25 N.J. Eq. 384 | New York Court of Chancery | 1874
The complainants, by their bill, pray, among other things, that the defendants, The Hudson Tunnel Railroad Company and Dewitt C. Haskins, president of that company, may be
On the 18th of November last, the defendants entered on the premises, then in the exclusive possession of the complainants, and broke down and removed part of the fence above mentioned, and commenced digging there a large shaft, thirty feet in diameter, partly on the land in complainants’ possession, and partly on land claimed by The Jersey Shore Improvement Company, and from that time until they were stopped by the interim injunction in this suit, they were engaged in that work with a large force of workmen. The bill alleges, and the statement is not denied, that the defendants have occupied, and are still occupying, the land claimed by the complainants, with large quantities of earth and other matter, thrown out in making the excavation, and have placed and deposited there engines, machinery, and tools, and large quantities of brick, timber, and other materials, to be used in the construction of the shaft; and that they have erected, partly ©n the complainants’ premises, and partly on property claimed by The Jersey Shore Improvement Company, a large temporary building, about seventy-five feet long, and about forty-eight feet wide. The shaft is circular
The defendants claim to be a corporation under the act “ to authorize the formation of railroad corporations, and regulate the same,” (Pamph. L., 1873, p. 88,) commonly known as the General Railroad Law; and they propose, as appears by their articles of association, to construct, under the provisions of that act, a subterranean and submarine railroad, to run through a tunnel, “ from some convenient and eligible point upon the western shore of the Hudson river, and within or near Jersey City or Hoboken, and thence to run by the most direct and feasible route, under the bed of that river, to a convenient and eligible point in that part of the boundary line between the states of New Jersey and New York, lying between Jersey City or Hoboken, and the city of New York, there to connect with another railway to be similarly constructed under the laws of the state of New York, and extending into the city of New York.” They seek to justify their entry upon, and occupation of, the premises, by a license from the board of aldermen of Jersey City. They allege, also, that their -work- is a mere exploration, and, therefore, may be regarded as but temporary in its character ; and they insist that their occupation of the premises is, at most, a trespass, of which this court, on well-recognized principles, will not take' cognizance, and for which an ample remedy exists at law.
The bill raises the question whether the tunnel company is a lawful corporation, entitled to exercise the powers conferred by the general railroad law. It alleges that the land which the defendants have occupied, is “necessary, essential, and indispensable” to the complainants for the purposes of their franchises, and claims that, therefore, the tunnel company, if they are indeed entitled to the benefit of the provisions of the. general railroad law, are, by the thirty-sixth section of that act, prohibited from taking that land, or any part of it, by .condemnation or otherwise. It is unnecessary to consider either of these questions in disposing of the present motion. That the tunnel company have not made compensation to the
The defendants further insist that inasmuch as they have
The order to show cause will be made absolute, and an injunction issued accordingly, ’ - '