People v. Kerr, 37 Barb. 357

37 Barb. 357 | N.Y. Sup. Ct. | 1862

Lead Opinion

Welles, J.

This action was commenced in July, 1860, to restrain John Kerr and his eleven associates from constructing the rail road authorized by the act of April 17, 1860, entitled “An act to authorize the construction of a rail road in the seventh avenue, and in several other streets and avenues in the city of Hew York,” (Sess. Laws of 1860, ch. 513, jo. 1042;) and to restrain the corporation—the defendants, the mayor &c.—from giving assent-to the construction of such rail road. The complaint was verified on the 11th July, 1860. On the 16th of the same month an order was made by a justice of this court in the first district, requiring the defendants to show cause at a special term to be held in said district at a subsequent day,1 why an injunction should not be granted as prayed for and demanded in the complaint; and in the mean time, and until the further order of the court in the premises, that the defendants and each of them, their agents, &c. be enjoined and restrained from entering into or upon either of the said streets or avenues mentioned in the complaint, for the purpose of laying. or establishing such rail road, &c.; and the defendants, the mayor &c., were thereby enjoined and restrained from doing 'any act or thing in furtherance or aid of the grant contained in said act, or to promote the construction of said rail road, until the further order of the court, in the action.

The defendants, the mayor &c., demurred to the complaint, and the defendants Kerr and his associates put in their answer, before any order was made at the special term upon the order to show cause, &c. On the 9th day of January, 1861, an order was made, at special term, against Kerr and his associates, continuing the injunction until the final hearing of the cause; and on the 20th of March in the same year judgment was rendered, at special term, sustaining the demurrer of the defendants, the mayor &c. The defendants Kerr and his associates, who are denominated the private defendants, have appealed to the general term from the order made at special term continuing the injunction as to them, and the plaintiffs have appealed from the judgment sustaining the demurrer interposed by the defendants, the mayor &c. These appeals are now before us for adjudication.

I shall first consider the questions involved in the appeal from the order continuing the injunction against the private defendants.

Those defendants insist that the act of the legislature in question authorizes them and their assigns to construct, operate and use a rail road, and to carry passengers thereon for compensation, through, upon and along certain streets and avenues in the city of Kew York, commencing on the seventh avenue, at the southern extremity of the Central park, and running along and through a great number of streets and avenues, as particularly described and enumerated in the first section of the act. To this claim the plaintiffs interpose a number of objections. It will be proper to state and consider them in -the order in which they are presented.

1st. It is contended that the statute under which the defendants Kerr and his associates claim the franchise in question should he construed as granting the use of the streets, &c. only after compensation made to, or agreed upon with, all owners of any interest in the lands forming the streets, and that it does not establish such right absolutely and unconditionally, or authorize the proceedings contemplated by the grantees in the act, and which were arrested by the injunction. This objection is founded upon the provision contained in the third section of the act, to the effect that in case any real estate or interest therein be required for the purpose of constructing the rail road, for which the persons named in the act, or their assigns, shall be unable to agree with the owner or owners for the use or purchase thereof, they may acquire the same in the manner specified in the 14th, 15th, 16th, 17th, 18th, 19th, 20th and 21st sections of the general rail road act of 1850. The plaintiffs insist that before this rail road can be lawfully constructed, the use or title of the land in the streets over which it Is to pass must be acquired in the same manner as lands are acquired for rail roads authorized by the general rail road act. But this, it seems to me, is an error, as a brief reference to the third section will show. The provision in question commences, “and should any real estate or interest therein be required,” &c.; clearly indicating that, in the contemplation of the legislature, it was uncertain whether the taking or occupation of any real estate would become necessary for the construction and operation of the road. Whether such necessity should be found to exist, was a contingency, to meet which the provision in question was inserted. If the construction and use of the rail road would constitute the taking of real estate, every foot of land thus occupied through all the routes described would inevitably have to be taken, and there would be no such contingency to guard against or provide for, and no propriety in the hypothetical form of the provision; and when the concluding paragraph of the section is considered, it would .seem that all doubt on the question was intended to be removed. It is as follows: “ But in all cases, the use of the said streets and avenues for the purpose of said rail road as herein authorized, shall be considered a public use, consistent with the uses for which the mayor, aldermen and commonalty of said city hold said streets and avenues.” This provision is in the nature of a qualification of the general language of the other, which immediately precedes it, and in my opinion excludes the construction now attempted to be given to the latter by the plaintiffs. It is apparent, from the whole scope and tenor of the act, as it seems to me, that the legislature in passing it assumed the right to grant the franchise in question absolutely and unconditionally, so far as the occupation of the streets and avenues mentioned, for the purposes of the rail road, was involved; and that the clause in the third section upon which the plaintiffs rely in support of their position under consideration, was intended to provide for cases where it might become necessary by reason of numerous angles in the contemplated routes of the road and consequent short curves, and possibly for turn-outs and stations, to take some real estate, not within the streets or avenues, and actually owned or possessed by individuals.

Whether the legislature had the constitutional power to grant to the persons named the unconditional right to construct and operate the said rail road within the public streets and avenues mentioned, in the manner provided in the act, and without paying for the land or otherwise acquiring the right thus to use it, is another question, which will be presently considered.

2d. The plaintiffs contend further, that if construed as an- absolute grant of the use of the streets, without compensation for such use, the act in question is void for its repugnance to the constitutional prohibition against the taking of private property for public use without compensation. (Constitution of 1846, art. 1, §§ 6, 7.) The parties who make this challenge to the validity of the act, are first, The People of the state of Hew York, by their attorney general, and second, the private plaintiffs—the Trustees of the Sailors Snug Harbor, James Brown, William W. Chester, George W. Varían and Samuel B. Alfchause.

This objection is a vital one, and if well taken, disposes of the whole case, as well against the right claimed by the grantees in the act, as against the validity of the act itself. If the act is void for want of power in the legislature to pass it, the acts intended and threatened by such grantees would, if committed, be a public nuisance; and either class of the plaintiffs, or both conjointly, may maintain this action for the injunction—the private plaintiffs, or a part of them, on the ground of the special damage or inconvenience to them as owners of lots adjacent to, or abutting upon, some of the streets in question, as alleged in the complaint, and the people of the state for the purpose of preventing the commission of a public nuisance. The defendants whose rights in this respect we are now considering, concede that a rail road is a special use, not embraced in the notion of a highway; that when not authorized by law, such use of a highway is a public nuisance; that when, for want of legal authority, it is thus a public nuisance, the adjacent proprietor may be specially incommoded by reason of his proximity, and may consequently maintain an action. The propositions contained in these concessions are unquestionably sound, and are well sustained by authority. But it cannot be doubted that if the act in question does not contravene any constitutional provision, the idea that the construction and operation of this rail road would be a public nuisance must be discarded; and in that case it is equally clear that none of the plaintiffs have any standing in court. The act, if constitutionally valid, must be sustained, whatever may be thought of the wisdom or expediency of its provisions.

Before proceeding to examine the question of the power of the legislature to pass this act, it is proper to premise: First, that the constitution declares the legislative power of the state to be vested in the senate and assembly, (Art. 3, § 1;) Second, that it is an established maxim, that a statute, the object and provisions of which are among the acknowledged powers of legislation, is to be presumed valid and constitutional, unless the contrary is clearly demonstrated; that a discussion of the question should therefore proceed upon such presumption, and the objector be regarded as holding the affirmative, and be required to make out a clear case, free from any reasonable doubt. (Fletcher v. Peck, 6 Cranch, 87. Ex parte McCollum, 1 Cowen, 564. Morris v. The People, 3 Denio, 381. Newell v. The People, 3 Selden, 109, per Edmonds, J.) Third, that the subjects of roads and highways, and streets in cities and villages have, time immemorial, been regarded and acted upon as among the legitimate, appropriate and ordinary objects of legislative cognizance. It has been the invariable practice of our colonial and state legislatures to pass laws laying out and establishing them, and for their alteration and discontinuance. Not a session, I believe, has passed without more or less legislation on the subject. The powers of all local authorities on the subject derive their force and vigor from the legislature. Since thte commencement of the era of rail roads in this country, the same legislative power has been exercised without objection, in the passage of laws for their creation and supervision.

The way is now prepared for the examination of the principal question in the case, to wit: whether the statute authorizing this rail road is in conflect with the constitution, for the reason stated in the objection under consideration— that it omits mating any provision for compensation by the private defendants to the corporation of the city of New York, the private plaintiffs or any other other party, for the franchise granted. In order to maintain this objection, it must appear that private property is authorized to be taken for public use. But what private property is contemplated to be taken ? None whatever, that I have been able to discover, except such in respect to which it has been shown provision is made in the act for- compensation to the owners, provided it should become necessary to take any. The fee of the streets and avenues resides in the corporation of the city of New York, in trust, to be kept open forever as streets for the use of the public. This is a public trust for the benefit of the whole people of the state, in which the citizens of the city have the same legal interest and right as, and no other or greater than, the citizens, of each and all other parts or portions of the state.

