44 N.Y.S. 752 | N.Y. App. Div. | 1897
Lead Opinion
The action was brought to restrain the defendant from constructing and operating a piece of street railroad,
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 1873, and its interest as lessee of the franchise owned by the Christopher & Tenth Street Railroad Company, granted by chapter 301, Laws 1873. At the time these franchises were granted, West street was 70 feet wide, and the Christopher Street Ferry adjoined the westerly side of West street. In 1874 the ferry house was destroyed by fire, and thereafter a space 180 feet wide from the westerly side of West street at the foot of Christopher street was filled up and paved, and a new ferry house was built at the westerly side of this space. The plaintiff and the Christopher & Tenth Street Railroad Company had built their roads described in their franchises in 1873 and 1874, before this change of the ferry-house site, and the filling in of the intermediate space; and, after such change had been made, these companies attempted to extend their lines to the entrance of the new ferry house. The Christopher & Tenth Street Railroad Company constructed its extension first, and, when the plaintiff began to' construct its extension, actions were brought by the Christopher & Tenth Street Railroad Company, and by the attorney general, in the name of the people, to restrain plaintiff from constructing and operating its extension, and these actions resulted in decisions and judgments establishing the right of the plaintiff to build and operate its extension, under its franchise granted by Laws 1873, c. 160. The extension of this plaintiff was thereupon constructed, and the two extensions have been operated ever since, the plaintiff having, prior to the commencement of the present action, leased from the Christopher & Tenth Street Railroad Company its franchise and tracks. We must at least adopt the legal principles determined in those cases, and follow them so far as to hold that the plaintiff, at the time the defendant attempted to construct its extension in question, had a franchise, under which its lines had been extended and were legally being operated, over the space from the easterly side of West street to the entrance to Christopher Street Ferry. Indeed, the defendant does not seriously controvert this proposition, but claims
The franchise owned by the plaintiff gave the right to construct and operate its road “through and along West street to Christopher street, at the foot of Christopher street, North river, returning from the foot of Christopher street* North river, thence through and along Christopher street.” And the decisions by the court in the cases above referred to were based upon the ground that the franchise of the plaintiff, by its terms, authorized the company to construct and operate its road not only to the foot of Christopher street, but to the North river; and it could not do that except by passing over the space in question to the ferry house, on the margin of the river. The defendant’s franchise, however, gave it the right to construct and operate its road only along West street, and not to the North river. The defendant claims its right to construct and operate its road over this space to the Christopher Street Ferry, solely by virtue of the provision of its franchise: “With the privilege of laying all necessary sidings, turnouts, connections and switches for the proper working and accommodation of the said railroad, in any of the above-mentioned streets, and of connecting with, running on, or crossing all such other railroad tracks as may lie along or across any of said route, streets, or avenues.” Christopher street was not one of the streets mentioned in the franchise granted; and we fail to see how this clause in the franchise can be regarded as giving authority to construct and operate this piece of road in question, any more than it could be regarded as giving the right to construct and operate any other branch through any other street to connect the main line with any other ferry not lying upon the margin of the streets mentioned, in the franchise. This piece of road can by no proper construction of defendant’s franchise be construed to be a siding or a turnout for the proper working and accommodation of the railroad in any of the streets therein named, or of connecting with or running-on or crossing such other railroad tracks as might lie along or across any of said, routes, streets, or avenues, nor can it be said to be a connection or switch at all. The franchise of defendant did not extend to or include Christopher street at all, unless it might be to cross that street. The plaintiff’s franchise did cover and include Christopher street, and permitted the plaintiff to construct and operate its road, not only along that street, but also to North river. When the defendant’s franchise was granted, in 1SG0, no change of the ferry house at the foot of Christopher street was contemplated, and therefore the space filled in could not have been intended to be covered by or included in the franchise granted. When plaintiff’s franchise was granted, in 1873, however, a change was contemplated in the water front along West street; and the space in question might therefore be said to have been within the intention of the legislature when it gave the right to construct and operate the road, not only to the foot of Christopher street, but also to the North river.
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 was correct in its
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 that:
“No surface railroad corporation shall construct, extend, or operate its road or tracks in that portion of any street, avenue, road or highway in which a street surface railroad is or shall he lawfully constructed, except for necessary ' crossings, * * * without first obtaining the consent of the corporation owning and maintaining the same.”
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 damage is not material. It need not be irreparable, and it was so held in Forty-Second St. R. Co. v. Thirty-Fourth St. R. Co., 52 N. Y. Super. Ct. 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 constructiqn, 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
The decision of the trial court was correct, and the judgment should be affirmed, with costs.
VAN BRUNT, P. J., and PATTERSON, J., concur.
