#### Hugh V. Roddy, Jr., Plaintiff, v. The Brooklyn Heights Railroad Co. et al., Defendants. Valentine Schmidt, Plaintiff, *v.*The Brooklyn City *&*Newtown Railroad Co. et al., Defendants.

(Supreme Court, Kings Special Term,

April, 1898.)

Street surface railroads — When organized before 1874 they may contract for mutual use of their tracks without obtaining the consents required, since 1874 by the Constitution — Effect of Laws of 1839, chap. 318.

Street surface railroad corporations, incorporated before 1874 and since operated by themselves or lessees, have a right, under section 78 of the Railroad Law of 1890 .as .amended (the same' constituting a substantial re-enactment of chapter 218 of the Laws, of 1839, not affected by the repeal of the act of >1839 itself) to contract iyith *374another street railroad corporation “ for the use of their respective roads and routes or ¡any part thereof ” without first obtaining the consents required by the Constitutional Amendment of 18T4 and by the Constitution of 1894, as those provisions were designed to act prospectively only and cannot divest a right which had already vested under the act of 1839, as re-enacted in the Railroad Law.

■Motion in each action for an injunction *pendente lite.*Facts appear in opinion.

Morris *&*Whitehouse, for plaintiffs.

Chas. A. Collin, William C. Trull and Wm. N. Dykman, for defendants.

Maddox, J.

A motion is made by .the plaintiff in each action for an injunction *pendente lite, i. e.,*in the Roddy case to enjoin the operation 'by the Heights' company of its cars, upon the tracks of the Newtown company on Washington street in front of the abutting premises of that plaintiff, and in the Schmidt case to restrain the operation by the Newtown company and by the Coney Island company of their cars upon the tracks of the Heights company, on Fulton street in front of the abutting property of Schmidt, upon the ground that the constitutional and statutory conditions, now in force, not having been complied with, such operation is-unlawful and an invasion of plaintiffs’ rights.

The defendants are domestic street surface railroad corporations ■operating their cars by the overhead -trolley system.

The Newtown company and the Coney Island company were organized, respectively, in May and December, 1860, under the General Railroad Law of 1860 (chap. 140), and the Heights company was incorporated in 1887, under the General Railroad Law of 1884 (chap. 252).

The Heights company acquired, as lessee, under a lease made in 1893, the railroads, franchises, property and rights of the Brooklyn City Railroad Company, a domestic street surface railroad corporation organized, in December, 1853, under the General Railroad Law of 1850 (chap. 140), and has since June, 1893, maintained and operated such roads, including the double-track road on Fulton street, in front of Schmidt’s property, and also that on Sands street in front of the Brooklyn Bridge entrance.

*375. Said roads on Fulton and Sands streets, joining at the junction of those streets, had been previously constructed and operated by the said Brooklyn Oity Railroad Company, pursuant to chapter 77 of the Laws of 1854, from about 1854 until the lease thereof to the Heights company in 1893.

The. Newtown company constructed its Washington street route about 1872, pursuant to chapter 165 of the Laws of 1872, and maintained and operated the same until 1897, when it leased its railroads, franchises, property and rights to the C'oney Island company, which latter company has since operated the same, including the double-track road on Washington street, in front of Roddy’s property, to and crossing Sands street at the Bridge entrance.

In 1897, these defendants and the Nassau Railroad Company, also a domestic street surface railroad corporation, by contracts with the bridge trustees, acquired the right to run and operate some of their cars, for the transportation' of passengers between the boroughs of Manhattan and Brooklyn, upon and over the roadways of the bridge, using the northerly roadway in going to the borough of Manhattan and the southerly roadway in returning to Brooklyn, such cars entering and leaving the respective roadways at their intersection with Sands .street, and the only tracks connecting with such roadways are the Sands street tracks of the Heights company, which connect with both, and the Newtown company’s tracks on Washington street, connecting by a switch or siding with the northerly roadway only.

The defendants, prior to the commencement of these actions and before the Newtown company’s lease to the Goney Island company, by contract agreed upon a plan for the operation of their cars in crossing the bridge and, among other things, that the Heights company shall have the use of the Washington street tracks,of the New-town company, in front of Roddy’s property, and the right to ope" rate thereon, its bridge-crossing cars bound for the borough of Manhattan, thereby connecting with the northerly roadway of the bridge, and the Newtown and the Coney Island companies to have the use of ,the Fulton street tracks of the Heights company, in front of Schmidt’s premises, and the right to operate thereon their bridge-crossing cars returning from the borough of- Manhattan.

