The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-26

4
for the purpose of constructing tunnel for their rai
road accustomed temporary obstruction OF the use OF 1t
| tn to bring this action even if the ultimate
| fee OF the land in HIM BY the terms OF their
charter the defendants hada right construct their road
upon street but they we're required to restore
the street to its former state, 10 sufficient manner
not 10 have impaired its usefulness Claws Of 1884 p
442, 1877 They had reasonable time within which 70
build their road and repair the street To allow street
in city village to he used for railroad track either
upon its natural surface by tunneng is not misap
preparation OF it, provided such does interfere
with the free and unobstruucted Of it by the public
a highway for passage and repassage plant '. the
Long Island Railroad Company 10 Barb 20 ) C., 9 N.
\. Legal Observer 90 Hudson and Delaware Canal Co.,
York and Harlem Railroad Co. id. III. The same doe
trine is asserted in Drake Hudson River Railroad Co,
Barb. b0S II wss not shown that the street viii be
destroyed materially injured by the railroad and tunnel
after they shall have been completed II is matter OF
noorety that railroads pass through all great cities,
and many OF villages without essential Injury to the
right Of passage by persons Individuals residing
in the street must sustain temporary inconvenience
absence of negligence and aness the DEFENDANTS
are not responsible. 1t is Of dasf dbsqie iHjtid
Much less therefore, can the original proprietor who
does not reside in the street. the grant and re-
woke the dedication for this cause.
Now if the Court please, what escape is there from
the question which we have hitherto been consider
ing.from the conclusion that the Common Council
OF this city had the right to permit this railroad to
bel laid in Broadway, and that the laying of the
railroad in that street is not unlawful or that the
inhabitants Of the street, the occupants the houses
IL
derstand the argument of the opening counsel, two
exceptions were stated to the application Of these
authorities to the present case one applicable to the
case OF Drake against the Hudson River Railroad
Company solely, and the other applicable to them
all. The one application to the Hudson River Rail
road Company was that in that case it did not ap-
pear that Drake the owner of the soi-of the le
gal title in the land of the street. If the Court will
examine that case they will perceive that no great
stress is laid upon that circumstance and that in
opinion, except the one delivered by the Judge who
first gave his Judgment, is the circumstance referred
to as at all entering into the question. He was
resident upon the street, and, as it was con-
tended suffered all the inconvenience that
could follow from the exercise of such power
The doctrine laid down in the case is generally that
the corporation have the right-that the Common
Council have the right-t0 authorize these railroads
to be laid down in the public streets and that they
may rghtully be laid down and used there, so long
they do not interfere materially with the use of
the street by other persons for legitimate purposes
The other exception-for the exception l have just
mentioned only applies to that particular case-the
other exception, it is said
| Mr.. VAN BuREN-It appliesto all.
| Ex. Chief Justice JoNEs-The other exception is,
that in all these railroads had been established
incorporated by the Legislature and that the Legis
lature had referred to the corporation to give this
permission Now if the Court please in this view Of
their act referred to TIE Common Council Of the ctv
for their consent to railroad being laid out
in the public streets, is the strongest argu-
ment to show that the corporation conceived
that they had that power, and that it rested with
them; and they, having powers to regulate, manage
and govern the streets that they had right to au-
thorze it or withhold that authorization if they
please is, therefore, recognition, on the part Of
the Legislature, Of such right in the corporation;
it is the city Council and the Legislature only that
can authorize the laying down Of railroad in the
public streets OF city, and that they have full power
Hudson River Railroad Company, the first Act did
not authorize them to enter into the city at all but
the second Act that gave them that permission,
and then only subject to the assent Of the local Le
refuse regularly rested. The Act vests this company
with nothing but the franchise They cannot lay
the railroad anywhere and receive profits, and re-
ceye compensation, and take tolls, without an act
of the Legislature to authorize them to do 30; and
the only purpose Of the Act of the Legislature to
vest these parties with right to use such vehicle,
and to demand passage money nom passen-
You you 40 to use hs raos sh Without
| charging others with the money for carriage.
| Any man can make railroad where he pleases, If
he can acquire the ground over which 1t is to rum
without any charter for the purpose, provided he
rides in it himself alone, takes persons in it for
| nothing. It is franchise that authorises him to
take the toll, and that makes it necessary for the
legislature to authorize the using Of the way or the
And, consequently all that these acts Of the Lcgis-
lature did to confer upon the company that fran
chse and the power to take the land where the land
/
! right of the eminent domain in acquiring the land
which the railroad was to pass by making COM
pensaton to the owners but did not touch or inter-
fere with the right Of passing over the streets That
was the right vested in the corporation with which
the Legislature had nothing to do. Again, If am
correctly informed in the Harlem Railroad charter
the Legislature expressly Yin granting them the pr
vlege in making the railroad from Harlem to TWEEN
third street. in the first place, and afterwards to
| Fourteenth street, and afterwards throughout all
parts Of the citythey expressly in granting them this
license, state remember the phraseology correctly,
that they must apply to the corporation, who may
grant or refuse them the privilege; thus showing
that the Legislature considered the whole subject OF
the right to the street vested in the corpora
tion and in them solely. And, also, in the case Of
the Washington and Saratoga Railroad, IL under
stand the matter, the act there gave them power
to make the tunnel for which action in that case
was brought and that that depended solely upon the
assent of the village Of Whitehall, through which
the tunnel was constructed. The third proposition
for which we contend is, that the Common Council,
possessing the right to make this road, they have
regularly made grant OF IT. i have already re-
ferred the Court to the resolution ITSELF which was
adopted by that body and shown the Court, think,
that that was simply license from the corporation
to these persons TO use Broadway by laying in it a
double track for the purpose OF enabling the passage
upon that track of railroad for the conveyance
and carriage Of passengers. The objections taken
70 the regularity the operations Of that licenses and
leading one is, that this is grant Of interest
in Broadway which the corporation incompetent
to make. That will more properly belong to that part
Of the subject presently TO be considered. The first
objection in point of form, and in question Of order,
whchlsppes to it, is, that there was no assent Of
Mayor to the passage Of the resolution. 1t is true,
that the Mayor did not give his consent in
the passage of that resolution; but does this in any
way impair the validity of that act OF the corpora.
toni | would refer the Court to the second amend
ed charter on this point, for do not propose to
spend much time in The discussion Of it. The char
ter Of 1880 declares that the legislative power Of the
corporation shall be vested in Board Of Aldermen
and Board of Assistant Aldermen, who together,
shall form the Common Council Of the city. Now,
here the Court will perceive there was very mate.
rial variance made between the amended charter and
the charter it originally Stood granted by Don
gan, and confirmed by Montgomere. In the first
charter, the Aldermen, Assistant Aldermen and
Mayer, acted conformity; but this amended charter
discovered them, and it makes the Common Council to
consist Of the Aldermen and Assistant Aldermen only
and meeting in two Boards, and deprives the Mayor