The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-25
In some degree, under those IDEAS, on what other.

es In some degree under those IDEAS on what other
wise would be part of the public street. But in
modern times this use has been continued. Now the
pipes are laid under the surface Of your streets in a
dections one system for distributing water and the
other for distributing gas, and one of these is laid by
the public itself and the other by companies orga-
nxed for the purpose and acting under license from
the corporation So, too, what Is more common than
for every building that comes up to make application
TO the corporation for permission to use certain
portion Of the street during the time that the
building is in course OF erection; and thIs Is
uniformly granted, by license from the Com
mon Council, to those who apply for 1t.
Was it heard Of that individual citizens had the
right, under the circumstances to institute suits for
what they chose to call annoyances nom these neces
sary operations upon the public streets? So, again,
under the late system Of rapid communication from
place to place. you have the telegraph and its poles
standing in every direction all over the city, directly
in the streets. BY whose authority do they stand
there? BY that of the corporation Can any indi-
vidal opposite to whose door of these telegraph
poles should be placed by the authority OF the Com
mon Council order it to be cut down because it is
thing not within the scope of the to which the
streets were to be applied? Under the idea Of NUS
ance, if any of these things become nuisance, then
the ctzenhas Lis remedy, either by his private suit
by interpostion of the public authority through
the Attorney General But the Court will find if
they will examine this question of nuisance that the
books hold that the public streets or public highways
used by the public authorities for such purposes
at these, and in some cases by private individuals,
legitimate of the street amounts to nuisance,
they cannot be invaded by private individual. Now
it seems to me- that under these views OF the subject
It'll impossible to resist the conclusion that in of
the views indicated by Mr. Hoffman, in his affidavit
before this Court and who has given untiring atten
ton to the subject, and who has been many years
engaged in investigating it and collecting testimony
and facts to support the opinions he airms that the
whole legal estate in every part Of Broadway has, in
some Of these ways, become vested in the corpora
ton Of the city Of New York, as trustees for the
public Of the streets Of the city and that upon no
other theory we sustain the corporation in the
uninterrupted use Of these Streets for all these pur
poses, for nearly two centuries In no other way
could the Common Council properly, efectualy and
streets are vested in them put underther control
Is not the whole regulation and government Of the
streets vested in the corporation! DO they not hold
the power, given them by the charter, to direct,
order and control these streets exclusive any other
power? In addition to the power granted in the
charter itself-which have always supposed, and
which Judge Kent in his notes plainly intimates was
in itself sufficient to invest the corporation with all
and maintenance of these streets, for greater
caution-this corporation has repeatedly ap-
piled to the Legislature, and they have armed
them with additional and express authority in
various points, and, among Others that of authorz-
ing and licensing hackney coaches believe that is
found under the 22d section of the act for reducing
the laws Of the city Of New York into one act The
Court will see by this that the Legislature conferred
of the city, in these cases to regulate hackney coaches
or carriages and the owners and drivers thereof &c.
There various other powers granted to the cor
poration by different acts of the Legislature refer
to that particularly because it is of the author
ties under which, the Court will perceive, the act
which has been done in the present instance. and
which is complained Of, will properly arrange itself
refer the Court now, upon this whole subject of the
meaning of these sections of the two charters and of
the act of the Legislature supplemental to them to
the comments of Chancellor Kent upon the subject
It will be found in this volume at page 236, and is
note on tue section in the Montgomere charter MAX
ing grant of the power to control and manage
these streets to the Common Council He says
{" This is grant Of public nature without any pri
vate interest," property or revenue connected with
it, and it has always continued with the Com
mon Council, under free and active exercise
subject nevertheless at all times to Legislative inter-
ference and direction The Legislature interferes
with the power in their discretion, and think there
can be question as to the right OF the Legislature
to do So the power is not exclusive in the corpor
alton nor rrevocable in the nature Of the grant
Of private right" That is the explanation, if the
Court please of the power OF the corporation for which
we contend; and it seems to be entirely msunder-
stood when we are charged with an attempt to make
any grant any contract, here, in relation to the
substantial interests Of this corporation as cOrpo
rate body. The Common Council have asserted no
claim to make any such arrangement or contract
with these parties or to vest in them any such ine-
rest, and they have made no claim to tine right or
possession OF any such interest. 1t is power which
mon Council therefore, exert it consistently with le
gislative directions and in other cases. where the
statute law is silent-that is in all cases wherever
it becomes necessary to exert any power over the
the nature of the franchise itself, the and pur
pose for which the street is intended, for which it
was purchased by the public, or conceded by the
individual there the corporation though the statute
may give chem no power, has right from the char
ter itself-from the broad and expansive power-to
order and direct the use and management OF these
streets, and to do with them what the public inte
rest in their Judgment, may require; They cannot
divert them from the purpose for which they were
intended. They cannot sell them to individuals in
fee simple. They cannot erect dwelling houses upon
them from which they are to derive rent; but they
can order and direct them for any purpose or any
use which shall tend to the benefit and advantage of
the city, which is not incompatible to the use of
them for the travelling and common purposes of the
citizens. These are the powers they possess-these
are the powers we contend for, and those are the
only powers which the Common Council attempt to
exercise here. Chancellor Kent goes on to say
The statute laws not intended to alter or control
Except in the given case the charter the points but
the object is generally TO give additional specific and
subsidiary relief and the corporation have frequently
applied for legislative authority and have preferred to
exercise he power under that sanction though the gene
raj terms Of the charter gave it to them.
And further he says
The statute powers have become so ample 20 various
and full of direction that the charter power
be in great measure absorbed and lost in the new
statute powers but whenever and wherever the statute
In the given instance the Common Council can always
resort to the failing powers under the charter,
which gives broad and large authority to
every
These, if the Court please, constitute the author-
ties under which this Common Council has acted in
giving the license that this resolution purp0rts to
give-a permission to this company, to Jacob Sharp
and Others to lay these rails in Broadway. Has not
if the Court please the exercise Of these powers been
recognized and sanctioned by the courts of justice OF
the State and by this very Court in many instances!
hot hoe a
resolution itself, which is annexed to the COM
plaint-
Resolved That Jacob Sharp and others and those who
may for the time being be associated with them all Of
whom herein desg mated associates of the Broadway
Railway, have the authority and consent of the Common
Council to lay double track for railway in Broadway
and Whitehall State street from the South ferry to
Fifty ninth street and also hereafter to continue the
same from time 10 time, along the Bloomngdae road
Manhattanyile which continuation they shall be
CURED time TO time make whenever directed by
the Common Council the said grant Of permission and