The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-03-14
MORE RAILROAD NJUNCTIONs.
Thesecond Avenue Case-What Work for
the Lawyers.


SUPREME COURT-GENERAL TERM.
Before Hon. Judges Edwards, Roosevelt and Morris.
MARCH 3-Grard &uyvesamt us. Denton Pear
sail and ohrS-The plaintiff in this action brings the
complaint on behalf of himself and other owners Of
real property, situated the proposed line of Second
Avenue Railroads he states that taxes have increased
to an alarming extent within the past few years. and
that from 1916 in which the taxes were 096 9l 49,
they have increased to $3.50 ,5ll o. and that the
amount officially estimated for 1853 is So i'll 1902 g.
The argument on part OF plaintiff was opened by Mr..
motion to make the injunction restraining the gran
tees OF the line, perpetually.
1.-The digging up and breaking of portions Of the
streets, as alleged in the complaint, is Wtma fac,e
unauthorized and nuisance as 1t Mnders the null
and free enjoyment of the said streets, obstructs the
right Of passage, and endangers the safety OF pas
sengers.
l. The nuisance is public one, affecting all our
citizens who have occasion to pass over those streets
2. 1t is then the duty of the defendants to over
come this apparent right, by showing, afirmatvely
and plainly, that what they are doing is sanctioned
by the law of the land
III-If the Common Council had the power, by
resolution or otherwise to establish consent to the
establishment of railroad in the city upon any of
the streets in question: still the condition upon which
the right was given has not been complied WITH and
the resolution has taken effect The last
luton declared that before the permission should
take effect the parties named grantees should
ter into good and sufficient agreement with the
Mayor, Aldermen and Commonalty, to be drawn and
approved by the counsel to the corporation, binding
themselves to abide by and perform the stipulatons
and conditions therein contained and also such other
regulations and ordinances might be passed by the
Common Council relative to the road This agree
ment has never been entered into, inasmuch as,
l. Those only who should act in making the road,
and not all the parties, bound themselves by the
agreement which was made; aAd, 2. They only
bound, rather attempted to bind their successors,
and did not bind their proper legal representatives to
a1,,tsn
contemplated.
The mode of accepting the resolutions was fraud
as it provided for withdrawal, without the consent
of the corporation Of any one or all of the original
parties so that none OF them should be bound, ex-
cept at their own pleasure and SO that they could
transfer their rights to any one however respo
or worthless and retire with the fruits of the grant
in their pockets
w. The adjournment of the Board of Aldermen
from the fourth to the eighth day of November being
more than three days, put an end to that monthly
session OF the board and when the board met again
on the day to which they had thus adjourned it was
not legal assembly, and could do no lawful act
V. The corporation of this city has no power to
establish railroad in any Of the streets named in
the resolutions, or to carry on, in any way the bust
ness OF transporting passengers in the city, has
it any power to authorize such Railroad or to confer
upon any one an exclusive or other right to use a
particular or any portion of any Of the streets for
that purpose.
The fee of the land in the site of the streets is in
the owners Of the real property each side, ad me
dunn lum vie, subject only to the easement or right
OF way, as it now exists.
As the law presumes the fee to be in the owner of
the adjoining lands, usque ad Glun yiG those who
allege that is elsewhere must prove it, Hence the
corporation must prove as good paper title is re-
CURED in an action Of ejectment. The right of soil
in the streets was not in the corporation under the
Dutch government, or since.
z. Having nothing but an easement, or right Of
way, for all the public equally the corporation has no
right to dig in the soil for the purpose Of laying rails
and constructing railroad in the street nor can it
grant any such right to others.
8. Digging in the soil, laying rails aud construct
ing railroad in the streets is approprating the pro-
perry to new use, one exclusive in its character,
and solely for the benefit of few favored persons.
The attempt to make the grant is Of itself conclu
sve evidence that the streets to be put to new
use; else it is unnecessary. If the railroad will not
obuct the use of the street. then the owners of the
fee have right to build it themselves
4. The right of eminent domain is in the State;
and the power to exercise it for the purpose Of esab
fishing railroads in the streets has not been delegated
to the corporation, nor to any one else.
5. The land in the site Of the streets cannot be
taken for the purpose Of establishing railroad, with
out making just compensation to the owners Of the
soil.
Not single attribute of private property can be
taken away, even for public use, without full remu-
neration.
g. Even the Legislature could not authorize the
taking Of the streets for such purpose for full
compensation; the public having now good and
sufficient right Of way the passing Of act to that
effect would operate merely an arbitrary exercise
OF power, by transferring title or interest of
elusive character in the plaintiffs land to Others
z. Constructing railroad in the streets mentioned
would be an injury to the plaintiff and other land
owners, because they never dedicated the property
TO- or contemplated such use; and because the
property on both sides OF the streets would be depre
ciated in value.
8. No inference in favor Of the power assumed by
the corporation is deducbe from the laying down Of
gas and water pipes or the putting up of telegraph
poles as all these are expressly authorized by the sta
tute.
8. So the whole legislation ofthe State shows that
wherever street or highway was intended to be
given up to- or allowed to be used for any analogous
purpose, quasi public in its character compensation
must be made or the consent of the owner of the
soil first obtained.
VI.-All citizens and travellers have right to the
free and common use of the carriage-way of the
street. and every part of it, with their carts and car
rages; and the corporation has no right to grant to
others any particular exclusive of the Streets
or any part of them, to allow its grantees to use
the streets in way which is not alike common to all
Vu-The resolutions in question not law,
but q contract; and the Common Council, without
the Mayor, has no authority, by law, to make such
contracts
l. The Common Council, and the parties who take
2. But whatever they may now find it expedient to
call it, it was not command, without which there
cannot be law, but proposition for bargain; and
when accepted, it did not make law but contract,
and it was required to be evidenced by written
agreement like other contracts.
3. Contracts can only be made by the whole corpo-
ration, or the proper executive department and not
by the two Boards, without the Mayor.
VIII.-Whether the resolutions be called con-
tract or law, it processes to grant to Pearsa and
Others, property or privegesapperainin exclusive
lytO the city and such agreement cannot be made by
the two Boards without the concurrence of the May
or, as an integral part of the corporation.
l. All rights Of property, and all privileges belong
ing to the city are vested in the whole corporation
and can Of course, only be aienated by the act Of
the whole. As the two Boards constitute but part
of the corporation, they cannot make grant.
2. The Common Council has no powers except
such as are specially delegated to it; and the power
TO dispose of the property or privileges of the city
has not been delegated to that body.
3. The attempt Of the two Boards to make aena-
ton, without the concurrence of the Mayor, was a
plain usurpation of authority and could confer no
rights upon the defendants