The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-04-23
THE BROADWAY RAILROAD INJUNCTION CASE.
Opinion OF Judge Strong.
SUPREME COURr-aHNERAL TERM.

F Opinion OF Judge Strong.
SUPREME COURr-aRNERAL TERM.
The following is the opinien Of Judge Strong in
the case Of the application for injunction against
the grantees Of the Broadway Railroad
JOHN hILHAU AND OTHERS AGAINST JACOB SHARP
AND OTHERS
Judge Strong said-The plaintiffs allege that the
resolutions OF the Common Council Of the city OF
New York purporting to authorize the construction
OF railroad in Broadway are void and ask that the
defendants may be restrained by an injunction from
this Court from entering into or upon that street,
for the purpose Of laying establishing railroad
thereon, and from digging up or subverting the soil,
doing any other act in such street tending to en-
cumber the same, or lto) obstruct the free and
common use thereof the same has been heretofore
enjoyed" The objections which have been advanced
against the resolutions are numerous and have been
discussed by the distinguished counsel for both par
ties with much zeal and great ability. shall state
the conclusions which have adopted on such OF the
points raised as deem material, and intend to do
but little more, as have neither the time nor the
inclination to elaborate an opinion. 1t has been
commended that the Common Council has not the
power to authorize the construction of any railroad
in the city. The charter from Governor Dongan
"gives grants, ratifes, and confirms, to the corpo
ration, all and every the streets lanes, highways aud
alleys within the city, for the public use and service
of the mayor aldermen, and commonalty OF the said
city, and Of the inhabitants of Manhattan Island,
and travellers there and coners power to establish,
appoint order and direct the establishing making, lay
ing out ordering. amending and repairing the same
cessary ,needfu and tor the inhabitants and
travellers and passengers" The only limitation or
restriction of this grant is contained in and con-
ssts merely Of pro Vision for the protection OF pr-
vate rights. The charter from Governor Montgo-
merle raties and confirms this delegation Of power.
Chancellor Kent remarks, in his notes and illustri
tions prepared at the request of the Common Coun-
Gil, (page 1881 that The charter powers (relative
confirmed, defined enforced, and specially applied
by legislative acts that there seems to be want Of
jurisdiction from the one source or the other for every
exigency" The Common Council has certainly
very liberal discretion to amending the streets,
and may, in the exercise OF it, authorize the
construction OF a railway, If that is deemed to
be an amendment. | know Of no limitation
except that imposed by the charter for the
ways implied in public grant: that there shall be
no perversion of the main object for which it was
made. As to private rights, it does not appear very
clearly that any such could be affected by railroad
granted on proper terms at all. The plaintiffs al
lege that they propretors of lots the westerly
side of Broadway, and that they verify believe that
they are the owners in Tee OF all the lands in front
OF their respective buildings to the centre OF that
street. Now when party asks for relief, on the
ground Of threatened injury to his property, he is
bound to his title in positive terms. That les
should lie, within his own knowledge and if that
is not sufficient to warrant direct and unqualified
averment, it cannot justify the interposition of this
Court. We are bound to act and especially in SO
important matter restraining parties from the
enjoyment of their apparent rights, upon facts and
cannot proceed upon mere belief. But II the plain
ts have the ultimate fee to the land opposite their
respective lots to the middle OF the street. it by no
means follows that their proprietary rights will be
invaded or their property taken by the construction
OF the proposed railway Their title Is subject to the
public right to use it as city streets The public
has acquired the privilege of using it as full pass
way. There was no restriction to any existing or
other method of travel when the land was dedicated
to, or taken by, the public The purpose was gene
ro1 and uftpian tlx arnhr
Of locomotion which any individual or the public
might choose to adopt. A railway furnishes new
facilities for travelling, and is designed solely for
that purpose. There is no diversion to any purpose
other than that for which the land taken nor is
the land which the rails are laid rendered less va
liable to the proprietor Of the fee. He sustans no
direct injury II the value OF the adjoining lots IS
impaired, that is consequential injury resulting
from public improvement, and for that the law
gives no compensation. When, therefore the public
has acquired the right to use the land as street,
and merely subjects it to new and improved method
of travelling the proprietor Of the nominal fee loses
no property, and the constitutional guaranty is
not invaded. Ii railway furnishes an improved
means of travel, it cannot be inconsistent with
the object for which the street was obtained
but rather harmonizes with, and promotes it,
unless, indeed, it should exclude the inhabi-
.auSs vT <hv city and travellers there" from the
free and appropriate use OF the pass way, or should
In some way constitute nuisance. The rails should,
undoubtedly, be so laid not to obstruct the free
passage OF the street, and were assured upon the
argument, and no fact was stated to the contrary
that the resolutions III question contained provisions
which, II fully carried out would ettectuay prevent
any obstruction That they will not necessarily inn
pair the passage in any other manner is evident
from the fact that rails laid in other streets in the
city have not been productive Of any Inconvenience
1t mas been supposed by many that railroad in city
orpopulous village was necessarily public nuisance
whether the cars on it were drawn by horses or by
locomotives propelled by steam. The Supreme Court
OF this State has frequently decided otherwise. In
fhn nf unntr CT fhn D.s1~N
Company, which was recently before me, had occa.
sion to examine this question very fully, and came to
the conclusion not only that the authorities too
strong to be got over, but that they were right.
There may be circumstances which would render
railway and the travel upon it very injurious, and
possibly nuisance, in some localities, but they do
not exist in this case. From the statements con-
tanned in the report Of the majority of the commit
tee OF the Common Council which is an exceedingly
well written document am satisfied that the pro-
posed railroad would not be q nuisance, but would
on the contrary, be great relief to Broadway.
have no doubt of the power of the Common Council
to authorize its construction in proper aud
upon proper terms. Ii my opinion on this point
should need confirmation, it would have it from the
circumstance that the principal opponents OF the
existing ordinance, who were propretOrs of stores
and dweling-houses on Broadway, and men OF much
intelligence, who had the ability to, and no doubt
did, obtain the best legal advice themselves applied
to the Common Council for grant of a similar pri-
vllege, but upon terms more oner0us, and which
would have required from them an immediate and
extensive appropriation of money.
The principal objections to the resolutions, and
those entitled to the most consideration, resulted
from the circumstances attending their adoption
and their terms.
1t was contended, on the argument, that the ad-
journment OF the Board OF Aldermen from the fourth
to the eighth day of November, being for more than
three days. put end to that monthly session of the
Board, Cat which the resolutions in question were
adopted,) and that when the Board subsequently
met, in pursuance Of the adjournment, it was not
legal assembly, and could do no valid act. 1t is pro-
vided by the fourth section Of the act Of April 2,
1S49, that Neither Board shall adjourn for longer
period than three days except BY resolution to be
concurred in by the other body The seventh of
November last was Sunday, and, if that Isl to be
counted, the adjournment Of the Board OF Aldermen
from the fourth to the eighth Of that month was for
more than three days, and, being made without the
concurrence Of the Board Of Assistants was unau-
thorzed In the construction Of statutory provision
relative to the time prescribed for any purpose Sun
day is sometimes included and sometimes not. The
inclusion or exclusion depends upon what is to be