valley Commuters Organization instituted this action before the Board of Public Utility Commissioners seeking an order directing the Erie to re-route its Northern Branch passenger trains so that they too would originate and terminate carriage at the Hoboken Terminal of the Lackawanna, rather than at the Erie Jersey City Terminal. Some time later the Susquehanna Transit Commuters Association applied for the same type of order to require the Susquehanna to re-route certain of its trains to bring about the Hoboken origin and termination. The proceedings were consolidated and the three railroads -- Erie, Susquehanna and Lackawanna -- participated in the hearings as parties.
During the pendency of the consolidated actions Erie pressed an application before the Interstate Commerce Commission for approval of the complete abandonment of its Jersey City ferry service. Subsequently the authorization was given, whereupon the validity of the order was made the subject of attack in the courts. The United States District Court for the District of New Jersey affirmed the Commission action, State of New Jersey v. United States, 168 F. Supp. 342 (D.C.N.J. 1958), and the service was discontinued. The order of abandonment in a companion case involving the New York Central Railroad was affirmed by the United States Supreme Court on March 2, 1959. 359 U.S. 922, 79 S. Ct. 603, 3 L. Ed. 2 d 625 (1959).
At the hearings before the New Jersey Board the railroads contended that jurisdiction over the problem was vested exclusively in the Interstate Commerce Commission. And originally, on the merits, they claimed that the remedy sought by the commuters' associations was opposed to the public interest and convenience. At the final hearing, however, on January 15, 1958, Erie announced that it and Lackawanna had made a recent joint study of current train operations into and out of the Hoboken Terminal. As a result, Erie submitted a counter-proposal to those suggested by its commuters. The plan offered contemplated a transfer
of its Northern Branch trains into Hoboken by operation over Lackawanna tracks on which Erie holds trackage rights approved by the Interstate Commerce Commission. More specifically, the route comprehended the movement of the Northern Branch trains to an existing point of connection with the Erie Main Line (the latter phase of this movement being over the portion of the Erie tracks in use jointly by the Northern Branch and the Susquehanna). At that point, a back-up operation would take place in a generally northerly direction over the Erie Main Line to an existing connection with the tracks of the Boonton Branch of the Lackawanna, and from there southerly along the Boonton Branch tracks to their connection with the Lackawanna Main Line, and thence eastward to the Hoboken Terminal. Only approximately eight minutes would be added to the Northern Branch running time.
When the counter-proposal was made with respect to the feasibility of accommodation by Lackawanna of the Northern Branch trains, nothing was said as to whether the "recent" study included provision for the re-routing of Susquehanna trains into Hoboken. In this connection it seems reasonably plain from the Interstate Commerce Commission opinion in Erie R. Co. Ferry Abandonment, supra (which Susquehanna presented to us in its reply appendix), that the study was made at least as far back as early 1956, and that it did take into account the Susquehanna trains. The pertinent portion says:
"Under the coordination plan as partially implemented, the trains of Susquehanna and the Northern branch continue to be operated into and out of the Jersey City station. Sufficient tracks, platforms, public convenience facilities, and incidental services are provided at the Erie's terminal to accommodate all passengers of the trains that presently, and in the future will continue to, utilize that terminal. To do otherwise would require an arrangement whereby the Susquehanna and the Northern branch trains to Hoboken would be routed over the Erie trackage presently used by those trains to a point east of Croxton, backing onto the Erie's main line about 1.2 miles in opposition to the predominant flow of traffic, to the new connection with the Lackawanna's Boonton branch near the Erie's milepost
3.17, thence proceeding to the Hoboken terminal. A corresponding backup against the flow of traffic would be involved in the reverse direction. That route would avoid the continuance of operations into the Erie terminal and would take advantage of the most favorable conditions as to grade crossings, switches, and connections, and involve passenger trackage only.
On the basis of test runs over existing trackage best suited to simulate the backup required to reach the Lackawanna tracks and terminal, the Erie's engineers estimate that the required shuffling of the Susquehanna and the Northern branch trains would require the addition of 10 minutes to the present eastbound schedules and 8 minutes' extra time westbound. The estimate reflects the additional time needed to complete the run plus an allowance of about 2 minutes to avoid undue interference with the operation of the other Erie trains and those of the Jersey and the Lackawanna, the proposed schedules of which also might require adjusting if the backup move is instituted." (Emphasis added)
The back-up operation so described appears to be substantially the same movement Erie reported in the present case as feasible for its Northern Branch trains. And the factual statements drawn from the Interstate Commerce Commission opinion support a clear inference that the same back-up movement was an equally practicable means of bringing the Susquehanna trains into Hoboken. But the testimony referred to in the Ferry Abandonment case was not produced here, although in the course of the hearings when an objection was made as to the competency of one of the commuters' associations' witnesses the examiner said:
"* * * I am hopeful that the railroad people, Mr. Hoffmann and Mr. Leighton and Mr. Nasmith, that you will have some qualified operating people in here at some time during the course of this case to testify on the technical aspects of the operation."
The invitation went unheeded, and in the ultimate submission of the counter-proposal to take care of the Northern Branch passengers no references to the Susquehanna people were made. Significantly, however, no proof was offered to demonstrate that the Susquehanna trains could not be accommodated in the same way or that any such plan was opposed to the public interest and convenience. In any event, without awaiting the decision of the Board, on July 14,
1958 Susquehanna filed an application (which is still pending) with the Interstate Commerce Commission for a certificate authorizing it to abandon both passenger and freight operations over the portion of Erie tracks for the use of which it held a trackage agreement. The effect of such abandonment would be to terminate the run at Susquehanna Transfer, a way station five miles from Jersey City. From that point the passengers would have to travel by bus to the Port Authority Bus Terminal in midtown Manhattan. And then those persons with a downtown New York destination would proceed by subway to that area.
Moreover, it seems obvious that in the Ferry Abandonment case, the parties presented the facts as to the adequacy and convenience of the Lackawanna terminal facilities and ferries to handle all Erie and Susquehanna trains and passengers if the back-up movement were adopted. The Commission found:
"Physically, the facilities of the Lackawanna's railroad and ferry terminal and stations are larger, more complete and convenient, more modern, and in better repair than the Erie's. The record shows that they have ample capacity to handle additional trains, ferryboats, and passengers.
On reviewing the record and considering the recent experience in handling the combined passenger load of the Lackawanna, the Erie, and the Jersey trains, we find that the Hoboken terminal facilities, the ferry terminal at Barclay Street, and the ferryboats which are operated by the Lackawanna are adequate ...