Assuming that the occupancy of the streets and avenues by the rail road, as provided in the act, would be taking property, within the meaning of the constitutional inhibition, it would be taking public and not private property. The trust vested in the corporation proceeded from the sovereign power, either of the crown of Great Britain or of the state of New York, or from both, and exists for the use and benefit of all the people of the state, who are the beneficiaries or cestuis que trust, for whom the trust was created, and by whom, through their legislature, it is sustained and continued. The mayor, aldermen and commonalty are a municipal corporation—a public artificial existence—emanating and deriving all its powers from the same sovereign source. Like all other municipal corporations, it was created for public purposes only. It has been from time to time, by force of it charters, both ancient and modern, and by various legislative enactments, very properly vested with a great variety of corporate powers and privileges, many of which are probably incapable of voluntary legislative resumption. With the exception of these, the power of the state legislature over the city, its government, its inhabitants and all their interests, rights and obligations, is as perfect and absolute as it is over any other part of the state.

The 16th section of the charter of 1730, granted in the fourth year of the reign of George II, called the “ Montgomerie charter,” gave to the common council power to establish, direct, lay out, alter, repair and amend streets, lanes, alleys, highways, water-courses and bridges throughout the city and island. The late Chancellor Kent, in his notes on the charter, remarks, in reference to this section, among other things, .as follows: “ This grant is of a public nature, without any private interest or property or revenue connected with it, and it has always continued with the common council under free and active exercise; subject 'nevertheless, at all times, to legislative interference and direction-. The legislature interferes with the power, in their discretion, and I think there can be no question as "to the right of the legislature to do so, for the power is not exclusive in the corporation, nor irrevocable, nor in the nature of the grant of a private right. The common council exercise it consistently with legislative directions, and in other cases where the statute law is silent.” (Kent’s notes on the charter, 252.)

It will not be denied that it was competent for the legislature to have subjected the grant in question to the payment of damages or compensation. Indeed it is contended, on the part of the plaintiffs, that such a provision was indispensable to the validity of the act. And I entertain no doubt that it was equally competent to direct such damages or compensation to be paid into the state treasury, to the credit of any or either of the state funds. This, I think, follows from the fact that the corporation hold the streets for the use of the people of the state. It would be simply absurd to say that they hold them in trust for themselves. If the legislature had thought proper they could, in the exercise of their supreme legislative power, have directed such .damages or compensation to be paid into the city treasury, or have devoted the money to general or local, educational or charitable purposes, or have given it such other direction as, in their judgment, they deemed discreet and best. If this be so, it seems to follow that the power to exempt the grantees from the payment of any damages or compensation for the franchise granted, is clearly within the scope of legislative authority.

But the occupation of the streets for the purpose of constructing and operating this rail road does not involve the talcing of property, in such a sense as to come within the prohibition of the constitution, which implies, first, a private owúer; second, a taking from him; and third, the property or thing taken, having thé legal qualities of property, and the owner’s interest in which is capable.of legal estimate. I have shown that the streets are not in the hands of private owners, and that whatever is to be taken is not private property. The grant in the statute is of a franchise. (Davis v. The Mayor &c., 14 N. Y. Rep. 522, 523.) Franchise and liberty, says Blackstone, are synonymous terms, and their definition is a royal privilege or branch of the king’s prerogative, subsisting in the hands of a subject. (2 Bl. Com. 37.) This royal prerogative in England, is, by our form of government, vested in the legislature, who in granting the franchise take nothing from any one ; nor do they part with any thing, except the right to grant to another' the same franchise, their power over which is exhausted by the grant first made. And the grantee takes nothing but a right to do certain things or enjoy certain privileges; and this he does not take from any one, only as he receives it at the hands of the legislature. The franchise may be of great value to its possessor ; still it is nothing but a creature of the mind, intangible, and cannot be seen or felt. We have a mental conception of it, but it cannot be perceived by any of the senses. If its enjoyment requires the appropriation of private property belonging to another, the legislature may authorize such appropriation upon payment of just compensation to the private owner, provided the object and purpose of the grant are for the public use, and not otherwise.

The legislature might constitutionally have passed a law for the construction of this rail road at the expense of the state or of the city, as a street improvement, to be used and operated by all persons who desired, with vehicles adapted to the improved or changed condition of the streets, subject to the payment of tolls or license fees, either to the state or the corporation of the city, or without such payment, under such regulations as the common council might prescribe. (Davis v. The Mayor &c. of New York, 14 N. Y. R. 530, per Corn-stock, J.) It could not be done by municipal legislation, because it would be a new use of the streets, not contemplated by the charter, as is clearly shown by Judge Denio in the case last cited. But the power of the legislature will not, I apprehend, be questioned ; nor can it be successfully contended that in an act for such purpose, it would be indispensable to its validity that it contained provisions for the payment of compensation to any party for taking real estate within the bounds of the streets. And yet, in the case supposed, there would be precisely the same talcing of property as in the present case. If any property would be taken, it would be for public use; and just so in the case before us. In all our rail road corporations, private property is allowed to be taken, upon compensation to the owner, on the ground that it is taken for public use. (Bloodgood v. The Moh. and Hud. River R. R. Co., 18 Wend. 11, and resolution at the end of the case, on page 77.) In all those cases, actual and exclusive possession of the private property is taken by the rail road companies. In the case at bar, I cannot perceive that the construction of the rail road in the streets and avenues, and operating it when completed, involves the taking of property. The iron rails are to be laid down, but the grade of the streets is not to be interfered with. The track of the road does not become the property of the grantees. All they get is a license or liberty, irrevocable it may be, to construct and operate the road, to be enjoyed subject to the rules and regulations of the common, council. No one is prohibited from passing over and along the track with teams and vehicles, the same as if no such track had been constructed, or the act had not been passed, subject only to the prior right of the owners of the franchise to use it with their carriages or cars. The act does not transfer any property to the private defendants. All it does in this respect is to grant to them the liberty to use—not to take—public property for public use, without excluding other persons from their former use of the same property. And the use which is thus granted is nothing more than the privilege of passing and repassing over and through the streets in question with a species of conveyance different from any which the public generally enjoy or use. It does not give a possession, even assuming that streets were private property, for which the private owner could maintain ejectment. The provision of the constitution invoked by the plaintiffs, was not, as I think, intended to embrace a case of this description.

3d, The plaintiffs also challenge the validity of the act, upon the ground that it contravenes section 9 of article 1 of the constitution. That section provides that “ The assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill appropriating the public money or property, for local or private purposes.” The plaintiffs contend that the act confers the public property for a private purpose, in surrendering to the grantees a portion of the public easement in the streets. It is hardly necessary to devote much time or labor to this objection. The plaintiffs, if I apprehend them rightly, do not place much reliance upon it. If the views herein put forth, in considering the second objection—that the grant of the franchise in question is for a public and not a private use—are sound, or the conclusion arrived at on that subject be correct, a perfect answer is furnished to this objection, assuming that the act did not receive the assent of two-thirds of the members elected in each branch of the legislature, but that it was passed by a vote of two-thirds of a quorum present in each house, pursuant to section 9 of art. 4 of the constitution.

I have thus, at much greater length than I could have wished, considered and disposed of the general propositions of the plaintiffs in support of the injunction, and am brought to a conclusion adverse to their right to maintain it.

Since the argument in this case, this court, sitting in general term in the second district, has. decided the case of The Brooklyn City and Newtown Rail Road Co. v. The Coney Island and Brooklyn Rail Road Co., in which it is held, among other things, that the legislature possesses the power to confer upon a corporation the privilege of building and using a horse rail road in the streets of a city, without the consent of the owners of the soil over which the streets are laid out; such a use of the street being merely a mode of exercising the public right of travel, and not an appropriation of the property of the owners of the land, requiring compensation in damages. That such a franchise or. privilege may also be created or conferred without the consent of the city authorities, if the legislature sees fit to repeal, pro tanto, the portions of the general rail road act, or of any other statutes requiring such consent. (35 Barb. 364.) The case did not coiné under my observation until a few days since, nor until the foregoing opinion was principally prepared. If that decision is good law, it in effect disposes- of the present case in favor of the defendants. It is needless to say that I concur in the principles it enunciates. So far as the provisions of the act under which "the private defendants claim the right to construct and operate the rail road in question conflict with the general rail road statute, or any other statute on the subject of rail roads in cities which were enacted prior to the passage of the former, the latter statutes are, pro tanto, repealed by it. (Act of 1860, ch. 513, p. 1042, § 5.).

For the foregoing, among other reasons, I think the order of the special term continuing the injunction should be reversed, and the injunction discharged.

In relation to the order and judgment sustaining the; demurrer by the mayor &c., it follows as a necessary consequence, from the views expressed upon the appeal just .considered, that such order and judgment should be affirmed: Because, if the conclusions arrived at are correct, or in other words, if the statute in question is free from any constitutional objections, and I am not in error in the interpretation I have given it, none of the plaintiffs have any legal ground of complaint, or any legal standing in court. If this were not so, the demurrer is well taken, and should he sustained for the reasons so well stated in the opinion of the learned justice who held the special term.

