16 A.D. 229 | N.Y. App. Div. | 1897
Lead Opinion
The action was brought to restrain the defendant from constructing and operating a piece of street railroad about 200 feet long from the tracks used- by the defendant in West street, opposite Christopher street ferry, to the entrance to such ferry, and to compel the defendant to remove the tracks so far as it has constructed them. The relief sought was afforded by the decision and judgment made and entered. The decision was duly excepted to, and this appeal is taken from the judgment entered thereon.
The grounds of the decision were in brief: (1) That the. plaintiff had a franchise to construct and operate a railroad to the ferry, and its tracks were lawfully on the space in question ; (2) that the defendant had no franchise to construct or operate a railroad over the space in question; and (3) that the plaintiff would sustain special injury and damage by the construction and operation of such railroad by defendant.
There can be no doubt, of the correctness of the conclusion by the trial court as to the first ground. The plaintiff’s rights are based upon its ownership of the franchise granted by chapter 160, Laws of 1873, and its interest as lessee of the franchise owned by the Christopher and Tenth Street Railroad Company granted by * chapter 301, Laws of 1873. At the time these franchises were
Indeed, the defendant does not seriously controvert this proposition, but claims that the same legal principles and considerations which determined plaintiff’s rights also establish defendant’s right to construct and operate its extension over the space in question. The franchise owned by the plaintiff gave the right to construct and operate its road “ through and along West street with double tracks to Christopher St., at the foot of Christopher street, North river. Returning — from the foot of Christopher street, North
The resolution by the dock department was, in express terms,, a. mere revocable license to construct this piece of road. It did not purport to grant any franchise. That department had no power to-do so.' It was merely a consent by that department, so far as consent might be necessary, but was wholly inadequate to confer any right or authority upon the defendant to construct or operate the-road, certainly as against the rights of the plaintiff. It could not-deprive the plaintiff of any rights it had in the street. We conclude,, therefore, that the trial court ivas correct in its second conclusion,, that the defendant had no franchise to construct or. operate its road over the space in question.
The remaining question is whether it appeared that the plaintiff suffered or would suffer such special damage from the construction and operation by the defendant of this piece of road as enabled it to-maintain this action to restrain such construction and operation. The unauthorized construction and operation .of a railroad in a public street is a public nuisance, but the creation or continuance of a. public nuisance is the infringement of a public right, and gives a. private person no right of action to abate such nuisance, unless its-creation or continuance invades his .private rights and causes him some special damage, as distinguished from the damage he suffers as one of the community at large. Ordinarily this question arises as. to a person who owns real property abutting on the street through which the railroad is - constructed and operated, but the question is-not materially different in a case like the present where the plaintiff is a railroad. company, and has property, not abutting on the street, but lying in the street itself. It is provided by section 102 of the Railroad Law (Laws of 1890, chap. 565, as amended by Laws of 1892, chap. 676), that “ no street surface railroad corporation shall construct, extend or operate its road or tracks in that portion of
The space in question was a street or highway. Plaintiff’s street railroad had been constructed and was being operated therein. Hence the defendant could not construct or operate its road therein, without plaintiff’s consent.
The plaintiff was thus placed in the same category practically as a property owner, having property abutting on the street, and could maintain an action to prevent the defendant doing an act which the statute had expressly provided it should not do, unless the plaintiff consented to the doing of it. In such a case, though it may be necessary to show that special injury and damage will be caused to the plaintiff, it is apparent that the nature or extent of such damages is not material. It need not be irreparable, and it was so held in The Forty-second Street, etc., R. R. Co. v. Thirty-fourth Street R. R. Co. (20 J. & S. [52 N. Y. Super.] 252), which was a case like the present, brought by one railroad company against another, and based upon the same section 102 of the Railroad Act. In that case the action was brought before the construction of the road had been commenced. Here the action was commenced, it is said, after the construction had been completed, but before the operation of the road had begun.
The damage to the plaintiff occasioned by the construction in the case cited, from the tearing up of the street and the putting down of the tracks, was apparent and was in the future, and was alone clearly ground for maintaining the action. It seems to us, however, that the operating of the road in the street in this case would be some damage to the plaintiff, some interruption of travel to and from the plaintiff’s cars, and that sufficient damage thus appears to enable plaintiff to maintain the action. But beyond this it was alleged in the complaint, and substantially admitted in the answer, and is apparent, that the defendant, through its system of transfers and connections, would in the operation of this piece of road come in direct competition with the plaintiff’s road over this space in question. And this would manifestly be a source of more or less damage to the plaintiff. It is true that the amount of such damage
It seems to us the trial court was correct in its third conclusion, that the plaintiff was in a position to maintain the action.
The decision of the trial court was- correct, and the judgment should be affirmed, with costs. -
Van Brunt, P. J., and Patterson, J., concurred; Ingraham, J., dissented.
