The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-09-16

be constructed not 70 otrust impede the free
out, opened built. or to Interfere With say burial
ground, swelling house or eaias .i,soat zoe eossen;
Of the IL would certainly strike st met
the 6rst io<h that railroad si'h sEch provi
sion 10 its ebarr dangerous ground when takes
iiaDd hov the people Of city caa have the use o.
street fire. froo Qbstruesions and inpedn VI en- hs
street Of ordinary width and has TWO railroad trasks
uprn n along which iocoraotve scgnss with trains Of
Iennog every ave minutes Of the day. Nor 10
u by any mesrs I'M ossieis tnat an snis sass the ssa
ture Intended 70 exclude the ecmpAny altogether froa
the streets 81 the rish Of having railroad made
for tie desire 70 to me people o. Erie and M
NAY have been stronger han tbs wish 70 Ill rail
way comnuI ioaiion for the . with New York.
An osss anytb hing set in the way, whether II
totally closes the passage only kioders and retars
progress road may be oostructed o. less. The
rord is,r edimsnt is almost Synonymous With os.,ruc-
ton eIespt that 10 seldom ever. 10 signify an
entire blocking up Of the way Is an obstseno. an
impossible barrier To understand there words in their
ordinary import and then that railroad n not
q obstruction or impedi zent r the frss OF
street by the pnbhc Is rather than do Bat
perhaps n net quito safe 10 interpret item according
to their popular Certain IL 10 that they have
sometimes ben otherwise used in acts Of assembly.
law o. Aassssause.s provides that ~ any rairOaa shall
shall Be 20 made not 10 obstruct such turnpike
way" II decided 2s Pick 2ss) that this did not pre-.
vent all interference with the road bu required only that
it should the least pssbe I'm pedi
nsnt By statute OF this state, eraetsd In 1893 the
ted TO build DAMS provided that sseh dams should not
oSstruc Or impede the nav Of STRAINS or pre-
The s..: sr.
literally, the could not avail Themselves OF the
privilege at ALL but this construction would have been
contrary to the grant itself heeral adopt
ed and dam which did not materially hinder the navi
gaien held not to - within the prohibition Al
at he one before u.s. they are entitled 70 much weight
They decisive indeed, OF enc thing, which mpOf
have s. ssspt from sss, Which =.
would otherwise have been disposed 70 asgn them For
the sake Of consistency, We must folio. 10 the stsps
Let it then 10 conceded ss = possible thing. that
win not DO obstruction TO its free usetAat such rail-
road 10 not In any sense nuisan.e pr -thst stree.
without any such Inconvenience to the latter a viii
amount to an mpedmert or abridge the freeom Of ito
use 70. ordinary 7 s not true las The con
unobstructed as long A. travel upon IL h mot entirely
prevented II it b proved that may sque.ss him
q his s i doe, nc. folio. ths tie ne q the strsss Is
free unebsructed and unimpeded We hcld therefore,
sEsst IN such a. 70 cause ~ pasersl Oh
strueon. II assume, ~ We Dc. that the clause
der consideration does not entirely forbid the company
create such inpediments Is cannot Be- avoided Bot
those which not absolutely necessary TO the making
and using Of the railroad mausssrs
bound to leave the strestas nearly free from
Is can and for that spare no reasonable
en- a! are Of money Or labor for the IAa
grade the rest Of the street Also that viii make bet
ter for the public accommodation They cannot say to
rendered mpassabe but have not i'm peded its free
use becsuse you can restore again TO tolsrAols con-
difference whether il Be main thoroughssrs or An uam
portant by street. for this act Of incorporation protects
We have attsntively considered the b a,s wer, and
evidence in the cause, and they satisfy Of the foa~
ing facts: a. considerable portion of street
within the present limits Of Erie city occupied almost
entirely by the railroad In manner whieh mskss any
considerable use Of for other purposes almost imposs
selves say that the street might 10 safely aud convent
ussS y duty ess
railroad on bridges which too low and too narrow
for the large wagons passing another for single
wagon with bulky LOAD. (s) Two othsr streets are
with ditch si6e, and thus all passage along
those streets BY any hind Of vehicle - eompstey
these things shs
some Of these streets low, wet groand, and little
used nigh. Be sor: Of a'ology for tho dsena,nt.,
large part Of the evidence refers Is the danger en-
trains wsr: spproachins and the desy and iooonvs
Dience caused by cars which totally blocked up the
the road Street they bsTs Also the rssht to use !:
when made They may carry Al. The freight and passen-
necessary to do their business be great sometimes
to choke the thoroughfares over which they pasa IL
must be remembered that the thing would happen
business were done in cr1iages coaches and common
road wagons II the suffered to staad for
q and M
want of proper the defendants liable in damages
they have their charter 10 causing oSsrussons
Of this kind, unless such distractions could have
prevented or diminished by different construction Of the
road. -
Under other the volumnous body OF evi
dencs laid before might require much extended
discussion. But we content with the compendous
reference have ade to every Of this
railroad which Hes upon any street Of the city unAy
railroad a the place designated in their Of ncorpora
ton they would not have interiered with any of the
streets mentioned in the oh except ash lane and thss
railroad authorised to be made at place IL made 1t
another, it Is mere nuisance on every highway 1t
not being any route which the defendants were au-
thorised to take thsy them in dsobs OF their
dow Of authority It useless thsrefo.e TO inquire ho
much Of the inconyenence complained Of might have
been avoided by better constru ction II ID enough 10
IL that tho railroad has no business at al to '' where
appears that the city authorities gave their consent
70 the use Of the streets and to the location Of the rail-
road the ground which ii occupies This privi-
sge given $50 far the Mayor AMI Councils have
raiirosS should cause.-The East possols obstruction to
the ordinary travel and business OF the stre.ts and with
reservation Of the right TO withdraw the privilege when
should sppear to the Councils to be injurious to
the interest and welfare Of the city. The condition
broken and the privilege revoked Bat IL the
this time II would have been Of avail. here. They
bad NO "lsgsl power In the prenissso An act Of the
gialature cannot be repealed modified BY the orii
nance Of city corporation. What the defendants did
in disregard Of the law Iess offence against the
rights Of the public, because the city in
pdrtioeps eriminis If both had persisted In it. the
monwsalth's dnty would have required her to that
the rights Of her citizens vndcaed sg inst both
III II 10 alleged and proved and no. denied that the
railroad has been laid down and along public road
called TIE Buffalo road, in such way that for dis
lance 1t cannot be, and is NO. used at alt but the
contrary, that portion OF the people who wo1id other
which the railroad company has opened for thorn. OF
course this Is within tho prohibition sgains. obrucors
and mpedimeDts TO the free OF public highways
The TO this charge not based any ntsrpre
tatou which the charter is thought re capable Of
Other grounds taken One defence s T. at the rail
read could not be made 10 straight line without taking
part Of the Buffalo rosd. We Only say that IL
railroad Garnet be mads straight without violating the