Sutherland, J.

I think it is immaterial to the decision of any question presented by the appeals from the orders made at the special term in this case, whether the fee of thd streets upon or through which the rail road is to be constructed and operated, is in the city corporation, or in the abutting lot owners. Whether they have been opened and devoted to public use under the street acts, or have come by grant, dedication or usage, these streets are public highways, as much so as the Hudson river, or as an old country common highway, or a country public road laid out under the highway act. (2 R. S. 5th ed. 394 et seq.) The grant in the Dongan charter, of the streets, &c., was a grant of them for .public use. Land taken under the street acts, without the consent of the owners, has been deemed taken for public use. (Matter of Albany street, 11 Wend. 148. Embury v. Conner, 3 Comst. 511.) Land in the city which has been expressly or impliedly dedicated for streets, has been dedicated to the public: the ^public are the people of the state, and not the inhabitants of the city merely.

The jus .publicum, or right of the people in common in a highway, is not property, whether viewed in the abstract, or in the concreta; nor does it rest on' or arise from contract. It can hardly be said to be derived from government; but it is evident that there must be some power in every state to lay out, alter and discontinue highways, and to regulate the public use of them. What power has been conceded by the courts to the legislature of this state over its public highways, will be shown hereafter.

The act of the legislature, authorizing John Kerr and his associates named in the act, to construct and operate the rail road, with its turnouts and switches, is a mere legislative license to do so. It does not authorize them to alter the grade of the streets, or to remove any of the soil thereof, or to dig up, or disturb the same, any further than may be required to construct the road with its turnouts and switches. We must assume that, when constructed, the rail road will conform to the present grade of the streets, and that the process of its construction will not cause any greater disturbance of the bed or soil of the streets, or inconvenience to the public, than a re-paving of the streets would cause.

The act does not declare or require as a condition, or otherwise, that Kerr and his associates shall obtain the consent of the city corporation, or of the abutting lot owners, to the construction of the road; nor does it declare or require as a condition, or otherwise, that Kerr and his associates shall acquire the fee of the streets, or any estate or interest in the soil or bed of the streets, as distinguished from the public use to which they have been devoted or appropriated; but the third section of the act contains this provision: “And should any real estate or interest therein he required for the purpose of constrcting said rail road on said route or routes, as above specified and authorized, for which the said persons above named, or their assigns, shall be unable to agree with the owner or owners for the use or purchase thereof, they may acquire the right to use, or title to the same, in the manner specified in the fourteenth, eighteenth, nineteenth, twentieth and twenty-first sections of the said act of April second, eighteen hundred and fifty, (the general rail road act,) except that in any of the proceedings for any of the purposes authorized by this section, it shall not be necessary that the petition to the supreme court shall make an allegation of or reference to any incorporation, capital stock, surveys or maps, or of the filing of any certificate of location. But in all cases the use of said streets and avenues for.the purposes of said rail road, as herein authorized, shall be considered a public use, consistent with the uses for which the mayor, aldermen and commonalty of said city hold said streets and avenues,”

It is plain to me, from the whole act, more particularly from the extraordinary provisions of the fourth section, that the provision of the act above quoted presents, and was ingeniously and designedly carefully worded to present this question, to wit: Could the legislature constitutionally anthorize Kerr and his associates to construct and operate the rail road as authorized by the act, without the consent of the owner or owners of the fee of the streets and avenues upon or through which it was to be constructed, whether such fee be in the city corporation or the abutting lot owners, and without making any compensation to such owner or owners ? If the legislature had power to authorize Kerr and his asso- f ciates to construct and operate the rail road without such' consent, and without making any such compensation, I think' the act gives them, and was intended to give them, such an-. thority; for, concede this legislative power, and no property, estate or interest in the streets and avenues is “required for the purpose of constructing” or operating the rail road as authorized by the act.

The legislature cannot. take_the property either of the city corporation or of the abutting land owners, and give it to Kerr and his accociates, without consent and without due compensation, even for public use; nor can the legislature take such property, without consent, for private use, even ytithjujl compensation; and to deprive one of the use of his land, is .depriving him of his land; for, as Lord Coke long ago said, “What is land but_the uses, thereof ?” An act of the legislature undertaking to authorize the construction and operation of a rail road over a man’s land, in his possession, and of which he has all the present uses, without taking it, but leaving the fee or title in him, without his consent and without compensation, would be just as unconstitutional as if it undertook to take the land, or to transfer the fee of it, without consent and without compensation. The existence of the road would be a continuing trespass. If such road should be constructed under a paroi license, such paroi license could not transfer the title, on account of the statute of frauds, but the owner of the land would have no action for damages, either direct or consequential, from its construction or continuance, sustained while the license remained unrevoked. (Miller v. The Auburn and Syracuse R. R. Co., 6 Hill, 61.)

It will be noted that in the case just cited the action was not trespass, but case, for consequential damages, and that the rail road was constructed upon a street in Auburn, but that the question as to the right of the company to locate and continue their road on the street, without the consent of the plaintiff, an abutting land owner, without being liable to him for any direct injury as having the fee of any portion of the street, did not arise, and was not decided.

The rail road to be constructed by Kerr and his associates is to be constructed and operated through or upon certain public streets in the city of Hew York, every inch of the surface of which is devoted to public use as highways ; and it is plain, if the privilege conferred on them, of using the streets for the construction and operation of the rail road, is consistent with the public use as highways for which the streets were opened under the street acts, or dedicated or appropriated by the owner or owners of the fee, that it is immaterial where the fee of the streets is; for then- such use of the streets, though it may be a new mode of using them for public travel, is within the purpose for which they were devoted to public use, and such new mode of using them cannot be said to deprive the owner or owners of the fee, of any private property, or private possessory right, in or to the streets.

The'act confers on Kerr and his associates the privilege of constructing and operating the rail road, and of carrying passengers on it for compensation. I cannot see why this privilege must not be considered as conferred for the purpose of facilitating public travel, and as consistent with the use to which the streets have been appropriated as public highways 5 as much so as the privilege of running a line of omnibuses through the streets, to carry passengers for compensation. nopolyponferreci t'or the purpose of.carrying passengers on public highways, and therefore either mode of using the street is within the purpose and consistent .with the use for which they were given up to the public. The abutting lot owners, as citizens, may have a right to complain of the monopoly, or as abutting lot owners, or otherwise, of consequential damages; but assuming the fee of the streets to be in them, I do not see how they can complain that the use of the streets by Kerr and his associates for the purpose authorized by the act, will not be consistent with the purpose for which the streets were given up to the public.

The indirect or consequential injury.to the abutting lot owners, which may be caused by the construction or operation of the rail road, will be precisely the same, whether the fee of the streets he in them, or in the city corporation. I cannot see how either its construction or its operation, as authorized by the act, can be or cause any direct injury to the owner or owners of the fee of the streets, simply as such, whether the fee be in the city corporation or in the abutting lot owners. It is plain, that the whole question of damage is one, as to indirect or consequential, not direct damage.

My intellect is not acute enough to see how the carrying of- passengers in cars on iron rails, inserted in the pavement of a street, can be or cause any greater injury to the fee of the street, or to the owner or owners of the fee as such, than the carrying of passengers in omnibuses through the street. Considering the complete and extensive servitude in favor of the public, with which the fee of the streets through which the rail road authorized by the act is to be constructed, is charged, I do not know that it is using too strong language to say, that it is absurd to say that either use of these streets can possibly be any injury, either to the fee, or its owner or owners, simply as such. I believe it is true as a physical fact, that the motion of the car shakes the earth less than that of the omnibus.

These views, as to the immateriality in this case, of the question which has been so much discussed, whether the fee of the streets in the city of New York is in the city corporation, or in the abutting lot owners, is. sustained -by the decision of the general term in the second district, in the case of The Brooklyn City Rail Road Co. v. The Coney Island and B. R. R. Co., (35 Barb. 364.) They are also in accordance with the views expressed by the supreme court of Connecticut, per Ellsworth, J., in Elliot et al. v. Fair Haven Rail Road, (Law Reporter, Feb. 1861, p. 619, &c.) They appear to me to be sustained by the views expressed by Ch. J. Shaw, in Commonwealth v. Temple, (Am. Law Reg., Sept. 1861, p. 678, dec.) In the case of The Philadelphia and Trenton R. R. Co., (6 Whart. 25,) it was directly held per Gibson, Ch. J., that the provision in the constitution of Pennsylvania, that private property shall not be taken for public use without compensation, did not prohibit the legislature of that state granting to a rail road company the privilege of laying rails on the streets'of Philadelphia, and of .using the rail road so made. At page 45, Ch. J. Gibson, after citing cases to show that the legal title of the ground probably remained in him who owned it when the street was laid out, says, “but even that is an immaterial consideration; for an adverse right of soil could not impair the right of way over it, or prevent the legislature from modifying, abridging, or enlarging its use, whether the title were in the corporation or a stranger.” He afterwards says, “ what then is the interest of an individual inhabitant as a subject of compensation, under the constitutional injunction that private property be not taken by a corporation for public use, without it ? Even agreeing that his ground extends to the middle of the street, the public have a right of way over it. Neither the part used for the street, nor the part occupied by himself, is taken away from him; and as it was dedicated to public use without restriction, he is not within the benefit of the constitutional prohibition, which extends not to matters of mere annoyance. The injury of which he can complain, is not direct, but consequentialI do not mean by quoting this without comment, to imply that I approve of the construction of the constitutional prohibition, that it does not extend to consequential damage; although, as I shall show hereafter, if may bé'cónsidered as a settled doctrine of American law, that it does not; but I do approve of what Ch. J. Gibson says, to show that the question of damage was one merely of consequential damage; that there was no direct taking of any property in the soil of the street, and no direct injury to the abutting lot owner, in respect of his ownership of the soil of the street, assuming that his ground extended to the middle of the street.

