42 N.J. Eq. 196 | New York Court of Chancery | 1886
This is an application for an injunction. The special ground on which the court is asked to exercise its prohibitory power is that if the defendants are allowed to use four railroad tracks, which they have recently laid across Spring street, in the city of Newark, for the purposes for which they were laid, Spring street, at the point in question, will be destroyed as a public highway, the contention being that the street, in consequence of the large number of railroad tracks now at that point, will, for the
Before the last four tracks were laid, the defendants had already five others at that point, which were in daily use. They now have nine. The whole nine lie within a space of less than one hundred and fifty-seven feet. The gaps between them extend from six feet to thirty-nine feet. So many crossings within so small a space will, if frequently used for the passage of trains, render the place one of extreme peril. The danger will unquestionably be greater than if a single track was placed longitudinally over the street. In that case, a person using the street for the purposes of ordinary travel would need to guard himself .against but a single danger, but with nine tracks there, running transversely, his peril will be multiplied almost nine times. It is settled that the defendants have no right to lay a single track longitudinally over a public street in the city of Newark without the consent of the proper public authority. Morris and Essex R. R. Co. v. Newark, 2 Stock. 352. The reason that they will not be permitted to make such use of a street is that such use would destroy it as a public highway. A highway, to .answer the purposes for which it is created, must be free, safe and convenient. It is obvious that a street may be more effectually destroyed, in its most essential attributes, by running several tracks transversely over it than by occupying a part of it by tracks running longitudinally.
The charter of the defendants gives them the right to cross public highways, but this right is coupled with a duty. Their charter makes it their duty to construct, and keep in repair, good and sufficient bridges or passages, over or under their railroad, where any public road crosses their railroad, so that the passage of carriages, horses and cattle, on such public road, shall not be impeded thereby. The obligation imposed by this provision makes it the duty of the defendants—and the supreme court has so decided—“to keep, at all times and under all circumstances, the public highways, where they cross their railroad, in a condition fit for safe and convenient use.” And to this end the defendants have power, if the public emergencies so require, to
The use which the defendants intend to make of that part of Spring street where the four additional tracks have been laid will, in my judgment, result in making travel at that point, to
There can be no doubt about the right of the complainants to file this bill. Newark and New York R. R. Co. v. Newark, 8 C. E. Gr. 515. By the charter of the city of Newark, the complainants are given the control and supervision of the streets within the city limits, and they are also charged with the duty to keep and maintain them in a condition so that they are constantly fit for safe, free and convenient use by the public. The neglect of this duty is a crime for which they may be indicted and punished. Morris and Essex R. R. Co. v. Newark, supra.
An injunction will be granted prohibiting the defendants from making any use of the four additional tracks recently laid across Spring street, which will render the street, at that point, unfit for safe and convenient use by the public.