The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-04-04
RAILROADS MTHE CITY.
pntv.nessons Ordered against the Grantee
Judge Morris Dissenting.


Judge Morris Dissenting
Supreme Court..General Term.
TEE CASE OF The BROADWAY RAILROAD.
- Hon. Judges Edwards presiding Justice) Roosevelt
and Norris on the bench
Arm 2-klAow and Others rs. jacob Sharpe AID
OsA~s-The Court densely crowded BY lawyers and
ynsn who manifested the greatest anxiety to hear the
assion Of the bench in relation to the application for
m nuncon against the grantees of the proposed rail-
nd in Broadway Judge Strong unable to attend
AID Judse Roosevelt sat- constitute the Court though
be took no part in the proceedings.
OPINION OF JUDGE EDWARDS
he plaintiffs in this aege that the street in the
ssty New York known and designated Broadway is
ancient street. which opened about one hundred
ssd through which the street for their con-
whence and by them allowed to be used by citizens
and travellers a common public street thoroughfare
They further aege that they each Of them in
e Of certain lots of great value situated the street.
and that they believe they in fee Of al the
nds in front of their lots to the centre of the street.
subject only to the easement right of way the
same and they also slege that they taxpayers to
large amount BY reason OF their ownership OF this and
other property the city They then state that previous
10 the presenting of their complaint the Boards of Alder
and Assistant Aldermen of the city in opposition to
fhs veto Of the Mayor violation the injunction
Of the highest local court passed resolution by which
ants to law a double track for railway in broadway,
and Whitehall State street. from the South ferry to
Fifty ninth street. and thereafter to continue the same
from time TO time, along the Bloomngdale road to Man
hatanve There were certain conditions attached to
this grant which it is not now necessary to aude
and there certain allegations contained in the
complaint rs to the circumstances under which Tie
authority and permission were granted which it
will be necessary TO consider hereafter The plain
tids then insist and contend that the Mayor
Aldermen and Commonalty of the city, have right
BY their charter, or conferred upon them by the Les
ktare TO authorize the railroad in question They fur
way both in reference TO its width and its for gene
Tal purposes street the proposed railway track if
permitted to be used the defendants intend it,
win become nuisance. They also contend that the
right to the street in the proposed only
power Of Re State by virtue Of the right
eminent domain, and that it would be necessary, $
condition precedent to the exercise of such authority
10 make compensation to the owners of the adjoining
property And finally they contend that the grant TO
The defendants has been corrupty and illegally made
won't the grant from being carried into effect conceive
that the question the general power of the Corpo
city has already been settled case of Drake VS.
DE Hudson River Railroad Company & Barb. 52s). As
have already understood that case, there two
questions distinctly passed upon and decided by the
Court First that a railway in city is not per
ration Of the city Of New York has the power and right to
authorize the Of its streets for that purpose twas
fstinguishable from that because in that case the
gislature had by its charter to the Railroad COMPANY
Be Observed that this authority is nsde to depend entire
upon the assent of the Mayor, Aldermen, and common
atty Of the city The corporate right as an ar tdcia
tenoe receive the benefit of the permss
thus Gwen is =. that, that was granted BY the STATE The
The Long Island Railroad Company 40 Barb POP it
held that the corporation of the city of Brooklyn whose
corporation Of this city, had the right to authorize rail
road company to tunnel public street for the purpose
Ihs Saratoga and washington Railroad COMPANY ,' III
Barb 414 similar power was recognized in the win sge
schenectady Railroad Company, 10 Barb 1907 In each
q these cases the recipient Of the right thing granted
Soa sSs rg y af Sna the
Ovsn BY the city village corporation by virtue of it's
general over its streets The next ground
which the plaintiffs claim that the laying and using of
the railway track in quest viii be illegal is, that it
Vim be nuisance has been already seen, it was set
lied IN the above cited that railway in city is
not neces sarily nuisance But doubt that
under certain circumstances it might become for
example, a railway with double track should be laid
down in Of the streets of this city,
which are, even now, inadequate to the public wants
pube use would necessarily be impaired if not entirely
sbstructed The plaintiffs contend that this is also
nat the facts in the papers before us warrant
sach conclusion. And seems to that will
rather viii say, that there cegtantay that it
would not be used in such way materially to impair
and obstruct the public right Of passage and re passage
would not be sufficient to authorize the interference of
% II s that ass to e
ference Of the Court that they are owners OF the fee to
he centre Of the street subject only to the public right
way until compensation is first made to them. The
grounds which they claim the ownership of the fee
are that they seized in fee of the lots adjoining the
street. and they contend that from this fact the law
inphes their ownership ad medium fum rae, aud that
burden of proving the contrary upon the de-
eenAAnts The defendants the other hand have in
PRODUCED affidavit of dis singushed member OF the
bar, Who ii appears, has been employed by the
Evaporation, and for some time past has been
saged in preparing digest Of the ancient re-
cords, in reference to the title of the Corporation
10 the streets of the city. This affidavit is, to
considerable extent, argumenative, and consists of
the facts stated sworn to be true upon information
and belief Assuming all the facts stated to be true
Zee of the lands Broadway above Wall street is vested
m the Corporation Of the city Neither am prepared
T. to different conclusion On the contrary after
aSareful reading Of the affidavit and after hearing the
statement made by the venerable and learned counsel
whe argued this motion the part of the defendants it
would only be upon the most thorough that
would the conclusion that the fee Of the streets
= not vested in the Corporation for manifold reasons,
think that it ought to bem trust however, for the
public benefits all the streets laid and opened
snder the act Of 1913, are. But with the view which
s adjudication to determine who the owner of the fee
he counsel for the plaintiffs referred in their argu-
ent to the numerous decisions which have been made
ing owner 70 the soil in public highway. There is
doubt that according to the ancient Of the
mon law, which, as far as am aware, has always been
adopted in this State the public have other right in
highway in the country than that Of passage and
aee and that any interference with the soil other than
sueh be regarded necessary to the enjoyment
Of this right will be considered trespass and action
pincpe that the trustees Of the Presbyterian Society in
Waterloo The Auburn and Rochester Railroad Copa
ny, e Hill $751; decided But there is wide diff
ference between highway in the country and street in
poPulous commercial city The for the restrict
Cd Of highways in the country has BEEN that they
have been needed for other purposes but
HE with streets in city. There certain
TO which, in modern times the latter have generally
been applied These not merely conducive to,
but they have become almost necessary Tor the comfort
health and prosperity Of the public They have been
sanctioned BY CUSTOM and approved by experience BY
the Dongan charter the then existing streets within the
city expressly granted to the corporation together
With the power of laying out such streets in future
might be needful and convenient aud the general
Of the Streets SUCH has always been vested in the
corporation, the protector and of the pub
Ne right for the common benefit of all These
streets for years been used for the constuc
ton OF sewers and for the laying Of water and pipes
and has seriously questioned the right of the
city to authorize their for such purposes and ad
joining owner, as far as am aware pretended to