The whole opinion of Chief Justice Jones, in Drake v. Hudson R. R. Co., (7 Barb. 508,) goes to show that he considered it immaterial, in that case, whether the fee of the streets was in the abutting lot owners, or in the corporation. I think the like remark may be made as to the opinions of the judges in Milhau v. Sharp, (15 Barb. 194. See also Hamilton v. The N. Y. and Harlem R. R. Co., 9 Paige, 171; Adams v. Saratoga and Washington R. R. Co., 11 Barb. 450; Chapman v. Albany and Schenectady R. R. Co., 10 id. 365; Lexington and Ohio R. R. Co. v. Applegate, 8 Dana, 290.)

If the use of the streets authorized by the act would be a nuisance if unauthorized, and if the fee of the streets is in the abutting lot owners, it does not follow that the abutting lot owners could maintain trespass for such use, or that such use will be inconsistent with the purpose for which the streets were laid out or dedicated as highways; there may be traveling nuisances; there maybe a use of a street as a highway, which, if unauthorized, will be a nuisance.

If a full grown elephant, however docile, should be driven up Broadway in the middle of the day, such use of the street would no doubt be a nuisance, as those having horses in the street would soon discover; but who would suggest that the owner or owners of the fee of the street could maintain trespass against his keeper on the ground that this was a new use of the street, or one not anticipated when the street was laid out, or dedicated.

Driving droves of cattle through the streets of a city may be a great nuisance, and the drovers liable for consequential damages, for such use of the streets, after an ordinance forbidding it—but could the owners of the soil of the streets maintain trespass for such forbidden use, on the ground that such use of the streets was inconsistent with the purpose for which the streets were laid out or dedicated as highways, or on any other ground ?

The city authorities might undertake to grant to a manufacturing company, or to an individual, the privilege of carrying gunpowder or some foetid article through a particular street of the city in a way so dangerous or offensive, as absolutely to drive those living in the street out of it. If made without authority, the grant would not protect the company or individual thus using the street under the grant against actions for consequential damages ; but who would suggest, if those living in the street owned the ground to the middle of the street, that they could maintain trespass for such use of the street ?

Steam may yet be used to move ordinary wagons and coaches, carrying freight and passengers, up hill and down hill, over common country highways.. I can see that such new use of a country road, the noise and smoke of the engine, with its train of wagons or coaches, might be a nuisance to the farmers and others living on the road, and to all traveling the road with horses—but can it be pretended that the farmers and others owning the fee of the road could maintain trespass for such use of the road; or that the legislature would not have power to authorize such use, without compensation for the fee or any private property or possessory right in the road ?

What has been said does not at all interfere with the cases holding that the owner of the soil may maintain an action of trespass for obstructing a country highway, or for an unauthorized interference with his private possessory rights in it. (Lade v. Shepherd, 2 Strange, 1004. Harlow v. Humiston, 6 Cowen, 189. Dygert v. Schenck, 23 Wend. 446, and other cases cited by counsel.) But I doubt, considering that the ordinary public use of the streets in the densely inhabited portion of the city, under the regulations of the city authorities, practically leaves to those living on them no private use or private possessory right of or in them, whether the doctrine of these cases can reasonably be applied as to obstructions in these streets, assuming the fee in them to be in the abutting lot owners.

I think the cases, The Trustees of the Presb. Church in Waterloo v. The Auburn and Roch. R. R. Co., (3 Hill, 567,) and Williams v. New York Central R. R. Co., (16 N. Y. Rep. 97,) should be considered as having been decided on the theory that the acts of the legislature authorizing the construction of the roads (the Auburn and Bochester in the first case, and the Utica and Syracuse in the other case, to the rights and liabilities of which the Hew York Central by the act of consolidation succeeded,) required these companies to acquire the title to the soil of the highway, and to. compensate the owner therefor. The first rail road act passed in this state, (the Mohawk and Hudson, passed in 1826,) and all those passed subsequently, authorized the company (if not enjoined absolutely as a condition) to acquire title to the land necessary for the construction of the road. The acts also contained a clause substantially the same in all of them, authorizing the company to construct their road across or upon any highway, but upon condition of restoring the highway so as not unnecessarily to have impaired its usefulness. The universal practice had been for the rail road companies to take .and pay for the title to the land, ancLnot to compensate the owner merely for the use .of the land, leayin^Jh^jfee.or legal title in him. I do not know how far this universal practice and the authority, if not requirement in the acts, to • acquire the fee or legal title of the land, and not merely the use of it, and the requirement in the acts, when a highway was used, to restore it to its former usefulness, may have led to the decisions last referred to; but I must say that I do not believe these decisions would ever have been made, had it not been for the circumstances or considerations just adverted to. If in these cases the court intended to hold that the legislature of this state had not the power to authorize the construction of a rail road across or upon a public highway, without compensation to the owner of the fee of the highway, they appear to me to be irreconcilable with the full force and effect which has been given, and which must be given, to the decision of the court of' errors in Bloodgood v. Mohawk and Hudson R. R. Co., (18 Wend. 10,) and with the decisions in Lansing v. Smith, (4 id. 9,) and Gould v. Hudson River R. R. Co., (2 Selden, 522,) and other cases which will be cited hereafter, establishing the doctrine_that. tbnjegisjtoiuze (irrespective of the constitution of the United State) has unlimited power over public highways, and can obstruct, alter or discontinue them, or grant exclusive special privileges in or of their use, without, any.comp.ensationrioj.ndividuals_foirindi^tmjury, or.mere^onsequentialjiamage.

But in any view of the cases in 3 Hill and 16 N. Y. Rep., above spoken of, they do not apply, and probably were not intended to apply, to horse rail roads in cities, conforming to the grade of the streéts. So also, the case of Brown v. Cayuga and Susquehanna R. R. Co., (12 N. Y. Rep. 486,) must be deemed to have been.decided ón the ground that the authority given by the act of- the legislature to construct the rail road across any stream, &c., only authorized the company which constructed'the rail road, to construct it across the stream in such a manner as not to cause injury to those owning adjoining property; or if the stream could not be crossed without causing such injury, that the section of the act giving the authority impliedly required that the company should make compensation for such injury. Judge Johnson says, in his opinion, that the question was “ one of construction, whether the language of the legislature,” &c.

It is plain to me, that this question as to the fee of the streets of the city of New York, has had too important a place given to it in these city rail road cases. What is this fee, and what is its value ? It is the mere legal skeleton fee in the ground or soil of the streets divested of all private uses, and of all private possessory rights, of, or in, the surface of the streets at least, by the complete devotion of the surface to public use; which public use is so extensive as, under proper regulations of it by the city authorities, practically to leave no room for any private use or private possessory_right. ft may be called the legal organic remain of the body of living public uses rising from it. It is not a possibility of reverter, like that by the feudal law left in the feoffer or grantor, on every feoffment or grant in fee, before the statute of quia emptores ; but as to value, it is of no more value than such possibility of reverter would have been, divested of all feudal services. It is a present legal estate, but really only of nominal value, for its value as to any particular street is the value of the possibility of the public use ceasing by the discontinuance of the street; and as the privilege of the use of the streets granted to Kerr and his associates must probably be deemed to have been granted subject to the right of the city authorities to discontinue the streets, under the act of 1818, or otherwise, I do not see h.ow this privilege can affect this possibility .of re.vert.er,__not of the fee, but-of the uses of the fee. If the fee of the streets, upon or through which the rail road is to be constructed, is in the city corporation, (as it certainly is, if they were opened under either the street act of 1807, or of 1813;) and if the use of the streets by the city corporation for laying water and gas pipes, and granting permits to build private vaults under the surface of the streets, is or should be considered a private use, or property right; I do not see how the construction or operation of the rail road can interfere with such use or right. Indeed, probably the privilege granted to Kerr and his associates, should be considered as granted subject to such use of the streets beneath the surface, by the city corporation.