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, extending 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 511 of the Laws of 1860), towards 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 from 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, and, in connection therewith, of the provisions of the general railroad act. In construing these various charters, we must consider them in connection with 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 in 1860. By chapter 511 of the Laws of that year, the Central Park, North & East River Railroad Company acquired a right “to lay, construct, operate and use a railroad with a double or single track as herein provided, and to convey passengers and freight thereon for compensation, through, upon and along the following streets and avenues, route or routes in the city of New York, to
Now, let us lqok 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 70 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 20 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 20 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 defendant’s road, that a siding, turnout, or switch should be constructed at this point. This condition continued until about 1874, when the department of docks, under the authority contained in several acts of the legislature (being chapter 574 of the Laws of 1871, as amended by chapter 738 of the Laws of 1872), erected a bulkhead about 180 feet westerly of the westerly side of West street, filling up the intervening place, and a new ferry house was erected upon the new exterior line, about 200 feet from the westerly track of the defendant’s rqad; and since that time passengers wishing to take the road now operated by the defendant have been compelled to walk this 200 feet, and wait in the street for a car. It will thus be seen 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
By chapter 301 of the Laws of 1873 the legislature granted to the Christopher & Tenth Street Ferry Railroad Company the right to build a railroad along Christopher street, which railroad commenced at Christopher Street Ferry, and ran thencé, 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 track, to the Christopher Street Ferry, the place of beginning, together with all necessary and proper connections, switches, etc. In the same year, by chapter 160 of the Laws of 1873, there was granted to the Central Crosstown Railroad Company a franchise to construct and operate a railroad "through and along West street, with double tracks, to Christopher Street Ferry, at the foot of Christopher street, North river; returning from the foot of Christopher street, North river; thence, through and along Christopher street, with a single track, to Greenwich street”; and thence through and along Greenwich street, to the place of beginning,—together with the necessary connections, turnouts, etc. These two franchises have, by various leases and grants, become vested in the plaintiff; and it is not disputed but that the plaintiff, under this authority, has a right to construct the branch or turnout, or whatever they may be called, across this, land which has been made between the present exterior bulkhead line and the old bulkhead line on the west side of West street. The defendant has also attempted to construct a piece of road extending from its tracks on West street westerly to a point near the ferry house, and about 30 feet east of the bulkhead line at this point; and it is this piece of track, running about 170 feet from its tracks on West street to a point opposite the ferry house, the operation of which the judgment appealed from enjoins, and which such judgment compels the defendant to remove.
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
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 bouse.
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, had the right to build its road to the new ferry house. The plaintiff has introduced in evidence that judgment, with the decision of the court upon which it was based; and I am satisfied to take that decision as an expression of the rules of law which are to govern us in determining just the condition of West street, the strip to the west of West street, and the right
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
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 road as required by the development of its business for the convenience of the public. See New York Cent. & H. R. R. Co. v. Metropolitan Gas-Light Co., 63 N. Y. 330, and cases there cited. And in Re Union El. R. Co., 113 N. Y. 278, 21 N. E. 81, in deter
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 be said to be 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 or other routes than those expressly prescribed; and, if this is an extension or branch of this railroad, it is clearly prohibited, both as unauthorized by its charter and as in violation of section 91 of the railroad law. That act, however, does not apply if this piece of track is simply a siding, turnout, or switch, and thus within the power and authority granted the corporation by its charter. This question as to just what this proposed track can be called is largely one of fact, depending upon the circumstances shown to exist in this case. Can a piece of track less than 200 feet in length, the object of which is to permit cars to stand near a ferry to accommodate the passengers coming from the ferry, and connecting with a street railroad, be called an extension or branch of the road? It seems to me clear that it is not. The words used as applicable to an extension or branch of an existing railroad line ordinarily mean something far more than such a piece of track. It seems to me that this, comes clearly within a
We are not now dealing with an objection on behalf of the people to any act that a corporation created by law may be said to have done in excess of its corporate powers; nor are we dealing with an objection taken by the city of Hew York to the use by this corporation of the city property without the consent of the city. This action proceeds upon the theory that the defendant, by the building of this track, is maintaining a public nuisance by the obstruction, without authority of law, of a public highway, and that, in consequence of the special injury inflicted upon this plaintiff, it has a right to ask a court of equity to abate such nuisance, ■or, by its injunction, to restrain its continuance. If it appears that the only public street that this defendant proposes to use in the construction of this turnout or siding is the original West street, ■and that by its charter the defendant is authorized to construct such a siding or turnout in West street, it is clear that the proposed act is not a nuisance, and that in this- action the plaintiff is not entitled to the aid of the court to restrain its continuance. And so, as before stated, the only street or highway that the defendant proposes to occupy is the 20 feet in West street, to the west of the defendant’s track; for by section 712 of the consolidation act, as amended in 1893, before cited, it is expressly provided:
“But the street or avenue so widened to the extent of the part so widened or ■such new street or avenue opened under this plan shall not be a public street, but shall be a marginal wharf, and shall be used in that regard in such manner from time to time as the department of docks shall, by resolution determine.”
The land upon which it is proposed to construct this track west of the westerly side of West street is not therefore a public street, and the construction upon it of this road cannot be said to be a
The plaintiff’s case shows with great distinctness the advantage that the construction of this siding or turnout will be to the pul> lie. 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 upon the suit of a competing corporation, so as to compel passengers to take its ears 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 injunnetion restraining the construction or use of the track to be constructed by the defendant corporation.
It follows, therefore, that the judgment must be reversed, and the complaint dismissed, with costs here and in the court below.