52 N.J. Eq. 31 | New York Court of Chancery | 1893
The complainant, the West Jersey Railroad Company, was constructed in virtue of the authority conferred by its charter, approved February 5th, 1853 (P. L. of 1858 p. 39), through what is now the city of Woodbury, in the county of Gloucester, crossing, at grade, a public road now known as Cooper street, in that city.
The complainant’s charter did not give it express authority to construct its railroad across that highway. The authority for that purpose was had by implication from the charter’s establishment of the termini of the road, to join which it was necessary to construct the proposed railway across existing highways.
Immediately south of Cooper street the complainant secured a site for a depot and car-yard, which bounds some two hundred
The defendant, the Camden, Gloucester and Woodbury Railway Company, was incorporated for the purpose of constructing, maintaining and operating a street railway for the public use, under the provisions of the statute entitled “An act to authorize the formation of traction companies for the construction and operation of street railways or railroads operated as street railways, and to regulate the same,” approved March 14th, 1893: (P. L. of 1893 p. SOU), and is now engaged in the construction of a street railway through Cooper street, which it intends to operate by means of electric motors supplied with electricity from overhead wires supported by poles planted in the outer edge of the sidewalks of the street, just within the curb, a suitable distance apart. That railway will pass the complainant’s depot and cross its tracks which are laid over Cooper street. Four of the poles will be erected upon the complainant’s land, within the lines of Cooper street, but in such position that, so far as now appears, they will not interfere with the passage of light or air from the street or hinder the complainant’s free access to and from its property. Nor will they do appreciable injury to the sidewalks or works of any kind which the complainant has constructed in Cooper street. They will not interfere with the complainant’s railway tracks which cross Cooper street. The overhead wires will be erected twenty feet above the surface of the highway and will not obstruct the passage of the complainant’s trains.
It does not appear that the defendant will operate its railway with cars of unusual size, or in trains or in any manner not now customary in the operation of street railways where the motive power is electricity supplied by means of overhead wires, according to that which is known as the trolley system.
The complainant seeks to sustain the injunction it has obtained as a protection against the invasion of its property rights, which, under the constitution, cannot be appropriated by the street railway without authority of law and upon compensation.
The rights which it deems to be threatened arise from its-
The ownership of the fee in the soil in the public street is subordinate to the public use thereof for the purposes of a highway. That use is an easement of passage by everyone over the highway and every part of it, by any means which will not subr stantially and permanently exclude anyone from the enjoyment of that common right. The means by which such use is to be lawfully had cannot be particularly defined, because, as suggested by Vice-Chancellor Van Fleet, in Halsey v. Rapid Transit Street Railway Co., 3 Dick. Ch. Rep. 380, they will be as numerous as the improvements of the age and new wants, arising out of an increase in population or an enlargement of business, may render necessary.
It has been repeatedly declared by the courts of this state that the use of the public easement of a highway by a horse railway is a lawful servitude, and therefore is not a new burden of the soil for which compensation must be made to the owner, the reason being that it is a convenient and beneficial means of passage to the public, which does not prevent the accustomed use of the highway by others. On the contrary, it so accommodates and facilitates that use that it more than compensates for the slight inconvenience that its rails and the necessity of permitting it to have the right of way over ordinary vehicles occasions. It is a means of use which stands in marked distinction from the steam railway (though the difference is only in degree), whose raised rails, noise, speed and accompanying danger have led the •courts to declare it to be incompatible with the common use of the highway, and therefore an additional servitude, for which the owner of the soil must be compensated. Citizens’ Coach Co. v. Camden Horse Railroad Co., 6 Stew. Eq. 267.
The electric street railway, as now ordinarily in use by cars patterned in style and size after the horse railway car, stands, as a means of using a highway, in degree between the horse and the steam railways. As in case of the horse railway, its rails do •not materially interfere with the ordinary use of the highway.
Basing their conclusions upon the contemplation of the customary use of the electric street railway, the courts have regarded that, as operated by the trolley system, it is not an additional burden upon the soil in the common highway. Halsey v. Rapid Transit Street Railway Co., supra; Taggart v. Newport Street Railway Co., 16 R. I. 668; Detroit City Railway Co. v. Mills, 85 Mich. 634; Lockhart v. Craig Street Railway Co., 139 Pa. St. 419; Hudson River Telephone Co. v. Watervliet Turnpike and Railroad Co., 135 N. Y. 398, 407; Mount Adam's and Eden Park Inclined Railway Co. v. Winslow, 3 Ohio C. C. 425. The first cited of these cases is the utterance of this court.