' It is curious, and I must confess not very agreeable to me to see, with what tenacity the courts have held on to this skeleton fee in public highways, with the avowed purpose of protecting..private rights from legislative power, as if by way of compensating for the apparently little struggle, with which such rights have been yielded up to legislative power in respect to indirect or consequential damages, however great or destructive, caused by the grant and exercise of legislative monopolies.

If the streets through or upon which the rail road is to be constructed are public highways; and neither its construction or operation will deprive the owner or owners of the fee of the streets, whether the fee be in the city corporation or the abutting lot owners, of any private right of property, use or possession in or to the streets ;'jit follows,jthat the only question presented by the appeal from the order of the special term continuing the injunction, is simply one as to the power of the state legislature over a public highway; as to the public, whom I consider the attorney general as representing in this case; as to the private plaintiffs as abutting lot owners or occupiers, who allege that as such they will suffer certain special resulting or consequential damages, by the construction and operation of the rail road; and as to the city corporation, having or claiming certain chartered rights.

As the corporation is a defendant and not a plaintiff, I am not entirely satisfied that the question of legislative power, as to it, is in the case; but the justice at special term held, if the act of the legislature was unconstitutional and void as to the city corporation, that the construction and operation of the road would he a nuisance as to the public, and that the private plaintiffs, alleging individual special resulting damages, consequently had a right to the injunction asked for; and I shall not criticise very closely the right either of the attorney general, or of the private plaintiffs, to raise the question of legislative power as to the city corporation; particularly as the act expressly prohibits the city corporation from doing any act to hinder, delay or obstruct the construction or operation of the road.

The question of power as to the public, and the question of power as tojbhe private plaintiffs, as alleging apprehended individual consequential damages merely, may he considered as qne question; for it is perfectly settled, as the cases cited hereafter on the question of legislative power will show, if the legislature had the constitutional power to authorize Kerr and his associates to construct and operate the rail road as to the public, so that neither its mere construction, nor its mere operation in pursuance of the act, will not and cannot be a public nuisance, it had the constitutional power to authorize the construction and operation of the road as to the private plaintiffs in this case, or any other individual or individuals, "without their consent, and without providing for any compensation to them for mere consequential damages; and it may be conceded, if the legislature had not this power as to the public, that then the construction or operation of the road would he a nuisance; and any individual suffering special consequential injury thereby, would have an action for the same; and that the private plaintiffs, as alleging apprehended individual consequential damages, or the attorney general in behalf of the public, or both jointly, would have a right to the injunction asked for, restraining Kerr and his associates from proceeding to construct the road under the act.

So far as the cases, Fletcher v. Auburn and Syr. R. R. Co., (25 Wend. 462,) and The First Baptist Church in Schenectady v. The Schenectady and Troy R. R. Co., (5 Barb. 85,) hold, or the court therein intended to hold, that a railway company may "be authorized by the legislature to construct and operate its road upon a public street or high- • way, without regard to any private property, use, or right of individuals, in or to the street or highway, and yet be liable to individuals for consequential damages from the mere construction or operation of the road according to the act of the legislature authorizing its construction and operation, when no provision is made in the act for compensation for such consequential damages, they are in conflict with the settled principles of American law as to the power of the state legislatures over public highways, and over the rights of the public and of individuals in them, hereafter stated, and with the cases cited, and many others which might be cited, sustaining or declaring it.

All questions as to any direct injury to the private plaintiffs, as having any individual or private rights of property, use or possession, in or to the streets through or upon which the rail road is to be constructed, being out of the way; the first question to be considered then is, had the legislature the constitutional power to authorize Kerr and his associates to construct and operate the rail road, as to the public; and as to the private plaintiffs, without their consent, and without providing for any compensation to the private plaintiffs for their alleged indirect or mere consequential damages, as abutting lot owners or occupiers, or otherwise ?

It is clear that at common law a common highway could not be changed without the "king’s license, first obtained upon a writ of ad quad damnum, and an inquisition thereon first found, that such a change would not be prejudicial to the public. (1 Hawk. P. C. 201, chap. 76, § 3. Jacobs’ Law Dictionary, Highway, p. 208, § 34. Thomas v. Sorrell, Vaugh. 340, 341. The King v. Warde and Lyme, Cro. Ch. 266. For form of lorit, see Jac. Law Die., Ad quad damnum.) From the form of the writ, and the cases cited, I think it clear that the writ of ad quad damnum stood between the crown and the jus publicum, or the right of the king’s subjects in common in a common highway; and that the crown, at common law, had not the power to discontinue or obstruct a common highway, or impair or modify this public or common right, until the writ issued. (James v. Hayward, Cro. Ch. 184. Rex v. Inhab. of Fleaknow, 1 Burr. 465.) In the case of Thomas v. Sorrell, (Vaugh. 341,) above cited, it is said, “ that if, upon the return of an ad quad damnum, it appears to be ad damnum vel prejudicium of no man, the king may then license the stopping of an ancient highway, or diverting a water-course, or part of it, for the concern is then wholly his own; but without his license it can never be done, though a better way be set out, and so returned upon an ad quad damnum.” In another part of the opinion it is said that the king could not dispense with the law declaring the obstructing a highway, diverting a water-course, or breaking down a bridge, to be a nuisance, though only punishable by the king, “ because such a dispensation would take away the action of those who had particular damage by the offense done.” The king could grant the soil under navigable rivers and arms of the sea, but he could only make such grants subject to the public right of free navigation. He could not authorize or legalize a public nuisance, by authorizing an obstruction to such public right. (Lansing v. Smith, 4 Wend. 21, 22, opin. of the Chancellor. Atty. Gen. v. Johnstone, 2 Wils. Ch. 95. King v. Ward, 4 Adol. & Ellis, 392. Atty. Gen. v. Parmentier, 6 Exch. Rep.) It is clear, too, that the king could not, at common mon law, grant to a corporation, or an individual, such a special, exclusive privilege in the use of a common highway, as is conferred on Kerr and his associates by the act of the legislature of this state, because.it confers or grants a monopoly; certainly not without the writ of ad quad damnum first being issued. (1 Hawk. P. C. 230, 231. Jacob’s Law Dic., Ad quad damnum.) Jacob says: “Ad quad damnum is a writ which ought to be used before the king grants certain liberties, as a fair, market, &c, which may be prejudicial to others. It is directed to the sheriff to inquire what' damage it may do for the king to grant a fair, market,” &c.

Parliament is. theoretically omnipotent; and of course this jus publicum, or public right in a highway, within its jurisdiction, is, and always has been, entirely under its control; and so indeed are all the property rights of the king’s subjects. Theoretically, there is no limit to .the power of parliament within its jurisdiction, other than physical impossibility ; but it would appear that parliament has generally thought it right, in authorizing the construction of rail roads, to extend its protection to private property so far as not only to require compensation to be made for property directly taken, but for mere consequential damages, or when property not taken is injuriously affected by the construction or operation of the road. (See Sedg. on Stat. and Con. Law, 523, 524, n.; Queen v. Eastern Counties R. Co., 10 Adol. & El. 531; Glover v. North Staff. R. Co., 5 Eng. Law & Eq. 335; Act of the 6th and 7th Wm. IV. ch. 109; Turner and others v. The Sheff. and Roth. R. Co., 10 Mees. & Wels. 425; The Act 8th and 9th Victoria, ch. 18, commonly called, the Land Clause Consolidation Act; East and West India Lochs and Birmingham June, R. Co. v Gatthe, 3 Man. & G. 115; Glover v. North Staff. R. Co., 15 Jur. 673, 20.) It may be stated as a well settled American doctrine, that the state legislatures have unlimited power over public rights in a highway, and can obstruct, modify, impair or extinguish them, as to any highway, or portion of a highway, except so far as the state power is qualified by the commercial clause in the constitution of the United States, without malting any compensation to individuals for resulting or consequential damages.

In 1797 the legislature of the state of New York passed an act (20th Session, ch. 70) granting to Anthony Dobbin and another, for a term of years, the exclusive privilege of running stage wagons or other carriages for the transportation of passengers between Groshen, Orange county, and the city of Hew York, and imposing a penalty of $500 upon any other person or persons who should "do the like. See also act (26 id. ch. 20) granting like exclusive privileges in the use of another highway, to Torrence Donally and others, with like penalty. Also act (27 id. ch. 37) granting like exclusive privilege in the use of another highway, with like penalty, to Levi Stephens and another. In Perrin v. Sikes, (1 Day’s Rep. 19,) decided in 1802, the court of errors of Connecticut held that a grant by the legislature of that state, to one Sikes, of the exclusive privilege of running stage wagons on the post road leading from Hartford to Boston, as far as the state line, with a penalty imposed upon others who should do the like, was valid. In Wales v. Stetson, (2 Mass. R. 143,) decided in 1806, the supreme court of Massachusetts, per Parsons, Ch. J., held that the legislature of that state had power to authorize a turnpike company to erect a toll gate upon a public highway. The plaintiff was non-suited on a construction of the act, that the legislature did not intend that the gate should be placed on the old highway ; but the point of legislative power was distinctly held by the court. This case will be referred to hereafter, on another point.

