The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1849-11-20
Supreme Court.
IMPORTANT RAILROAD GENERALIZATION AGAINST
THE HUDSON RIVER ROAD.
Rafor Iiidn Iosiaa md EduarI

Supreme Court, by certain citizens OF New York,
prevent and stop the Hudson Railroad Company from
laying down its rails In certain streets Of the city Of
On Saturday. E. Sanford Esq pursued and CONT.
nued his argument in behalf OF the applicants. The
following is synopsis Of his able and powerful argu
ment:-
LIST point-The Legislature, in enacting the charter
Of the defendants, conferred franchise upon q
private corporation and they had no constitutional
power to authorize private property to be taken with
out the consent OF the owners Tor the use OF such
corporation even upon making full compensation.
I'd point The Legislature had not power, under the
constitution to delegate to the endsntsa pri
vate corporation any part OF the sovereign power of
the people OF this State to be exercised by the deen
dants at their discretion and for their benefit
The Legislature have not declared what lands shall be
appropriated the Of the defendants
any public officers political agents organs of the
sovereign power to exercise the sovereign discrsion
but have lett the appropriation to be made by private
corporation, acting upon the rres ponsible judgment
Of its agents. to what lands necessary for
the of their road. No power to authorize them
to take lands in fee 2 No pswer to authorize them
to take materials
Cd point If the defendants have by their charter,
conferred upon them right private
for the Of their railroad such property only
be taken by them upon paying just compensation.
4th point Such ompensatsn must be made by the
defendants before the land be taken by them for
the Of their road and before any work be done
thereupon towards the construction thereof.
9th pointBy the charter of the defendants they
required to make compensation for all land, real
tate and property taken possession OF ana used for the
construction and mainteRa of their railroad,
which may DO affected by any operation connected
with such construction and maintenance
7th point-The plaintiffs have interest in the
lands taken by the defendants in laying down their
railroad track upon portions of Hudson street and
Canal street. and respectively the owners Of other
lands fronting upon said streets which iuuriousy
affected by the construction and maintenance of said
read upon said streets
18th point-It is necessary to establish the claim
OF the plaintiffs to damages in this to show tnat
the plaintiffs either OF them tenants OF tho fee
hold, OF legal owners OF the land upon which the de-
PENDANTS about to lay their iron rails II others
be the Of the land facing the parts of Hudson
street and Canal street. the plaintiffs own lots 'front.'
ing thereon, and have interest in and right of
sage over these lands for the purposes Of their bust
ness, COW eniepce pleasure. This right Is in.
corporeal and for the particular injury
to this right and the lots of land owned by them
spectvely, the plaintiffs were entitled to have compen
satiou made to them before the proceeded
TO lay down their rails IL IL sufficient that they have
eome interest, which will be paired by the defen
dsnts work, TO give them right to compensation.
9Th point-The use which the defendants design TO
make the streets in question is wholly inconsistent
with the purposes and objects of their original deca
ration. The plaintiffs have paid a full consideration
for the right the enjoy of these streets
full extent Of their dimensions respectively, rs orgi
nally laid out, aud in the accustomed manaer.~They
have right TO the OF this Court restrain
of said streets for purposes other than those
originally intended aud which will impair the and
enjoyment thereof by the plaintiffs
9th pointIn considering the questions Of the rights
Of the plaintiffs aud the damages they will suffer
the acts OF the defendants the cannot eutsr upon
the question whether any public benefits may arise
from the defendants work, which might tend Go
teIbaapce the Inconvenience and Injury It will pro.
ducs. be violation OF the rights Of the plaintiffs and
the injury to their property cannot be compensated
nor by any benefit which uo.her portion Of
the public may derive from the extension OF the rail-
way of the d.fe ndants.
10th pointThe enclosing OF portions Of Canal street
and Hudson etreet within the rails TO be laid by tina
defendants and the permanent occupation thereof by
the rails so laid, will constitute Parntstre; aud
the injury inconvenience and annoyance theretrom,
and from the which Intended 20 be lie thereof
by TIE oefe udauts will constitute nuisance. From
the injuries which will be sustained by the plain tns
therefrom, they entitled TO Injunction.
llth point-Under tho charter Of the defendants
they Alone can apply for appointment Of commissioners
pany does not affect or impair any OF the PLANTING
remedies by sctien.
