34 N.Y.S. 595 | N.Y. Sup. Ct. | 1895
The plaintiff is a taxpayer in the city of Auburn, Cayuga county, and brings an action under section 1925 of the Code of Civil Procedure, and also under chapter 301 of the Laws of 1892, to prevent waste and injury to the property of the county, and to enjoin against a threatened illegal act, and his complaint alleges that the board of supervisors of the county, assuming to represent the county, were threatening to give the consent of the county to the construction and operation of a street surface railway upon Genesee street, in the city of Auburn, in front of the real estate of the county, which did not extend into the street, upon which were located the courthouse, clerk’s office, and the jail of the county, abutting on said street, said railway to be constructed substan tially, and the cars used thereon to be drawn or propelled by electric power, and that such consent was to be in a writing duly acknowledged and proved, as required by law, to Henry S. Dunning, H. B. S. Lord, and George F. Willis, as individuals, and without consideration, with power in them or their survivors to assign said consent to an existing or proposed corporation as soon as the same was duly chartered and organized.
An injunction was obtained pendente lite, from a justice of this court, restraining the board from giving such consent, or any corn-sent, to the construction and operation of a street surface railway
The appellant makes two points: First, that the board of supervisors had not the power to grant the consent of the county; secondly, if such power existed, it could only grant consent to some corporation that had authority from the sovereign power to construct and operate the railway at the place in question.
It may be regarded as the settled law of this state that the use of a highway for a steam or surface railroad, by- a duly-incorporated company, is not an infringement of the rights of an abutting owner of lands (one whose premises go to the boundary of the highway only), and such owner is not entitled to damages, and has no legal redress, in the absence of negligence in the construction of the railroad, and where there was a reasonable use of the street for the road, and is not exclusive in its nature, but leaves the passage across and-through the street free for the public use. Fobes v. Railroad Co., 121 N. Y. 505, 24 N. E. 919, and cases cited; Kane v. Railroad Co., 125 N. Y. 164, 26 N. E. 278, and cases cited. In Hussner v. Railroad Co., 114 N. Y. 433, 21 N. E. 1002, Judge Bradley says that the abutting owner had the right to insist that the switching of steam motors, discharging smoke and cinders in front of the premises, and making such noises as to shake the buildings, was a nuisance for which he could have damages, but the judge concedes the principle of the right of the railroad company to use the highway in the manner indicated by the foregoing cases; but the abutting owner has the right to insist that the street shall be open, so that from it access may be had to his lot, and light and air furnished across the open space, and this right is an incorporeal here
The injunction should be modified in this respect: that the supervisors shall only be permitted to give the consent to construct and operate a surface railway upon the street in question to some corporation duly authorized by law to construct and operate the same; but are restrained and prevented from executing the consent set forth in the complaint in this action; and the injunction, thus modified, to stand. Costs of this appeal should not be allowed to either party. All concur, except DWIGHT, P. J., not voting.