The acts of the legislature of the state of Hew York, passed in 1797 and 1803, granting to Robert R. Livingston and Bobert Fulton, for a term of years, the exclusive right of navigating by steam all waters lying within the state, with severe penalties against all others who should do the like, were held valid by the court of errors. (Livingston v. Van Ingen, 9 John. 507. Ogden v. Gibbons, 17 id. 488.) These acts were held to be unconstitutional and void as against Gibbons who had taken out a United States coasting license for a steamboat, by the supreme court of the United States, solely on the ground that they were in conflict with the commercial clause in the constitution of the United States. Gibbons v. Ogden, 9 Wheat. 1.) In Commonwealth v. Breed, (4 Pick. 464,) it was held that an act of the legislature of Massachusetts, authorizing the building of a bridge over navigable waters within the commonwealth, was constitutional ; that the legislature were to determine when public convenience or necessity required such an obstruction to navigation ; and upon what terms and conditions it should be allowed; that it had power to regulate and control all public highways and navigable waters. In Spring v. Russell and others, (7 Greenl. 273,) it was held that the plaintiff had no right of action against certain canal proprietors, who, under an act of the legislature of the state of Maine, had turned the channel of the Saco river, and thus prevented the plaintiff floating his logs down the river, as otherwise he would have done. In Bates v. The Rail Road Co., (4 Harr. 389,) it was held that the legislature of the state of Delaware had the right to authorize the obstruction of the navigation of White creek, a navigable stream within the state, by the building of a bridge over the stream, without compensation for consequential damages—so held as against the plaintiff, who had mills above the bridge, to which vessels with masts could come before the erection of the bridge, and who brought the action for damages. In 6 W. & Serg., 101, (Monongahela Navigation Co. v. Coons,) it.was held that the legislature of Pennsylvania might constitutionally authorize the Monongahela Navigation Company to create slack water navigation by means of locks and dams in the Monongahela river, without providing for any consequential damages to individuals—so held where the plaintiff’s mill was injured by such obstructon. In O’Connor v. Pittsburgh, (6 Harr. Penn. R. 187,) it was held that there was no remedy for damages in cutting down a street by legislative authority, though a building on adjacent property be destroyed. In this case, Gibson, Oh. J., (p. 190,) says: “The constitutional provision for the case of private property taken for public use, extends not to the case of property injured or destroyed.” (See also Radcliff’s Executors v. Mayor of Brooklyn, 4 Comst. 195.)

In this state, this unlimited power of the state legislature, except as qualified by the commercial clause in the constitution of the United States, maybe said to have been assumed in The People v. The Rensselaer and Saratoga R. R. Co., (15 Wend. 131, 132;) and also in Renwick v. Morris, (3 Hill, 621.) It was asserted by the chancellor in the broadest terms, in Lansing v. Smith, (4 Wend. 10.) On page 21 he says: “In deciding upon the constitutionality of the act of 1823, (the act under which the defendants had constructed a pier, &c. which cut off or obstructed the plaintiff’s access to the Hudson river, as the owner of a wharf built on land under water, granted by the state,) it will be necessary to ascertain what were the rights of the plaintiff as against the state previous to the passage of that act. The people of this state, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the king 'by his prerogative. Through the medium of their legislature they may exercise all the powers which, previous to the revolution, could have been exercised by the king alone, or by him in conjunction with his parliament; subject only to those restrictions which have been imposed by the constitution of the state or of the United States.” What is peculiar about this case is, that the court of errors held so closely to the chancellor’s doctrine of qualified state omnipotency, that by their decision of it, they repudiated the claims of the state’s own grantee for consequential damages.

Although I do not suppose, considering the absolute omnipotency of parliament, the nature and history of our written constitutions, and the infirmities of the language in which they were necessarily expressed, that any generality as to state legislative powers, so bold and perilous as that stated by the chancellor in this case, can be uttered with the full force of judicial authority; yet the orderly administration of justice compels me to yield to the decision itself the highest respect and authority.

In Gould v. The Hudson River R. R. Co., (2 Seld. 522,) the doctrine of the chancellor in Lansing v. Smith, of the qualified omnipotency of the state legislature, was referred to and approved; and the court of appeals held that the legislature had the power to authorize the construction of the defendant's rail road along the shore of the Hudson, between high and low water mark, without compensation to individuals for consequential damage. So held against the plaintiff, •who was the owner of a farm on the bank of the river, and who alleged special damage from the construction of the road, by being thereby cut off from all access to the river, except across the road. In Wilson v. Blackbird Creek, (2 Peters, 251,) it was said, that independent of the commercial clause in the constitution of the United States, the question of the power of a state over its highways, was a question entirely between it and its citizens. This unlimited power of the state, legislature oyer the public, highways of the state, except as qualified by the constitution of the United .States, was assumed by the late Nicholas Hill throughout his argument in the Albany bridge case.

The 3d section of the turnpike act of 1807, (1 R. L. 231, 232,) and the 29 th section of the turnpike act, (1 R. S. 583,) and the 26th section of the act concerning plank and turnpike roads, passed in 1837, giving turnpike and plank road corporations a right to enter upon and take possession of any highway on appraisal of the public interest, and without making any. compensation for the fee, or for any resulting damage to individuals, assumed this unlimited power of the state legislature ; and this provision in those acts has been held to be constitutional. (Benedict v. Goit, 3 Barb. 459.)

The act of April 20th, 1818, (Davies’ Laws, 620,) providing for the closing of streets in the city of New York, implies a complete power in the legislature over those streets as highways. The act provides for compensation to owners of the estate for loss or damage by or in consequence of closing streets; but the cases on-this question of power will not permit a doubt, that the legislature had the power, at least as between it and individuals suffering consequential loss or damage, to authorize the closing of any public street or highway in the city, without providing any compensation for such consequential loss or damage.

The power to close a street, without compensation to individuals for resulting damages, certainly implies the power to qualify the public use of a street, by the construction and operation of a rail road without such compensation.

I think it may be said, that the power of the legislature to authorize the construction and operation of a rail road in a street of the city of New York, with the consent of the city corporation, without any compensation to the abutting lot owners for resulting damages, if the fee of the street was in the city corporation ; or if the fee of the street was in the abutting lot owners, and the act authorizing the construction of the' road required such fee to be taken and paid for, upon compensation to the abutting lot owners for such fee only, without compensation to them for consequential damages ; was assumed by the court of appeals, in Davis v. The Mayor &c., (14 N. Y. Rep. 506. See Judge Denio’s opinion, pp. 522, 524.) But whether assumed in that case or not, such power inevitably follows, from the cases above cited, and many others which might be cited on this question, of the power of the state legislature over public highways.

Of course it follows that the legislature has this power with the consent of the city corporation, without compensation to the abutting lot owners for consequential damages, assuming the fee of the street to be in them, if the act authorizing the construction and operation of the road does not require this fee or any estate or interest of the abutting lot owners in the street to be taken and paid for, and such new.- use of the street, being for the purpose of public travel, is consistent with the public use of such street as a highway, for which it was laid out or dedicated, and therefore will not deprive the abutting lot owners of any private property, use, or posses-^ spry right in the street.

It isjDerfectiy_settled, thatjin act or thing authorized by law, cannot bg_,gx_nuisance. (See opinion of Denio, J. in Davis v. The Mayor &c., 14 N. Y. Rep. 514, and cases there cited.) Indeed, it would be absurd to call the construction or operation of the rail road by Kerr and his associates, in pursuance of the act, a nuisance, if the legislature had the constitutional power to pass the act.

It undoubtedly.follows from, the doctrine of the unlimited power of the state legislature 07er_high ways, thafjh^legijdature has power to authorize an individual _px a corporation Jo do a thing which at common law would be a publiejmisance. however destructive it may be in its consequences Jo indixid,ual property or rights, or however inconvenient. It maypbe, to the public, without any compensation for consequential damages. Indeed, this, is only stating the doctrince in.. a hifferent form.

I have expressed the opinion, and endeavored to show, that neither the act, nor the construction of the rail road under the act, requires the taking of any private property directly; and if this is so, the question whether the privilege was granted for public use, or from public considerations, is not in the case; but if the act enjoined it as a condition, that the fee of the streets should be acquired and paid for, it is perfectly settled, that the act would not be unconstitutional because it does not provide compensation for indirect or consequential damages. (Radcliffs Ex’rs v. The Mayor &c. of Brooklyn, 4 Comst. 195. The Canandaigua and Niagara Falls R. R. Co. v. Payne, 16 Barb. 273. Hatch v. Vermont Central R. R. Co., 25 Verm. B. 49. Miffin v. Rail Road Co., 16 Penn. R. 193. Clark v. Saybrook, 21 Conn. R. 313.)

And independent of the declaration, on the face of the act, that the use of the streets authorized by it shall be deemed a public use, &c., it is, perhaps, equally well settled that the use of the streets authorized by the act must be deemed a public use. (Bloodgood v. The Mohawk and Hudson R. R. Co., 18 Wend. 9.)

