The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-25


rests the power TO Go any act whatever in respect to
this street that is not simply and purely act OF
| travel, according TO the old accustomed mode OF
travelling in the streets OF the city OF New York and
that any act beyond that is trespass; and il IN
dersand the counsel upon the other side correctly,
they have right to IN trespass or bring an eject
ment, 10 recover the property as being taken out OF
their possession. Another ground 49, that Wherever
the legal estate resides the streets hell by whom
they held, public trust, for the use o.
all the citizens in the city of New ork ana al ira
vellers desiring 10 use them; and IN mat proposuo
properly put and properly understood accord lot
| make no pretence of claim TO an interest IN THESE
streets on the part of the corporation that should a
thorze them either to sell or IN any way dispose OF
them or allow them to other than the legitimate uses
for which they were established They assert further,
that the corporation have no power ever, by their
charter or by statute TO authorize or license araroad
to be laid down in any OF the streets OF the city:
and that as respects this particular railroad il they
had the power OF legislation at all 1t is not the result OF
legislation but that it is a mere contract or grant
made entered into by the corporation OF the city
OF New York with Jacob Sharp and others, for
the transfer from the corporation OF the city to
Jacob Sharp OF some interest or some right which
he has the power of claiming adversely to the
corporation. this be not So then cannot understand
what is the meaning Of 'by contract, or .by grant,
but it ought to mean, as they term it, "a monopoly;
that is to say, railroad be used only by those
who lay down the rails, and therefore, it is mono
poly; and, moreover that it would be-because at the
present being in existence you cannot say that it
is public nuisance This, as far as understand the
complaint before you, and the arguments OF the
opening counsel is in effect and substance, the
whole scope of the legal objections against this
measure, with the exception that they take the
ground that this resolution has never passed because
the Board of Aldermen was not duly assembled
when they voted upon it; and secondly that it is in
operative and Intellectual because the Mayor has not
concured in it. But, sir, in addition to the legal
grounds they have put before this Court with great
parade, these offers of accomplishment, with abun
dance of insinuatons though with not particle Of
proof OF bad faith and corruption upon the part of
the Common Council; and this constitutes the en-
tire, II am correct in the view have taken OF the
complaint before the court, and for which this
injunction is asked. The first proposition which has
been taken by us, and to which my associate coun-
sci has spoken at length, is that the corporation
had the power under the charter and statute Of the
State. This, if the Court please, from the brief
summary have given them of the state of the case,
il now stands before the Court is meeting of
the objections, and 1 apprehend the main and prin
opal objection, in point Of law that preferred by
this complaint against this particular work-that the
corporation had power, by charter by statute,
to authorize license the laying OF those rails in
Broadway. OF course. if the Court please, if they
are correct in that position our whole ground
for maintaining the resolution which has been passed
favor must fall from under US, because, if the
corporation had no power to grant it, OF course we
have right to claim it. Is this proposition true in
point OF tact2 This question has already been be-
fore the Supreme Court of this State, upon several
occasions, and had thought put entirely at rest,
if not by the case decided by this Court OF Drake
which have subsequently been decided by the
different branches of this same Court. We, how
ever, are now to approach it, as understand it, as
unsettled question. And first, then, if the Court
please apprehend that this power is vested fully
in the corporation OF this city by the two charters
that have been brought to the notice Of the Court
viz the charter of Dongan and that OF Montgomerie
By these charters as we understand them the streets
OF the city OF New York are, in fact as far as the
government then existing had the power to do, legal
y vested-the title to them legally yested-in the
corporation Of the city of New York, as it then was
composed. The first OF those charters Don
gan's charter-was adopted in the year 1885, at
which period, if the Court will look at the public
history Of the State, and the maps OF the city, it
then existed, they will see that anterior to that
Broadway extended, and was actually used ndopen-
ed public street, to Wall street only, and .
road passage way used by the inhabitants for
their convenience, through as yet probably I'M
granted lands as far as what was then called "the
Fields" being now denominated "the Park" In
that charter, at pages IA and Is, the Court will see,
after various grants OF power property and privilege
to the p Ss the % Is
every the streets, lanes, highways and alleys, within
the said city Of New York and Manhattan Island
aforesaid for the public use and service of the said
Mayor, Aldermen and Commonalty Of the said city,
and OF the inhabitants Of Manhattans Island aforesaid
and travellers there" This matter covers the grant
of the streets land the soil upon those
Streets and | beg the Court to keep in mind that
whenever speak Of the ownership by the corpora
ton of the public streets it is not in their private
right that they dispose of them, as they CAMS
lot Of common land to a third person, for a con-
sideration, but as Trblic trust for the use
of the citizens al large, and travellers upon
the public streets 1t is important as the Court will
readily see, that this legal estate should reside in the
corporation OF the city as trustees for this purpose,
for variety Of reasons; and without such sezing
the part of the1 public most manifest evils, and per-
petua difficulties and disputes would occur in regard
TO the occupation Of the streets the distractions in
them, and the trespasses upon them.
Tx Chief Justice BrOnsOn-DOpS this the sOily
FIX Chief Justice jones' have stated it, sir, so
strongly that is impossible for the Court to have
misunderstood me. We claim the legal estate IN
the city, trustees, for the common benefit Of the
city, to use hose streets public streets. That is
what we claim and not that we have right to dis
pose OF them as we please. Now, what is the pro-
position upon this particular point upon the other
-det Their complaint sets out with the allegation
that this is an ancient cty and that the streets as
understand it, were used, laid down, and so forth,
by the owners of the ground over which they pass,
and that the city carries its origin up to some 100
years, believe; but think some addition might
have been made that it goes beyond that for it was
formed probably about the year 1911 or 1918 accord
ing to the history given Of it by those who have at
tended to the subject. Then the position is, that
Broadway originally opened and laid out by the
owners of property for their own convenience and
accommodation and that they have suffered it to be
used by others until it has become a property,
by what has been in modern times called
by name that has come into very familiar
use, namely, dedication" Well, sir az regards
this portion OF the street that was opened at this
time, is this position, in any respect true OF
course if the Court please actual proof of the mode
and manner in which Broadway was constructed,
formed and opened, at this day, by oral testimony il
entirely ont OF the question, for human recollec
ton can possibly reach back to the period when Il
took place, because human life has not that endur
ance We only ascertain the fact, far a. il is
to be ascerained at all, from the records that ex
lsted at that time. and from written testimony
temporaneously Now, nregard to all that part Of the
city lying south Of Wall street, and which took it,
name, probably, from outer wall of the city pass
ing trough it, through the church grounds, probably
from river to rverfor indeed, at that time the EN-
bankment upon the North river at that spot was
such that It only required to go the length Of the
churchyard to come to the river itself at least the
eInbaBkment Of H. for the west wall of the present
churchyard was the margin Of the North river, be.
low which was only sand beach-the whole Of that
part Of the city, and spenk trum the history 81 The