New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-02-22


Van Buren, commenced the Argument yesterday
| by reading the affidavit Of Nicholas Dsln- Pres
| ident Of the Croton Aqueduct Department. stat
ing that the letter which was read from him 70 Mr..
Pegrew, the most important part was suppressed BE
stated in thht letter thst the Hudson River Railroad
should lie made to take up their rails below Insst
and run them along the Ninth and thence with the
Eighth. Sixth, and line along the Fourth av. th-f
there would be sufficient accommodation for the City,
but that he mentioned nor intended 10 mention r.
Also an affidavit from Mr.. James X. Whiting deny
ing that be never produced the opinion Of Mr.. sves
or the letters Of Dean and Dodge before ths Commit
tee Of Aldermen the avestg CATION Of the Broadway
Railroad
Mr. Field answered that this swearing OF Mr.. Viii
ting was to ssy that though be produced papers
be did not produce others which were il tue same
pamphlet, all were in one and was saying he read
one page Of leaf and did not read the other. The
Cour did no, consider the matter worth contend
ing about
Mr.. Van Buren, then proceeded to open the case He
contended that the adjournment Of the Board Of Al
dernt having adjourned from the 4th TO the 9Th that
the term ended and there being more than three days
between their time Of meeting, that the for that
month had virtually ceased. They, however contend
ed that the third day fell Sunday they could
have met and was not legal day and did interfere
with their term He referredto the ith Gee Of the City
Charter which said that neither the Boards could ad
ourn for more than three days with the concurrence
Of the other Board. Mr.. Van Buren, con,enied that
under this Charter, Sunday included, for Sunday
ought to be considered as such, unless far pro-
ceedngs in a Court concerned, and quoted seve
rs authorities 70 prove that statute time always incud
ed Sundays He saidthat the habit of Courts to st
till about five hundred n canon
of the church that put stop to the practice and that it
was stated in Blackstone that Lord Mansfield sat in Par
lament Sunday lie went say when the statute
intended to except Sunday and that ii should not be
counted it specially said So and that the practice Of
Congress though relied on By the other SIDE had
reference TO the time created by statute He con.
tended then, that all acts done by them for the
msinder of the month were invalid and Of no effect
The next proposition was there having been inunc
tiCn taken Out against the Board of Aldermen
preventing them from granting the lease Of the Broad
way railway 20 Jacob Sharpe and others. That this
done in dsObedience and opposition TO the order
Of court having competent jurisdiction In such
hurry were they that the Board of Aldermen passed
the resolution for railroad In Broadway the
10Th Of December 1852, that the 30h the next day.
it the Board of Assistants and passed there
and that the defendants and others accepted the at
midnight, at twenty minutes after eleven o'clock, so
great hurry were all the parties to get through with
which this done, they passed resolution condemn
ing the Judge who granted the injunction, attributed inn
proper personal and corrupt motives 10 him, and
alleged that If the proceedings of the Alderman
could be thus set aside tina, the next thing the
courts would do would be ABIDE the proceedings
Of the Legislature and upset the government In
disobeying this order the Common Council must
have acted Illegally if the court had authority TO
grant the injunction which for present purpose he
would assume they had although he would concede its
legality open question before that court, but II
9th do kaf mo
not that power, or that notwithstanding the Injunction
that the Common Council could have legally made the
grant they would have holder by defeat for be
fore they bad only commended that the Aldermen could
vote without contenpt-but not give a title--and he
would contend that long the order OF the Court 10
restrain the Aldermen proceeding in the case I'M
reversed no act of thers could be legal The parties
guilty ola misdemeanor, and could acquire
legal title by committing criminal act The deien
dants much in contempt NJ the members Of the
Corporation there sufficient proof that the par
ties knew the order restraining the Corporation from
making the grant but even If they were not apprsed OF
the fact they could not have acquired equitable title
peHd<nfC lite
Counsel then contcnded that the Common Council
had no authority to make the grant of railroad IN
Broadway in much a. they had not purchasedtheir
right ffo the property along that street. and
the way in front of lot far the property OF the
that lot that could not be taken away from
him and used for Railroad purposes without purchasing
his right and that this had right % follow the night OF
in the country, and quoted several cases among
others English cases, where II was laid down as
principle that the night OF way belonged Ia Zee 20 the
OF the adjoining ground through which this way
passed and that the sovereign had only the right of pas
sage and that the timber mines, springs or other mat
ters cOneined in ground over which this way Travelled
belonlc 10 the owner and could be used by him his
use OF them did not impede the night OF way. He then
referred iosevera In thsState and IN other States
and relied particularly on the case OF Adams against
the Saratoga aud Washington Railroad Tne remedy
which the owners had the power protect themselves,
and quoted one case in which the owner OF the fee
brUugh action against person who bad laid plank
across the road 10 enable him 20 cross gutter, and the
Court held that action could be brought and main
tanned lie then argued that the original owner OF the
right Of had IN cases brought eectments Tor
the resumption OF their rights when the property Tor
merry granted by them Tor public way had been dl-
verttd from It's original purpose by having railroad
nun over IT, and although was held an eiectment could
he Brought unless where this night OF way was inter
feTed with ct admitted that there was remedy ~
way OF trespass thus clearly recognizing the right Of fee
in the Of the adjoining property. Heaso quoted
other cases in right to maintain an eectment IN such
cases TEe act Of the Legislature Of ISIS, giving the
cores OF land in Abanyst 10 the Corporation IN THIS
CITY, and this Of the property owners contender
was not constitutional, and he quoted the opinion OF
the Court which gave the right OF the middle VI the
street TO the Of the adjoining property and gave
them also the power 10 resume the iu Ownership and
dsposal OF the land in the night Of way be az any
time discontinued He also contended that the puiang
down OF railroads putting II 10 new use, that tae
public in general could not run cars on IL nor would not
be allowed and in fact that It's whsle and cole value
derived from the fact that Il would be used excia
Judge Morris asked if the owners Of the adjoining lots
had the entire power over the right Of way was there
any decision 10 the laying down Of gas and waeT'
pipes. -, H.
Mr. Van Buren-These pipes have been lad under
ground and did not obstruc the way, and besides the
reht has been contested but allowed TO pass on
acconnt OF great public utility He then eonte1dei
that the public in general have right 10 use the gnt OF
vsy on street or road for their carriages and otAer
vehicles and Corporuiicn has right 10 permit any
thing in these streets which would tend 70 impede ts
- 4 - audit
ron lad no power by law themselves to obstruct the
vsy and could not give contract that would ensole
other parties 10 90 and that their power conssei 10
repairing and opening and Lighting the streets eal GER
tsnly could have Igbi to grant the Cneh OF an en-
tire street TO private individuals for their
exclusive use for they have this pOwer should Con-
10 them from positive legislation or Charter ~
power was also eon;raTyto the law o. the StAle "ea
- Al 10 tha rinhf In case OF LletL