I have cited the cases on the question of legislative power over highways, without any comments of my own on the theories of the state constitutions which must have led to these decisions. Such comments would be useless, and probably out of place. I have only to say that they necessarily lead to the conclusion that the legislature of this state had the constitutional power to authorize Kerr and his associates to construct and operate the rail road in question, as to the public; and also as to the private plaintiffs in this case, without any compensation to them for consequential damages, as abutting lot owners or otherwise.

\ It is hardly necessary to say that the act of the legislature, conferring on Kerr and his associates the privilege in question, cannot be held void on the ground that it creates or confers a monopoly. Many if not most of the cases above cited on the question of legislative power are cases in which the question of power arose between the grantee or grantees of a legislative monopoly, and third parties, claiming that they had been or would be injured thereby. I am not aware of any case in which an act of a state legislature has been held void on f the ground, alone, that it created or conferred a monopoly, j

The only other question to be considered in this case then is, whether the legislature had the constitutional power to authorize Kerr and his associates to construct and operate the rail road, through or upon the streets of the city, without the consent of the city corporation. The legislature, by the act, not only undertake to grant this privilege without the consent of the city authorities, but the act expressly prohibits them from doing any act 11 to hinder, delay or obstruct the construction or operation of said rail road.” The question is, whether the city corporation is protected by its charter from an act of the legislature like this.

At common law, corporations were divided into aggregate and sole; and there was another division of corporations, either aggregate or sole, into ecclesiastical and lay, and lay corporations were of two sorts, civil and eleemosynary. (1 BL Com. 469 to 472.) Civil corporations were sometimes called corporations for public government, and eleemosynary corporations, corporations for private charity; and hence it was said in the books that corporations were of two sorts, one for public government, and the other for private charity. (Fortescue’s Rep. 299. Philips v. Bury, 1 Lord Raymond, 5. S. C., 4 Mod. 106. Lord Holt’s opinion in this case, from Ms manuscript, 2 T. R. 652.) This common law distinction between corporations for public government, and for private charity, was taken not at all with reference to the power of the crown over the two sorts of corporations, or their franchises, but solely with reference to the private visitorial power or government, conceded by law, to the founder and endower of a private charitable corporation. Lord Holt (2 T. R. 352) defines these two sorts of lay corporations. He says: “And that we may the better apprehend the nature of a visitor, we are to consider that there are in law two sorts of corporations aggregate, such as are for public government and such as are for private charity. Those that are for the public government of a town, city, mystery, or the like, being for public advantage, are to be governed according to the law of the land, &c.; of these there are no private founders, and consequently no particular visitor; there are no patrons of these,” &c. He then defines a private or particular corporation for charity. It is evident that a bank or manufacturing corporation or any corporation created for the purpose of carrying on or promoting any art, or mystery, would, at common law, have come within the class arid definition of corporations for public government.

There was no such distinction between corporations, as public and private, taken with reference to the power of the crown over their charters or franchises, known to the common law. (See Hale’s Analysis of the Law, 51-54. Also authorities before cited on this point.) The king could not abolish any lay corporation, or new model it, or alter its powers without assent. (King v. Passmore, 3 T. R. 244, 246. Rex v. Vice Chancellor of Cambridge, 3 Burr. 1656.)

There was no occasion at the common law for any such division of lay coporations into public and private, either with reference to the power of the crown, or of parliament— for parliament was omnipotent; and the crown had not the power arbitrarily to abolish, take away, or alter the charter or franchises of any lay corporation. Of course a corporation could at common law forfeit its chartered franchises by misuser or nonuser: and they could be taken away by a judgment of forfeiture in a jiroper legal proceeding: ■ In Wales v. Stetson, (2 Mass. R. 146, decided in 1806,) before cited, Parsons, Oh. J. said: “We are also satisfied that the rights legally vested in this or in any corporation cannot be controlled or destroyed by any subsequent statute, unless a power for that purpose be reserved to the legislature in the act of incorporation.” In Terrett v. Taylor and others, (9 Cranch, 51, decided in 1815,) Story, J. said : “ A private corporation, created by the legislature, may lose its franchises by a misuser or a nonuser, and they may be resumed by the government under a judicial judgment upon a quo warranta to ascertain and enforce the forfeiture. This is the common law of the land, and is a tacit condition annexed to the creation of every such corporation.”

Upon a change of government, too, it may be admitted that such exclusive privileges attached to a private corporation as are inconsistent with a new government, may be abolished. “ In respect also to public corporations which exist only for public purposes, such as counties, towns, cities, &c., the legislature may, under proper limitations, have a right to change, modify, enlarge or restrain them, securing however the property for the uses of those for whom, and at whose expense, it was originally purchased.” So far as I have been able to investigate the point, this was the first judicial intimation in the United States of the reasonableness or propriety of a division of corporations into public and private, with reference to the power of the state legislatures over their charters and franchises; or of the reasonableness or propriety, if this division was to be made, of placing chartered cities in the same category as towns and counties, recognized and known as quasi corporations. What Judge Story said on this point in Terrett v. Taylor and others, was certainly said qualifiedly; but I think it may be said, nevertheless, to have been the most momentous dictum that ever came from a judge—for this division of corporations into public and private, with reference to the power of the state legislatures over their charters and franchises, was recognized in the Dartmouth College case, (4 Wheat. 638, 663, 668, 694,- decided in 1819;) and thus recommended, was adopted by the state courts—and the consequence is, that the charters, and all the governmental, or mere political franchises of cities, some of them with charters dating back long prior to the revolution, lie prostrate at the feet of the state legislatures, to be altered or modified to suit the views or purposes of a political majority

The considerations of public policy, and even of personal liberty, which might be urged against the propriety of instituting this classification of corporations, with reference to state power, I have never seen adverted to; nor havej ever "been able_to_see whyjhe charter of a city was not just as much a cqntrac_t, _as the charter of a bank, or of Dartmouth College. It is certain that Mr. Webster’s argument in the Dartmouth College case, and the common law authorities cited by him, in the main, applied with as much force to the charter of a city, as to that of Dartmouth College.

It is plain that I am right in calling the remarks which I have quoted from Justice Story’s opinion in Terrett v. Taylor and others, a dictum. What was the question in that case? The Episcopal church of Virginia, previous to the revolution, had certain lands which were confirmed to her by various statutes of the state, passed from 1776 to 1788; the legislature afterwards, by two statutes, repealed the statutes confirming the right of the church to the lands, and thus undertook to divest her of the lands. The question was, whether the repealing statutes were constitutional; and it was held that they were not. How, can it be said that the decision of this question called for what was said by Mr. Justice Story, as to the distinction between public and private corporations P It can hardly be said that the decision of the question in the Dartmouth College case, whether the charter of the college was a contract, within the meaning of the clause in the constitution of the United States declaring that no state shall make any law impairing the obligation of contracts, called for all that was said by the judges in that case, as to the distinction between public and private corporations, with reference to state power over them. But I am convinced that this distinction is now so firmlysettled by authority, and has. been so generally recognized, that it would be practically,, useless, if not considered absurd to attempt, Jyyapy constitutional theory or general reasoning, to disturb it. It only remains, therefore, to see what the doctrine is distinctly; how far it has been recognized by the courts of this state; whether it applies to the charters of the city of Hew York; and if so, how it affects the question of the power of the state legislature to pass the act in question, as between the legislature and the city corporation.

In Angell & Ames on Corporations, § 31, the distinction between public and private corporations is stated thus: “ The main distinction between public and private corporations is, that over the former the legislature, as the trustee or guardian of the public interest, has the exclusive and unrestrained control, and acting as such, as it may create, so it may modify' or destroy, as public exigency requires or recommends, or the public interest will best be subserved. Private corporations, on the other hand, are created by an act of the legislature which, in connection with its acceptance, is regarded as a compact, and one which, so long as the body corporate faithfully observes, the legislature is constitutionally restrained from impairing,” &c.; citing the Dartmouth College case, (4 Wheaton,) and a large number of other cases, decided in different states of the Union; in most, if not in all of which state cases, I think it will be found that the Dartmouth College case is cited and relied on. See 2 Kent’s Commentaries, 305, where the doctrine is stated substantially the same.

