The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-26
PIE BROADWAY RAILROAD CASE.
srurenae Court.
ARGUMENT OF Ex-oHIEF JUSTICE JONES on BEHALF
aF THE GRANTFEs

BEFORE Judges Edwards, Morris and Strong.
FEB. 23.-John Milhau and others vs. Jaeoo
Bx1Chef Justice JoNEs-Most certainly, sir;
that is the only view which can be taken OF ~ anu y
h upon the same footing by which every rslToau
company in this city holds its powers ., -,
Mr. VAN BUREN-But the Common Councn nave
entered into an obligation TO PAT down .nese raio
Ex-Chiet Justice JoNEs-Ihe 0oihmoh oouuen
have made no such obligation; they have no power
To make one They have given nothing but Il
cense 10 put down these rails, and there IS no time
designated or specified III they are under an ooli-
cation they equally under al obligation TO con-
tpue il during the lifetime Of these parties as they
are for single day. 1t is of the very essence Of all
these privileges that were granted. Every privilege
that citizen holds under these powers OF the corpo
Taten 70 give licenses permissions, Is held in the
same way. 1t is true that the Common Council is a
reasonable body-that il is body which always acts
upon considerations that are addressed to their I'M
dcrstandings-and that, as long as such an insttu
ton shall continue to the public benefit and public
good, and be sanctioned by public opinion, the cor
pOraton probably would not lnterfere but let public
Opinion pronounce against il an annoyance and as
serious evil and my word for it, every rail in the
city would be taken up. The Harlem RAILROAD and
NE Hudson River Railroad hold under the same foot
ing exactly; and the Court will perceive, in all in
stances where they made these grants they never
specified the time; they make no grants that shall
continue for year, for month, or for an hour; and
the people who take them, take them upon the con-
6dence that should they be viewed and considered
~ . beneft-they would have such popularity that
NO Common Council would dare to interfere with
them. But they hold them at the breath Of the
Common Council, and may say at the breath Of the
people. Now, this is grant. The gentleman on the
Sher side has just said that the corporation is under
IN obligation. Where is it? They authorize and
permit this road to be laid down. but do they author
ne it to be continued They authorize and permit
the hackney coaches to drive and yet we Know that
every day their licenses are taken from them. It IS
the very nature Of license that II Is revocabe at the
pleasure of the party granting 1t, or otherwise IT be-
comes, the gentleman denominated it, contract.
sh0uld like very much to know what remedy these
parties would have if the next Common Council were
elected, next year, to revoke this whole grant
Judge MoRRIs-That was the case i'll the street
sweeping matter.
Ex-Chief Justice JoNEs-Yes sir. And the case
Of Drake vs. the Hudson River Railroad Company,
which has been referred to, was, believe substan-
tally the first where this question really came
IN all its breadth and latitude before the court and
the court gave all the attention which they had the
power to give it at the time. will refer the Court
h that case, to the opinion of Mr.. Justice Edwards
which embraces, in substance the views taken by
The court upon this subject THE first ground"
Judge Edwards says upon which the plaintiffs
i that the State had not the legal power to delegate
= the defendants the right to take and use the
property Of individuals in the construction Of rail-
read Then, at page $50, he says 1T has been
held, both in this State and in other States of the
Union, that railroad is not, per Sc, nuisance
And, let me observe here, that the same question
was before Judge Strong, in the case Of the Long
Island Railroad, a portion of that road being laid
through the village of Hampstead Judge Edwards
aoes on-"The use of q street for railroad consists
merely in adapting its surface to particular mode
Of conveyance" That we perfectly well un-
derstand; and oil that is done here. all the
nee that these parties contemplate, in making
NE railroad in Broadway, Is to adapt the centre
parts Of it's surface to the use of a carriage for
be conveyance Of passengers. They contemplate
NO other use of the way than that And Judge Ed
wards very properly expresses in this case: 'and
when so adapted, the running of railroad car is no
more an exclusive appropriation OF the street than
The running OF any other species Of conveyance would
BE-" That applies however to another part of the
argument of the other side: that license to lay a
railroad in the street. and railroad is mono
POLY; but if that is monopoly, have yet to learn
what the true Specification of the term monopoly"
h. The Judge goes on"If the additional facilities
or passage and repassage which railroad furnishes
viii have the effect of increasing the Of the
erect, and thus some inconvenience to persons
Homg business or residing in its neighborhood, yet
Vas opened and laid out. right of any person will
be violated" ask the Court to look at that. Do
we contemplate to divert any part Of Broadway TO
any other purpose than that for which it was opened
and for which, ever since it has been opened, con.
SANITY used Neither will there be any infringe.
ment Of private rights if the track itself should
slight change in the surface of the street. provided
be passage is free and unobstructed."
Judge SrR0NG-Suppose the grant to be consum-
mated, and the rails laid down, could not private
person, unconnected with the company, put car
upon these rails and drive it.
Ex-Chief Justice JoNEs-That is question sir to
which have bestowed attention; but have here
1ofore said without meaning it TO be understood that
Kgave an opinion upon it, that saw nothing to pre-
want it.
Mr.. FIELD-There can be no public vehicle with
out q license; but whether private one could do
this is another question.
ExChief Justice JONES' have not considered
NAT question sufficiently bearing upon the subject
We have now before us to bestow any attention upon
II but have said, that, if person using carriage
which he is authorised to use. should take the track
q this railroad, see nothing TO prevent him. For
instance if individual should see t to build car
rage, for his own accommodation. the wheels Of
which should exactly correspond with the rails laid
down by this company, he might put his carriage
wheels upon that track and ride along it; but ap-
pfehend that that question will be settled when a
person sees fit to construct such q carriage. If
the corporation cannot license carriage to that
effect by reason of such objection, it follows that
You can never use q railway in the city, and
therefore we cannot have the benefit of that
modern improvement at all, because, from its
own nature it is exclusive, and you must have
stand the affdavits upon the part Of the PLAINTIFF
u it set up here, or pretended that you cannot cross
from side to side at portions Of these rails. Indeed
cannot be contended for an instant for we have
railroad in this city, which has been in operation
now fourteen or fifteen years, which is, think the
Harlem Railroad, which conveys vast numbers Of
passengers from Harlem to the Park directly
through the Bowery Centre street, part of Grand
street, and part Of Broome street. Now, if the
Court please, here is an experiment actually made
there any obstruction to the use of that street by
other Carriages Are not omnibuses running there
continually, and do they not cross the track in
every direction, with perfect facility
Judge STRoNG-supposing an omnibus was on the
street. Immediately in front Of car, have you
right to turn it off? Have you right to stop the
ears coming down the street; or IL there any power
in the corporation that omnbuses and other vehicles
shall not obstruct the passage of the cars
Ex-Chief Justice JoSEs-A case of that kind has,
apprehend sir, never occurred; and since the long
period that the railroad has been laid ont there has
been no collison-at least from the first year, when
there opposition made to the Of the road by
the cars. There never could be collisions and none
could arise unless it be from the perverseness OF
the individual ; and then it would be settled as
every other question would be settled between two
persons using the road, and the one attempting TO
annoy the other or prevent the free OF II by the
other. II such regulations were not made, obst
nate carman could interfere with the passage Of the