It is that right to use the tracks of another company and to operate cars thereon, without first obtaining the consents of the municipal authorities and of the abutting property owners, of in lieu of the property owners’ consents the approval of the Supreme *376Court, that the plaintiffs challenge and the same questions we presented on both motions. '

Chapter 140 of the Laws of 1850 required the consents of a majority of the abutting property owners to the construction of a railroad in cities, but no question has been raised here as to the right of the defendants to operate their cars on their respective roads.

• The tracks are on those streets, and we must assume, in view of the length of time the. respective roads have been so operated and the fact that the construction thereof was prior,to the constitutional amendment of 1874, in the absence of some proof to th\e contrary, that the statutory requirements operative at the time of such construction have been complied with.

By chapter 218 of the Laws of 1839 it was-enacted that “ It shall be lawful for. iany railroad corporation to- contract with' any other railroad corporation for the use of their respective roads and thereafter to use the same in such manner as may be prescribed in such contract,” and that act was not amended and remained unrepealed until 1890 (chap. 565, § 180), When its pro-visions were re-enacted in section 78 o-f the Railroad Law (chap. 565), which as,since amended (chap. 676, Laws 1892; chap. 4-33, Laws 1893), now provides that “ any railroad corporation or any corporation owning or operating any railroad or railroad route within this state may contract with any other such corporation for the use of their respective roads -or routes, or any. part thereof, and thereafter use the' same in such manner and for such time as may be prescribed in such contract,” the- words *or any part thereof*having been added by .the amendment of 1892.

. The language *any railroad corporation*comprehends all, and hence the act of 1839 applied, and section 78 of the Railroad Law ■ of 1890, as amended, applies, to street surface railroad companies People v. O’Brien, 111 N. Y. 64.

Railroad corporations have only such powers ás are expressly or impliedly given by law, and the act of 1839 conferred the right to" exercise an additional power, one not theretofore possessed,'since it gave capacity to contract for the use of the- road, and hence the right to enter into a lease or a traffic agreement involving such use:

Chapter 252 of the Laws o-f 1884, section .15, authorized any ' street surface railroad corporation to le'ase or transfer, to any other such company, the- right to- run upon or 'use any portion of its tracks, prohibiting, however, any such lease' by one -company 'to another owning or operating a parallel road thereto, in cities of • *377over 300,000 population, and the act of 1884 did not repeal chapter 218 of the Laws of 1839. People v. O’Brien, 111 N. Y. 65.

The power so to contract under the act of 1839 pertained to the franchise, since it related to the use of the road, the tracks, and it bears, indeed, as close relation to the franchise as the right to sell, to mortgage or to lease, all of which are elements of property.

The re-enactment of the provisions of the act of 1839 in section 78 of the Railroad Law of 1890, “ the provisions * * * being substantially the same,” must “be construed as a continuation of such law, and not as a new enactment,” notwithstanding the repeal thereof by section 180 of the Railroad Law of 1890, for such is the legislative declaration. Railroad Law, chap. 565; Laws 1890, § 182; General Corporation Law, chap. 687; Laws 1892, § 36; Statutory Construction Law, chap. 677, Laws 1892, § 32, as amended by chap. 448, Laws 1894.

But the repeal thereof, even'if such re-enactment in section 78 did not operate as a .continuation of the prior statute, cannot avail the plaintiffs, since the right to so contract, conferred by the act of 1839, was an accrued and an acquired right of the defendants, and it has been expressly enacted that such repeal “ shall not affect or impair * * * any * * * right * * * accrued or acquired,- * * "x" but the same may be asserted, enforced * * * ■ as fully and to the same extent as if such law had not been repealed.” Railroad Law, chap. 565, Laws of 1890, § 181; General Corporation Law, chap. 687, Laws 1892, § 31; Statutory Construction Law, chap. 677, Laws 1892, § 31.

Such right to contract foil the use of their respective roads was, therefore, preserved in these defendants. People ex rel. Standard G. L. Co. v. Gilroy, 67 Hun, 323.