Dissenting Opinion
The judgment appealed from enjoins the defendant “ from the construction and operation of a railroad track at or near'the foot of Christopher street, North river, in the city of New York, extend- ■ ing in a westerly direction from the tracks of the Hudson River Railroad in West street (as said street was at the time of the enactment of chapter oil of the Laws of 1860) toward the Christopher street ferry house across said West street, and over any part of the space between West street and the said ferry house,” and said judgment further requires the defendant to take up the track and railroad already constructed by it running West of the tracks of the Hudson River Railroad Company in West street.
There are several interesting questions presented upon this appeal which have received much consideration, and which are not free from serious doubt. They arise because of the extremely indefinite language used in granting charters to the various railroad companies whose rights have been acquired either by the plaintiff or the defendant in this action, in connection with the provisions of the General Railroad Act. In construing. these various • charters we must 'consider them in -relation to the actual condition of the streets, docks and ferries at the time the acts were passed, and then determine what was the intention of the Legislature as to the rights that were to be conferred upon the railroad companies, and the. objects to be accomplished by providing for the railroad authorized. The defendant succeeds to the rights granted
Now, let us look at the position of West street in the neighborhood of Christopher street at the time of the passage of the act. West street was a street seventy feet in width, the westerly side being the bulkhead line of the city of New York upon the North river. Against this bulkhead line,, opposite the end of Christopher street, a ferry known as the Christopher street ferry, landed its passengers on West street. The entrance to this ferry on the westerly side of West street was about twenty feet from the westerly track used by the defendant’s road. Passengers from this ferry, ■wishing to take the cars of the defendant’s road, were thus within about twenty feet of the cars when they .left the ferry house ; and from the width of the street and the location of the ferry it was not at that time deemed necessary for the accommodation of the defend
that the proper working and accommodation of the ■ defendant’s railroad require different sidings, turnouts and switches than were required at the time of the passage of the act incorporating the ■defendant’s road. What would be proper and convenient at this point, both for the economical and proper working of the road, and for the accommodation of the public. ■—those wishing to use the ■defendant’s road to convey them from or to this ferry — would be ■quite different, after the construction of this new bulkhead line and the removal of the ferry to its present distance from the defendant’s tracks, from what it was before such change. The railroad authorized by this act was not a mere private and commercial corporation solely for private gain, but was a public use. The authority given to it was for use by the' public, and these rights given to it were for the purpose of accommodating the public as well as' for the purpose of allowing the corporation to realize a profit from its operation. The: public character of the operation of the road authorized by this charter, and the obligation which was imposed upon the grantees of the franchise, should not be lost sight of in determining just what the Legislature intended in granting the power and authority that was granted. Christopher'street then ended, and now ends, at the easterly side of West street.
By chapter 301 of the Laws" of 1873, the Legislature granted to the Christopher and Tenth Street Ferry Railroad Company the right to build a railroad along Christopher street, which railroad commenced at Christopher street ferry and ran thence through and along Christopher street and other streets to West Tenth street and West street; and thence through and along West street, with a single
Various objections have been taken as to the right of the plaintiff to maintain this action and to the relief granted by the judgment. Without expressing an opinion upon these questions, which are not at all free from doubt, I think the case can be decided solely upon the authority of the defendant to construct this piece of road and to. operate it when constructed; and, as I take decidedly a different view from that taken by Mr. Justice Williams as to this right of the defendant, it is not necessary that I should express an opinion upon the other question presented in the case. It is conceded that since 1871 the plaintiff and its.lessors have operated and used this piece of road, connecting its tracks with the ferry house, and that under its charter it had the right, when the ferry house was removed from its position on the westerly side of West street to this point, about 180 feet west of the westerly side of West street, to extend its tracks so as to connect with this ferry. The defendant desires to
It will be noticed that neither of the charters under which the plaintiff is operating granted any express right to construct a road west of West street. It did authorize the construction of a road to the Christopher street ferry, and through and along Christopher street, but Christopher street then and now ended, at the east side of West street, and the right of the plaintiff to construct its road depended upon its right to extend to the Christopher' street ferry and the right to go upon and over West street. At the time.these acts were passed, Christopher street ferry was at the west side of West street; and when it was subsequently removed, upon the completion of the new bulkhead line, and when the plaintiff built its new tracks to the ferry house, it justified its right to construct this additional piece of track by reason of the removal of the ferry house and. the necessity of extending its track so that its road should extend to the new ferry house.