18th point.-rhe Defendants had no power under
their charter 90 locate their roads upon the streets in
question. without first obtaining the assent Of the
poraon Of the city Of New YORK TO such location; such
assent has not been obtained The paintifs' rights
win be invaded aud their property Injured by the ile
gal and Unauthorized proceedings Of the defendants
and they are Therefore entitled 70 an injunction.
when Mr.. SANFORD had concluded, Charles O'Conor
Rsq followed In reply behalf the railroad company
aud had not concluded his remarks at three o'clock
when the court Adjourned
Nov. 10 MIR. OCOSon resumed his argument In OPP
position to the motion, AID contsDded that he had
shown IL az the motion dercd napplcabe, by this
which defendants ha1 presented to the court and
that the objection TO the proceedings Of this railway
that where the Fat bar Is laid IL s com pefey above the
stone; and when the Tat bar IL not laid but more
elevated rail- 1t Is brought level with the adjacent
stores To certain txsnt, this part Of the road is
made convenient for railway carriages than
other kind Of vehicle but they regulated in such
to render them passable by every mode OF ira
yelling. Counsel contrpded that this railroad could
not 10 any sense be regarded ~ nuiance and cited
decisions in CbanceIy in the teeth OF witch author
ties he would AK would this court step in and pro-
noubce them a. nuissnce. IL Is conceded that ndi
yduas may erect lamp but to say that because
lam posts ancient constructions, they cannot be
considered nuisaDces and that because these railways
a modern improvement they not to se permit
ted IL unreasonable except where. the whole they
are detrment al to the common veal The court would
view the matter with the OF egsstors aud though
Recommendation ia considerabis can II be considered
that these railroads Of such character that th-
adjacent proprietOrs have claim for compensation
He submitted not ia railroad IL constructed as 20
be irj ury, action at law would lay 81 they are
In the habit Of doing anything luxurious they might be
restrained But that railroads In themselves per
ncious u cannot be maintained Counsel referred 20
Sth Denhsm and ether authurties) As q the sh
dayt II one ofthe witnesses Tor the p.n that his
business suffers because Of the oxtenon Of the railway
further into the city II Is perfectly ridiculous (sai
Bsrnwei and Cresssell page i0J IL IL, to certain
lie and dOes involve the violation of private right
the erection OF an intoerabe nuisance. 20 Bsrnwe
and Cressrell 5o6) These eases contain governing
regulated 70 admit the introduction q every
shall declare not to be. In It's swn character, a
nuisance. and he susceptible q being introduced
into the highway. He cannot anticipate shadow of
argument by shich that will be attempted 70 be shosn
IL IL not contepd.d that carriages propelled by steam
intended TO be used this rsdWay " Tor car
riages something larger than omnibusses 10 Is not In
tended that any long number Of carriage constituting
train are ever used each carriage has horseA and
when man s desirouso Of crossing the street foot
track without difficulty danger not 90 as 20 the
omnibus which .. liable TO be upon him at any part or
Ia any place While the railway carriage H. passing
certainly other vehicle occupy its place. bat
that may be said OF omnibus or anything -lsa; u
may be ssd Of a man he moves along no other man
occupy the particular space he occupies at the
moment Counsel then referred 20 the bill II
plant page as, where persons unite IN an
affidavit in page az there 40 persons aud In page
81, twenty one persons united In a1arts making in
all 1xty.eight persons, u seems these amlsyts were
fuTnisbed by travelling commissioncr, who went
around the town with bible In his pocket, and pro-
cured the name Of every man he could get to swear
the principal qualification OF there persons i that they
in the habit Of going through Hudson street and
Wet street and not Of them H. perhaps known to
this court. Who IL John Brsary and James Rodgers,
who makes his mark (Laughter) who one Of them
H. cannot tell here three krowles taken from
one family, all crowded into this aiidavit getuog
sxty eight Opponents Of this character cannot give
any enlightenment Co this court for hey could doubt
less get Elk hundred and sixty eight q the same char.
sctsr aud In the tsme way. In page 5p they have
eleven deponents, Isaac Valentine and others, al
butchers At the market at the foot Of Canal street be-
csu,e II will carry the business Of the market dosn
rcm them Then they have the testimony ON pages ~
J.O aud AZ here they the opinion that II u