9 Paige Ch. 323 | New York Court of Chancery | 1841
The question presented for consideration in this case is one of very great consequence to the complainants, if their apprehensions of injury to their canal
There can be no doubt of the right of this court to interfere in a case of this kind, where the consequence of a refusal would be to permit the defendants to do a material and irreparable injury to the complainants’ property. But if the defendants are authorized by law to construct their road on this route, a mere temporary injury, which could be compensated for in damages, would not justify this court in stopping the progress of a great public work, although that work is nominally made by a joint stock company. The papers before me, however, show such a probability of injury by the construction of the rail road upon the line of the canal, that I should not hesitate to grant an injunction
By the fourth section of the original act of incorporation of the New York and Erie Rail Road Company, (Laws of 1832, p. 404,) the directors, after their examinations and surveys had been completed, were to select, and by certificates under their hands and seals, to designate the line, course, or way, which they should deem most advantageous for their rail road, and to file one of such certificates in the office of the register of the city of New-York, and one in the clerk’s office of each of the counties through which the. rail road should pass ; which line, as thus designated, was to be deemed the line on which the corporation should construct its road. Under that act it was probably necessary for the company to designate the whole line of the road from the city of New-York to Lake Erie, and to file the certificates thereof in the proper offices before they proceeded to construct any part of the road; and before they could acquire the legal title to lands, for the scite of the road, by purchase. Certainly it would have been necessary for them to do so before they could have been authorized to enter upon the lands of individuals, without their consent, for the purpose of making the road over the same, or to apply to the vice chancellor for the appointment of commissioners to appraise the damages of the owners of such lands. And when the line of the road had been thus designated by the directors, they would not have been authorized to change the route of the same without the authority of a subsequent act of the legislature, if such change interfered with the rights of any individual, or corporation, or the interests of the public. It is very evident, however, that no such designation of the whole line of the
Upon examining these certificates, however, I cannot see why the route of the road designated therein may not readily be connected with the proposed route by the side of the canal. Four of the certificates designate portions of the line of the road, in the town of Cochecton, which may be west of the diverging point of the two routes, at the Collicoon creek j as it appears by the map that the town of Cochecton lies on both sides of that creek. And there is nothing in the description of the route in either of those certificates, or in the certificate of the location of a section in the town of Liberty, from which I can discover that any of the sections thus located are eastwardly of that diverging point. The sixth certificate is of the location of a section of the road commencing in the town of Mount Hope in the county of Orange, near the corner of a meadow occupied by a Mr. Loomis, and running northwesterly a few thousand feet. But whether this section is east of ‘the diverging point of the two routes, near Port Jervis, between that point and the town of Goshen, or is to the westward of that point, does not appear from any thing contained in
It is not denied that the directors of the rail road company, in their report published in February last, represented the whole line of the road from the Collicoon creek easterly t<? Middletown, a distance of sixty-five miles, as being under contract. I presume, however, if that statement was technically true, that the contracts for the making of the road upon that route were merely nominal, and were entered into for the purpose of producing an effect upon the public mind in reference to the supposed progress of the road. But even if such contracts were entered into bona fide, and with the intention of having the road constructed upon that route under such contracts, it would not be sufficient to conclude the company, and to deprive it of the power to change the route, with the assent of the con
The principles upon which this court interferes by injunction, in cases of this kind, are stated in the case of The Mohawk Bridge Company v. The Utica and Schenectady Rail Road Company, (6 Paige's Rep. 554.) And, for the reasons there stated, it is no objection to the location of this rail road upon the route of the canal, that it cannot be traversed by locomotives without frightening the horses on the towing path, so as to destroy the navigation of the canal. After the road is completed, if the use of locomotives shall be found to have that effect, an injunction may be applied for to restrain such use, and to compel the rail road company to draw their trains over this part of the road by horse power only. The real question to be taken into consideration at this time, therefore, is whether the mere construction of the rail road, upon the line designated in the surveys annexed to the answer of the defendants, will be so imminently dangerous to the canal and the navigation thereof as to render it improper for the defendants to attempt such construction.
The surveys of the defendants certainly show that it must be exceedingly difficult to build a rail road on that route without serious injury to the navigation of the canal. For it appears that the centre line of the rail way is very frequently within fifteen or twenty feet of the waters of the canal, and that at some points it is within ten or twelve feet. And the situation of the adjoining cliffs, for miles, is such that it is probably impossible to construct the road at a greater distance from the canal on the berme side. The difficulty of constructing that part of the road which is to be made between the canal and the river, without .materially injuring the canal, and the towing path which lies on that side of it for the entire distance of the Delaware section, must be equally great. Upon the papers before me, however, I cannot say it is impossible, with proper care and
The value of the interests at stake, however, are so great, and the case is one of so much doubt, that if the complainants wish for an issue to settle the question whether the rail road can be thus constructed and maintained without material injury to the canal, or to the navigation thereof, or imminently endangering their rights in this respect, they may have such an issue, to be tried at the circuit in the county of Orange. And if such issue is found in favor of the complainants, an injunction may issue as prayed for in the bill, upon filing the postea and the clerk’s certificate of the trial in the office of the assistant register, without any further application to this court. The question of costs upon this motion, and of the issue, if the complainants elect to have one in this stage of the suit, are to abide the further order of the court.