In an action brought by the People, and also in an action between the two railroad companies, both of which are now controlled by the plaintiff, it was determined that the plaintiff, the Central Crosstown Railroad Company, had the right to build its road, to the new ferry house. The plaintiff has introduced in evidence that judgment, with
In the case between the Christopher and Tenth Street Railroad Company and the Central and Crosstown Railroad Company, the court found that Christopher street ended at the easterly side of West street, and that the space between such easterly side of West street and the North river did not form or constitute any part of Christopher street; that the Christopher street ferry house is located about 250 feet westerly from the easterly side of West street, and that the space between such easterly side of West street and the ferry house now forms a part of the permanent bulkhead or water front; that the defendant (the plaintiff in this action) is entitled, and has a right, to continue its line or track so laid on the northerly side of Christopher street, and upon and across West street, and the space between the old and new bulkhead lines at the foot- of Christopher street, to its terminus at the ferry house; and as a conclusion of law that the plaintiff was not entitled to any injunction against the defendant (the plaintiff in this action); and that such defendant may lay, construct and operate two lines of tracks and turntables, according to the findings and conclusions of law. By the. judgment- it was adjudged that the defendant “ may continue its line or tracks, laid upon the northerly side of Christopher street, upon and across West street and the space between the old and new bulkhead lines at- the foot of Christopher street, to its terminus at the ferry house.” This . bulkhead line was extended 180 feet west of the westerly side of West street by the dock department, under the authority conferred by chapter 574 of the Laws of 1871, as amended by chapter '738 of; the Laws of 1872. That act is silent as to just what was to be the character of the strip of land made by the extension of the bulkhead line. The act provided that the department of docks should prepare a new plan for the water front of the city, which said plan, when adopted by the commissioners of the sinking fund, shall, at the time of such adoption be the sole plan, according to which any
By chapter 397 of the Laws of 1893, section 712 was amended by adding to it a clause providing that whenever the plan determined upon and adopted shall include the widening of an exterior street or avenue, the right to maintain such widened portion or avenue already opened shall reside with the said department of docks, and the street or avenue shall not he a public-street, but shall be a marginal wharf, and shall he used in that regard in such manner from time to time as the department of docks shall, by resolution, determine, subject to the approval of the sinking fund commissioners. We have,. therefore (West street extending about twenty feet west of the defendant’s track), a strip of land under the control of the dock department as a marginal wharf extending about 180.feet westerly from West street, and at that- point a ferry house, being the city terminus of a ferry to Hoboken; and we have running upon West street a railroad with a privilege of laying all necessary sidings, turnouts, connections and switches for the- proper working and accommodation of its road. We have the fact alleged by the plaintiff that the construction of this piece of road from the defendant’s track to the ferry house will greatly accommodate the latter in the operation of its road, and will, by such accommodation, enable it to obtain many passengers, whereby the earning power of the plaintiff’s road will be seriously affected. The right of the plaintiff
Now, what is it that the defendant proposes to do ? It proposes to construct two lines of track about 170 feet in length, the easterly side of which connects with its tracks upon West street. The tracks to be constructed are over West street, and- this piece of ground made by the erection of the new bulkhead and the filling in of the .strip between West street and said bulkhead about 170 feet, so that its cars can stand to receive passengers when they come from the ferry. Is this the construction of a new railroad ? Is it the construction of an extension or branch of an existing railroad, or is it a mere siding, turnout or switch ?
By section 91 .of the General Railroad Law it is provided that a street surface railroad, or extensions or branches thereof, shall not be built, extended or operated unless the consent of certain property ■owners and of the local authorities shall have been first obtained; ■and it is claimed by the plaintiff that the construction of these tracks is a violation of the provisions of this section. This section is a part ■of the-General Railroad Law, being chapter 565 of the Laws of 1890, and it would not, I think, affect the rights granted to an existing railroad corporation, which rights had not been lost at the time of the passage of the act, or, at any rate, at the time the constitutional
The authorities in this State are uniform in holding that a right once given a railroad corporation to construct necessary tracks, switches and sidings is a continuing right to be exercised by the-
The material question,- therefore, that must decide the right of this defendant to build this piece of track, must depend upon whether such track can he said to he a street surface railroad, or an extension or branch thereof, or whether it can be said to be a siding, turnout or switch of this existing street railroad. No authority is given in the charter to this company to erect extensions or branches of this road in other streets than those mentioned in the charter, or over property
■ The plaintiff’s casé shows with great distinctness the advantage •that the construction of this siding or turnout will be to the public. By it passengers coming from the ferry can take a car standing upon this siding or turnout and be carried to any part of the city by a system of transfers over the defendant’s other lines of railway. The plaintiff claims that this public benefit is unlawful, unauthorized by law, and is a nuisance which should be enjoined, and that it will be a special injury to the plaintiff corporation, because, by reason of the superior advantages that the defendant’s road offers to the public, the passengers will be diverted from the plaintiff’s railroad. The court is thus asked to enjoin what will be a public benefit because it is a public nuisance, and because it is such a public benefit it will injure the plaintiff’s” business.
For a court of equity, in the exercise of its judicial discretion, to grant such an injunction ifpon the suit of a competing corporation, so as to compel passengers to take its cars or travel upon its line in preference to the line which furnished greater facilities, is, I think, an unauthorized use by the court of the power vested in it.
An examination of the case has satisfied me that the construction of the proposed track by the defendant is within the authority granted to it by its charter;' that it occupies no part of a public street or highway which it was not expressly authorized to occupy, and that the plaintiff was not' entitled to an injunction restraining the construction or use of the track to be constructed by the defendant corporation.
It follows, therefore, that the judgment should be reversed and the complaint dismissed, with costs here and in the court b.elow.
Judgment affirmed, with costs.