29 N.J. Eq. 566 | New York Court of Chancery | 1878
The defendants are a corporation formed under the general railroad law. They acquired corporate powers for the purpose of constructing a railroad from a point in the line of the Long Branch and Sea Shore Railroad to a point in the line of the New York and Long Branch Railroad, and thus connect the two roads. The proposed road is about two miles long, and both its terminal points are within the territorial limits of the town of Long Branch. The complainants seek to enjoin the construction of the proposed road, first, because, they say, no corporation formed under the general railroad law is authorized to construct a road where both of its termini are within the limits of the same town, city or village; and, second, because this road, as now located, will occupy certain public highways to an unnecessary or unreasonable extent.
Roads less than ten miles in length are clearly authorized. The first section enacts that, in case a proposed road is less than ten miles in length, any number of persons not less than seven may form a company for the purpose of constructing it. (Pev. p. 925.) Public use or benefit, and not extent or length, is the essential test. The language which furnishes the basis of the first ground taken by the complainants is found in the eleventh section. (Pev. p. 927.) That section authorizes a corporation formed under the act to construct railroad between the points named in its articles of association, commencing at or within, and extending to or into, any town, city or village named as the place of the termini of such road: It is contended-that these words plainly mean that each terminus must be at or within a different town, city or
But this is not the only part of this statute to be considered. In construing it, all parts of it bearing on the question in hand must be kept in view, and it must be so interpreted as that all parts of it shall have effect. The twenty-third section expressly declares that a corporation whose road shall be constructed uuder this law shall have the right to connect its road with any railroads within this state or any other state. The sole purpose of the acquisition of corporate functions by the defendants was to build a connecting road between two existing roads. Such purpose is specially legalized. A junction with a foreign road at or within a town, city or village, on many - portions of one boundary, is impossible. To construe the statute as requiring it would defeat one of its plainly-declared objects. The highest tribunal of the state has declared that a junction or connection may be made at a point where neither town, city nor village exists.
Judge Dixon, speaking for the whole bench of the court of errors and appeals, in Att’y-Gen. v. Delaware and Bound Brook R. R. Co., 12 C. E. Gr. 645, says: “For the purpose of exercising the rights plainly intended to be conferred by the twenty-third section, the legislature, in my judgment,
The complainants’ first ground, in my opinion, is not well taken, but, even if the defendants’ authority to construct this road could be considered doubtful, the existence of such doubt would be fatal to the complainants’ claim. A complainant is not in a position to ask for a preliminary injunction when the right on which he founds his claim is, as a matter of law, unsettled. Citizens Coach Co. v. Camden Horse R. R. Co., 2 Stew. 304; Att'y-Gen. v. Delaware and Bound Brook R. R. Co., 12 C. E. Gr. 24; Hackensack Improvement Commission v. N. J. Midland R. R. Co., 7 C. E. Gr. 94. The complainants’ right to invoke the exercise of the prohibitory power of the court, at this stage of their suit, depends entirely upon the defendants’ want of authority. If that question has already been determined against the defendants by the judgment of the appropriate tribunal, or must be according to settled legal principles, the complainants are, as a matter of clear right, entitled now to the aid of the court, but not otherwise. No such determination has been made. The complainants’ right is undetermined and in doubt, and they cannot, therefore, have the remedy they seek until they have first established their right.
I do not think the matter of fact on which the complainants’ second claim to relief rests, is sufficiently established to justify the allowance of a preliminary injunction. • It cannot bo doubted that the defendants^ in the construction of their road, have a right to occupy the highways to the extent of a reasonable necessity. Morris and Essex R. R. Co. v. City of Newark, 2 Stock. 352; Att'y-Gen. v. Morris and
An injunction must be denied.