The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-01-21

which cars can be drawn by two horses The rail
laid, In accordance with the provisions of the said
resolution being even with the pavement, and having
groove not exceeding an inch in width will, In my
opinion, offer no impediment or Inconvenience to
any ordinary vehicle passing on Broadway, there
being no wheels used on common light carriages less
than an inch wide, and most Of them being an inch
and quarter wide, except light racing wagons and
sulkeys In the judgment OF this depOnent, having
regard to the number of passengers seeking convey
ance on Broadway, and the number OF vehicles now
crOwdng there, the substitution OF cars under this
resolution, for omnibuses, will be certain relief to
EDWIN SMITH.
Sworn, January Is, 1858, before me- VIII. Stog-
dill, Commissioner of Deeds
CITY and County Of New York Charles Turner,
of said city, being duly sworn, doth depose and say,
that he is the Deputy Street Commissioner Of city,
and has been SO for three years last past that he is
generally cognizant of the titles of the corporation of
the citysOf New York to the streets in said city, that
as he has always understood and believes the fee of
the whole of Broadway is in the corporation of said
city that the said corporation, from the time that
this deponen first went into said office to the present
time has had possession Of and exercised the owner
ship in fee of the whole of said street That 1t is the
invarable practice of the Of lots fronting on
said street. who dig under the street. to apply to the
corporation authorities, by whom PERMISSION IS, IN
proper cases. granted for that purpose andupon the
payment of consideration for such permission and,
further that no pipes suffered TO be laid in said
street, without permit granted from the said au-
mission Of the corporation Of said city, pipes have at
various times been laid in said street, to wit, the
Manhattan water pipes, Crot0n water pipes, and
the gas pipes and that the right of the said corpora
ton to grant withhold such permission has always
been claimed, and never denied, to the knowledge,
information or belief of this deponent and further
saith not. CHAs. TURNER, Dep. Street Com.
Sworn to before me, this 18th day OF January 1853
NJ. g. Hart, Commissioner Of Deeds
Here follows a carefully prepared abstract of the
title of the corporation to the land embraced in
Broadway, made by Murray Hoffman, Esq, and verl-
fed by his affidavit. This abstract establishes the
clear and unquestionable title in fee Of the city to
every foot of land in Broadway. The claim OF title
is perfect from the first colonial grant in 1885, to the
present time. As the conclusions Of the abstract are
the only portions of the document in which the pub
lie are interested, it is deemed unnecessary to inser
it at length
City and County of Nc,c York:-.John Anderson
being sworn, saith, that he was one OF the origi-
nal applicants for the Broadway Railway, and is one
of the present associates. In the Board Of Aldermen,
the matter was referred to special committee, be-
fore whom public discussion took place, which lasted
nearly month, and, in the course OF the discussion,
the following opinions of the Counsel to the Corpora
ton of the President OF the CrOtOn Aqueduct Depart
ment, of the late Street Commissioner and of for
mer Comptroller of the city, were produced before
the committee the part OF the remonstrants against
the Grant. JOHN ANDERSON.
W. II. Sparks, Commissioner OF Deeds
OPINION OF HENRY E. DAVIES, ESQ.,, COUNSEL TO THE
CORPORATION, AND OTHERS, IN REFERENCE TO THE
POWERS OF THE CORPORATION IN ESTABLISHING
CITY RAILROADS.
NEW YORK. March 3, 1851.
ASSISTANT ALDERMAN THOMAS j. BARR
Dear Sir-In answer to the questions submitted to
me in your note of the 9th ult., have the honor
to state: That the first question propounded has
torily answered afirmatively, in the decision
of the Supreme Court of this district, in the of
Drake and others vs.. the Hudson River Railroad
Company. (See document No. 10 of Board Of Alder
was fully discussed by eminent counsel and
thoroughly examined by the court, whose decision
accompanied by learned and elaborate opinion.
The reasons Of the court upon this point are deemed
to be perfectly conclusive and the question may be
considered set at rest The court say, (see p 2lS
of said document) railroads of recent introduce
ton; but their great and acknowledged advantages
over all other modes Of travel and land carriage
have gained for them popularity which has brought
them into extensive use, and IS constantly yet FUR
Their extending their adoption. The actual existence
of them in other cities, and the example OF the Har
lem Railroad in city, which has been i'll sue
cessful operation for several years, under our own
eyes, conclusiyely show that the use OF them in the
streets OF city, II properly guarded and regulated
is perfectly compatible with the trusts Of public
streets, and the simultaneous use of those streets
by other carriages and vehicles, and for all
the purposes to which public streets are dedicated
In reference to the second question, do not find
ton to establish and maintain railroads, and the de-
csion of the Court of Appeals in the case OF Hastead
VIZ. The Mayor &c, of New York, g Comstock's Re.
ports page 1907 settles the question, that municipal
eOrJOratiOns can exercise power contract any
obligations not authorized by law. TO satisfactorily
answer your third question, it will be necessary to
briefly inquire into the nature and extent OF the pro-
perry in the public streets vested in the corporation
OF this city, under its general powers. and how far
it is consistent with such power to exact bonus
general compensation for the grant of the privilege
to use such streets in particular manner, and il
upon such examination the authority is not found TO
justify such exaction, whether under the special sta
tutes of the Legislature relating to the OF the
streets by public vehicles, rail cars may be cassed
as to be subject to their provisions 1t should
be observed at the outset, that where it
was attempted or designed in any Of the
charters Of the city to grant any right of
privilege for the private benefit or eolument Of the
corporation OF the city, the language employed for
that purpose has been as clear, explicit, and unmis-
taxable, in its character that adopted the usual
cOnveyances of real estates from one individual to
another BY the charter Of 1870, 'the rents, issues
profits fees, and other advantages Arising and ac-
cruing from the ferries then established, and to be
thereafter established around New York island were
granted to the Mayor, Aldermen and Commonalty
of the City OF New York, and their successors for
ever to have take hold and enjoy the same to their
own use, without being accountable for the same, or
any part thereof BY similar grant the corpora
ton hold the public markets. the wharves piers and
slips Of the city, and other important rights and pri
vileges affecting the public interests, and they are
vested in the city as free from legislative other in
reference, as the fee of land in private owner,
was fully established in the recent attempt, on
the part of the Legislature, to wrest from the
city its vested rights in relation tothe ferries in
the East river. Now, the language used in the charter
in relation to the public streets, is Of a very
different character. 1t is, that "the Common
Council shall have the power to establish, direct lay
out, alter, repair and amend Streets lanes alleys
highways, water courees and bridges, throughout the
city and island Of Manhattan, in such manner us
the said Common Council for the time being or
major part of them shall think judge to be neces
sary and convenient for all the inhabitants and ira
veers there" Without occupying any space with
reasoning to show that this grant to establish, &c.
the public streets for the convenience and necessi
ties Of the inhabitants and travellers of the city, con
fei1ed upon the corporation private property,
right to derive therefrom it will be sufficient
to quote the language of Chancellor Kent upon this
subject In his treatise upon the powers of the corpora