In the case of Bonaparte v. The Camden and Amboy R. R. Co., (1 Bald. Cir. Ct. R. 222,) it was said, “generally speaking, public corporations are towns, cities, counties, parishes, existing for public purposes; private corporations are for banks, insurance, roads, canals, bridges, &c., where the stock is owned by individuals, but their use may be public.” In this state the distinction between public and private corporations, with reference to the power of the state legislature over them, was recognized and applied in The People v. Morris, (13 Wend. 325.) In this case it was held that political powers conferred upon a corporation for the local government of a place, such as cities and villages, are not vested rights against the state, and may be abrogated by the legislature as well by á general law affecting the whole state, as by a special act altering the powers of the corporation. It was also held in this case, that an individual corporator cannot object to an act of the legislature altering, modifying or abrogating any power or franchise conferred by the charter upon the corporation. In this case, it was said by Nelson, J. “It is an unsound and even absurd proposition, that political power-conferred by the legislature can become a vested right as against the government in any individual or body of men. It is repugnant to the genius of our institutions,” &c. Again he says: “ Many of the English charters, incorporating cities and towns, were likewise acquired by means of an appeal either to the fears, avarice, or generosity of the crown, and like those on the continent are to be viewed, as they are in truth, in the nature of a bill of rights. It was the acquisition of so much liberty conceded by, or extorted from, a sovereign claiming nearly absolute power; and hence the idea of inviolability so generally and justly attached to them. They were constitutional charters, which the crown could not encroach upon without violating the freedom of the subject. Most if not all the leading cases in the books, involving the question of the inviolability of these charters in the English courts, arose between the prerogatives of the crown and the corporation. The right or power of parliament in England, or of the legislature here, to interfere with these bodies, created as auxiliaries to be employed in the government of the state, would present quite a different question.”

I cannot- avoid saying with diffidence, that I cannot see why a legislative encroachment upon the charter of a city is not just as much a violation of the freedom of its inhabitants, as an encroachment by the crown would have been. The violation of the freedom of the citizen or subject depends certainly upon the extent and character of the encroachment, and not upon the form or source of the power from which it c unes.

The Montgomerie charter of the city of Sew York, dated January 15, 1730, authorized the aldermen of the city, with certain other officers, to hold and keep courts of general sessions of the peace in and for the city and county of New York. The legislature, by an act passed May 14, 1840, annulled the power conferred on the aldermen of the city by the charter of 1730, to officiate as judges of the court of general sessions. This act was held to be constitutional in The People v. Purdy, (2 Hill, 31.) The court, per Bronson, J., said (p. 33) : “ The power of the legislature to alter the charters of public corporations without their consent—provided rights of property are not affected by it—cannot be doubted. Cities and villages exercise powers of government—a portion of the sovereign power of the state—within a limited district. Such privileges cannot, from their very nature, be the subject of an inalienable grant. They may be recalled at pleasure. Whether the act of 1840 was a wise or politic exercise of the legislative power, is a question with which we have nothing to do.” This case also decided, what indeed is plain, that the provision of the state constitution, that nothing contained in it “ shall annul any charters to bodies corporate and politic,” left the charters granted by the British crown, subject to the power of the staid legislature, the same as if they had been granted by the legislature, without reserving the right to repeal or alter them. This case was reversed by the court of errors, (4 Hill, 384,) but upon a ground no way affecting its authority, upon the point for which it is cited here.

The nineteenth section of the Montgomerie charter, conferred upon the corporation the office of gauger of all gaugable liquors and vessels, and of measurer of salt, grain and all measurable merchandises ; and of ■ surveyor and packer of bread, &c., with all the fees and perquisites arising therefrom. An act of the legislature was passed in 1832, regulating the measuring of grain in the city; which authorized the appointment of a measurer general, and between ten and twenty measurers by the governor and senate. The act declared that no persons except those appointed under the act should measure any grain in New York for hire or reward. This act of the legislature was declared valid by the superior court of the city, Ch. J. Jones delivering the opinion. The case is cited note 34, Kent's Char., but I do not find it reported.

Without adverting particularly to the numerous instances in which the state legislature has, particularly of late years, altered and remodeled the charter and franchises of the city, without its assent; and which have been submitted to by the city authorities, apparently without their dissent—the recognized division of corporations into public and private, with reference to legislative power; the consequent well settled doctrine that the state legislatures have full power and control over the charters and mere governmental or political franchises of cities ; and the cases last cited, relating to legislative interference with the charter of the city of New York; will not permit an escape from the cqnclusion,.that the legislature of this state has full power over the governmental or political franchisesqlthe; city of .New York. Even the Dartmouth College case concedes that the property and property franchises of public corporations are protected from legislative power. (See also Bailey v. The Mayor &c., 3 Hill, 531; Benson v. The Mayor &c., 10 Barb. 223.)

The act of the' legislature, granting to Kerr and his associates the use of the streets for the rail road, undoubtedly interferes with the full power given in the sixteenth section of the Montgomerie charter to the common council of the city, “ not only to establish, appoint, order and direct the making and laying out of all other streets, &c. not already laid out, but also the altering, amending and repairing all such streets,- &c. heretofore made or laid out, or hereafter to be made or laid out, &c., in such manner as the said common council, for the time being, or the major part of them, shall think or judge to be necessary and convenient for all inhabitants and travelers there.” This power is a franchise. I do not see that the privilege granted by the act can interfere with any other franchise or charter power of the city. The question then is, whether this power over the streets and the laying out oft-he same, can be called property, or a property franchise ?

Chancellor Kent, speaking of this grant of power over streets, says (Kent’s Char. note 31) : “ This is a grant of a public nature, without any private' interest or property or revenue connected with it, and it has always continued with the common council, subject, nevertheless, at all times, to legislative interference and direction and he refers to various acts, colonial and state, as instances of such legislative interference and direction. It is plain that this power over the streets cannot be called a property, franchise. It is a power to lay out streets and regulate them as highways, for public use.

The complaint in this case alleges that the privileges and franchises attempted by the act of the legislature to be conferred on the grantees named in it, are of great pecuniary value ; and that certain individuals named, citizens and tax payers of the city, offered and proposed to the legislature, “ in case the right of way described in said bill (the act of the legislature in question) could be legally secured to them, in the manner provided in said bill, and the opportunity and option afforded them, to pay therefor the sum of one million of dollars to the corporation of the city of New York, for the benefit of the city,” &c. • I do not see how this allegation, assuming it to be true, can affect the question whether the act interferes with any property right of the city corporation, or any other question in the case.

If the corporation had power to grant this privileged use of the streets, and had grantéd it, and received a million of dollars for it, the money would have been property; but surely such sale of the privilege would not have made the power granting it a property franchise. If the legislature had accepted the offer alleged in the complaint in this case, and the privilege had been granted to those making the offer, and the money had been paid to the city corporation, would this have made the power of legislation a property franchise ? Those asking for the favors of political or governmental power, may be very willing to pay for them; but if they do, it cannot he said that it changes the nature of the power. " •

The corporation has certain revenues as incidental to the power of licensing hackney coaches and public carriages, conferred, I believe, by the act of 1813; but this power, I suppose, ^of^^tiiejiiature^of^aJ^licejmwer, and the revenues incidental to it as such. The same remark may probably be made as to the license fees for running rail road cars, the right or practice of exacting which would seem to be acknowledged by the act in question.

In every aspect, then, of this question of the- power of the legislature to confer this privileged use' of the streets on Kerr and his associates—as to the public—:as to the private plaintiffs alleging apprehended consequential damages—as to the city corporation, claiming protection by its charter—I am not permitted, by the decisions of our courts, to escape the conclusion that the legislature had the power, without the. consent of the city, and without compensation to. the-private plaintiffsjfor conseq uenti.al damages; and that, the order-made by the .special term in this case, continuing the temporary injunciion, should therefore be reversed.

As to the order of the special term, sustaining the demurrer of the mayor &c., I concur in the conclusion of Judge Welles, that the order should be affirmed, on the ground stated by him. It may also be observed that there is no allegation in the complaint, of any fact to show that the mayor, &c. had any intention to act adversely to the rights claimed by the plaintiffs.

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Dissenting Opinion

Leonard, J.

After careful consideration, I am unable to concur with my associates in reversing the order continuing the injunction.

I disagree with the learned justice who writes the leading opinion for reversal, in holding that the coporation of the city of New York have no beneficial interest in the streets. Every new use which is not inconsistent with the original use by the public under the trust by which the title is held by the municipal corporation for a highway, belongs to the municipality, and not to the people of the state at large. The rail road track when laid makes use of a certain portion of the land constituting the street. It is a new use, which enures, pecuniarily, to the profit of the grantees, and, as a convenience, only to the advantages of the public. The corporation, with, the permission of the legislature, may construct the rail road and enjoy the profit. That right flows from and is attached to the fee of the land constituting the street, and is vested in the corporation. The right of the public in the streets of the city is for a highway only, as heretofore used and enjoyed; not for laying a rail road. It is the municipality that have paid, for the land in the streets, not the public at large.

[New York General Term, July 21, 1862.

For these reasons, and those referred to in my opinion at the special term, I am convinced that the right demanded is one which the public may not take from the municipality of the city of Hew York without payment. That the payment, when made, must go to the city treasury, for the relief of local tax payers, and not for any other public use.

I dissent from the opinion reversing the injunction order.. I concur in the order- sustaining the demurrer of the mayor, &c. of the city of Hew York to the complaint, with costs.

Order continuing injunction reversed, and order for injunction discharged. Order and judgment sustaining demurrer to complaint affirmed.

Sutherland, Leonard and Welles, Justices.]