- But it is a work of - supererogation, at this time; to treat thi's question as more than an unsettled and doubtful one. - 'It is at
But it is urged that the poles, planted within the curb lines of the sidewalk, to support the overhead wires, are at least an invasion of private property.
The sidewalks are parts of the highway, subject to the public easement. They are set apart, principally, for use by pedestrians. They are defined by the curb lines, beyond which vehicles may not go, and at which, experience has taught, lamp, hitching and awniug-posts, shade-trees and the like may be planted without inconvenience either to pedestrians or vehicles. At that place the lamp-post, which provides a .means to light the highway, and thus facilitate its use, has not been regarded as an additional burden upon the soil, and, upon similar consideration, it becomes difficult to perceive why the poles, which accommodate a convenient use of the highway by a street railway, are to be regarded differently. It is to be remembered, however, that the abutting land-owner ordinarily has something more of property than the ownership of the mere fee of the soil, in the sidewalk. By the laws and usages of the state, the sidewalk has, in a degree, been regarded as an appendage to and a part of the premises abutting upon it, and as so essential to the beneficial use of such premises that its improvement is properly imposed upon the owner of the abutting land. Halsey v. Rapid Transit Street Railway Co., supra; Agens v. Newark, 8 Vr. 415; Weller v. McCormick, 18 Vr. 397. It follows that, if such improvement of the sidewalk or constructions under it, which the landowner shall lawfully make in pursuance of his duty to the public or for his own private convenience, be expensive in character, so that substantial damage will result to him from the planting of the trolley poles, a serious question will arise whether there will not be a taking of his property for which he must be compen
Another consideration borne in mind is that the abutting property-owner has the right of ingress to and egress from his property by means of the street, in a manner which will accord with the lawful purposes to which he devotes his property, and also to a reasonably available way through the highway to the several stories of his building in cases of emergencies like fire. He also has the right to light and air from the highway. And he cannot be deprived of either of'these rights by the placing of poles or erection of wires without compensation being made to him. Paterson Railway Co. v. Grundy, 6 Dick. Ch. Rep. 213, 223. No question touching these rights is presented at this time.
Upon the subject of the rights thus far considered, the supreme court of this state, in the recent case of State, Roebling, pros., v. Board of Public Works of the City of Trenton, 29 Atl. Rep. 149, which was presented in shape of an application to vacate the stay of proceedings incident to the issuance of a writ of certiorari for the review of an ordinance purporting to grant the right to erect a trolley road in front of the prosecutors, in granting the motion declared as follows :
“ 1. It is doubtful whether the prosecutors, as abutting owners, have in the street any right which is violated by the erection and maintenance of trolley poles and wires in front of their premises, under legislative authority.”
Passing to the status of the complainant as the owner of the railroad authorized to cross the street, I there also fail to find an invasion of any right.
Its right to cross Cooper street is precisely that which was considered by Vice-Chancellor Van Fleet, in Lehigh Valley Railroad Co. v. The Orange Water Co., 15 Stew. Eq. 205, where he said : “ "Where a right to cross or occupy a public highway is granted by implication, the corporation can occupy only so
Nor do I perceive any tenable objection to the suspension of the trolley wire over the railroad crossing at a sufficient height. In the present instance it is not suggested that the elevation intended will be insufficient to permit the proper operation of the complainant’s road.
It is insisted that the defendant has not strictly complied with, the statute to obtain the right to lay its rails and operate its cars in Cooper street.
In absence of any attempt upon the part of the defendant to
If that which the defendant proposes to do will not work some special damage to the complainant, differing in kind from the damage which the complainant will suffer in common with all other members- of the community, it has no standing to ask for injunction merely because the defendant proceeds ultra vires. Remedies to restrain, abate or punish a public nuisance are to be invoked by the public officials who are charged with duty in that respect (Township of Raritan v. Port Reading Railroad Co., supra), and not a mere volunteer who is without special cause of complaint. Van Wagenen v. Cooney, 18 Stew. Eq. 25.
The injunction will be dissolved, with costs.