The contention of plaintiffs’ counsel, that section 78 of the Railroad Law applied'to railroad corporations other than street surface companies, is, I think, without force. That section is la part of article III, which relates to the “ consolidation, lease, sale and reorganization ” of railroad corporations and, after a careful reading of all sections embraced in that article, I have been unable to find any language indicative of an intention that the provisions thereof were not to lapply to and govern all, including street sur-1 face companies.

Concededly, then, the fright, the power and the authority of the defendants to contract for the use of their respective roads, or of any part thereof, still exists, unless such right, power and authority *378have been destroyed or diminished by the constitutional amendment of 1874, or by the;Constitution of 1894.

The amendment of 1874 provided that “ no law shall authorize the construction or operation of a street railroad, except Upon the condition ” that the required consents be first obtained, and that, provision was incorporated in the Constitution of 1894 (art. Ill, § 18) in the same language.

The constitutional and statutory conditions, in force since Janu-i ary 1, 1875, undoubtedly apply to the operation, as well as to the construction of a street railroad,, for the language is disjunctive, but ho property rights were disturbed or impaired by that amendment of 1874, hor by the Constitution of 1894..

The law (chapter 218, Laws of 1839) had, however, previously, authorized contracts by railroad corporations for the use ,of their respective roads, which of necessity carried with, it the right to operate cars over a road then in operation, and there % no • constitutional or statutory inhibition against such use as is contemplated by the act of 1839, and section 78 of the Railroad Law.

The constitutional amendment of 1874 and the Constitution of 1894 were future limitations upon-the legislative power; they operated prospectively and were not retroactive in effect. . Matter of Gilbert E. R. Co., 70 N. Y. 361; People v. Brooklyn, F. & C. I. R. R. Co., 89 id. 85; Am. *&*Eng. Ency. of Law (2d ed.), vol. 6, p. 917.

They destroyed no then existing right of these defendants nor did they diminish the power conferred by the act of 1839, to contract for the use of their respective roads, for, as was held in People v. Brooklyn, F. & C. I. R. R. Co., *supra,*the prohibition invoked is one against future legislation,- and has no reference to previously existing laws.” '

The decision in the Colonial C. T. Co. v. Kingston R. R. Co., 153 N. Y. 540, is not, in my opinion, decisive of these motions.' The. main question presented here, the right of railroad corporations to contract for the use of their respective roads or of some part.thereof, and. thereafter to use the ¡same, to operate cam thereon, was not before the court in that case.

There plaintiff sought to acquire, *in invitum,*by condemnation proceedings, the right to use a portion of the defendants’ road and thereby connect the two sections of its road. The plaintiff had not -obtained the consents of the local authorities and of the abutting property owners to the operátion of its road on that portion.of the *379street on which was the road -it sought to acquire the use of, and hence did not have “ sufficient vitality and strength to go on with and to construct a railroad.” * * * Matter of Rochester E. R. Co., 123 N. Y. 358.

It is now well settled, that in condemnation proceedings the plaintiff must, as a condition precedent, ¡establish ,a clear legal right to exercise the lights, powers or privileges sought to be acquired thereby, and the learned judge, writing the opinion in the Kingston case, on the motion for a reargument (154 N. Y. 495), said: “ The prohibition of the Railroad Law is absolute so far as the plaintiff, proceeding *in invitwm,*is concerned, and does not depend upon what the defendant might have the power to voluntarily agree to.”

And it was also said, in that case (page 495): “ It was not our intention to decide any case but the one before us, which simply involved the standing of the plaintiff to make the application in question, and our opinion should be read in the light of that purpose. * * * A judicial opinion, like evidence, is only binding so far 'as it is relevant, and when it wanders from the point at issue it no longer has force as an official utterance.”

Consequently the main question -here was not passed upon in that case, nor was section 78 of the Railroad Law (Laws 1890, chap. 565) considered.

Eor the reasons above stated, my conclusion is, the right of the defendants so to contract for the use of their respective roads and to operate cars thereon was a vested right, not dependent for vitality or authority upon any law enacted since the constitutional amendment of 1874 and the exercise of that right is not violative of any constitutional provision. People v. Brooklyn, F. & C. I. R. R. Co., *supra;*Ingersoll v. Nassau E. R. R. Co., 89 Hun, 213; Kunz v. Brooklyn Heights R. R. Co., MSS. opinion of Mr. Justice W. M. Smith.

The motions are, therefore, denied.

Motions denied.