The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-01-30


TIE BROADWAY RAILROAD.
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Supreme Court-SpssiaI Term.
IMPORTANT DECISION OF JUDGE IRA HARRIS, MAKING
FHE INJUNCTION AGAINST THE BEOADwAY RAIL
JAN. 2S.-yohs Ailhax and sthsrs o.. Jacob
Sharp 0~d othrs.-On the 29th Of December, 1862,
the Board o. Aldermen Of the city Of New York
the defendants, and those who might for the time
being, be associated with them, designated a. the
associates Of the Broadway Railway, should, upon
certain conditions and stipulations therein specified,
ell to lay double track for railway in Rrosdwsy,
&c. The resolution was adopted by the Board OF
Assistant Aldermen on the 30th Of December. The
;sS rs, named IN the on the same day
written acceptance Of the resolution and an agree
ment, on their part, to conform to its provisions.
The Mayor Of the city did not concur in the resolu-
ton. The plaintiffs brought their action against the
persons named in the resolution to restrain them
nom entering into or upon Broad way for the purpose
OF laying or establishing railroad therein and from
digging up or subverng the SOIL or doing any other
act in said street tending to cucumber the same or
had been enjoyed. II is stated In the complaint that
the plaintiffs are severaly of certain lots Of
land and premises upon Broadway; and they several
ly claim that they are the owners Of the land in front
of their lots to the centre of the street. subject only
to the public easement, right Of way the
II is further stated that the plaintiffs are all residents
and corpOrators of the city, and have been assessed
and have paid, taxes upon their said property to
large amount. 1t Is further stated that the defen.
dants under color Of the authority contained in the
resolution of the 30th of December 1862 threatened
and gave out that they would enter into and upon
Broadway with their w0rkmen and servants, and take
md
and would lay down and establish railroad in said
street. and run cars thereon for their own private in
teress and emoument 10 the great injury aud damsge
Of the plaintiffs and other property owners upon that
street, that If the defendants should be permitted to
take up the pavement In Broadway and establish
rairo I'd there the property Of the plaintiffs would be
seriously and irreparably injured and damaged. II
is charged that the resolution and the acceptance
no power or authority Whatever upon the defendants
to take up the pavement, establish railroad upon
Broadway. The conditions and stipulations an
nexed to the resolution granting to the defen:
dants authority to construct their railroad, and
the other matters stated In the complaint. are
sufficiently noticed in the opinion Of the Court.
The action Is prosecuted by the plaintiffs on
their own behalf, and in behalf Of all other
owners Of property In Broadway. The material
allegations in the complaint except the adoption Of
the resolution were cOntrOverted by the defendants
The issues were brought 70 trial at special term
great number of witnesses were examined; but ~
the decision of the Court does not involve an exam
nation Of the evidence in the case it is unnecessary
to state the testimony.
John Van Buren, and Henry Hilton for plaintiffs.
d. Field TOR defendants.
BY the Court HARRIS, J.-Whether the corpor-
alton of New York has an estate in ee either abso-
lutte qualified in the streets Of that city, mere
right of way held for the public use, is quite imms-
terial fer the purposes of this action. In either
case it must be conceded the corporation has the
right Of control over the streets By the Dongsn
charter it was invested with full power, license,
the establishing, making, laying out. ordering,
amending, and repairing Of all streets, lanes alleys
highways, &c, in and throughout the city, neces-
saiy, nsedful and convenient for the inhabitants Of
said city and for atravellers and passengers there
This power has never been withdrawn or essentially
changed. The corporation yet has the exclusive
right to control and regulate the of the streets
in the city. In this respect it is endowed with
Ieignty has no limit SO long it is within the OBJ
jeets and trusts for which the power is conferred.
An ordinance regulating street is legislative act
the State. But the resolution in question is not
such an act. Though 1t relates to street. and very
materially Affects the mode in which that street Is
to be used yet, In its essential features it is
tract Privileges exclusive In their nature and de-.
signed to be perpetual in their duration, are coz
eTed. Instead OF regulating the use Of the street.
the use itself 70 the extent specified in the resolu
tion is granted to the Associates of the Broadway
Railroad. For what has been deemed an adequate
confederation the corporation has assumed to sur.
render portion of their municipal authority aud
laye, in legal effect, agreed with the defendants
that SO far as they may have occasion to use Broad
way for the purpose OF constructing and operating
their railroad the right to regulate and control the
uee of that street shall not be exercised. That the
powers Of the corporation may be surrendered I do
not deny; but ! think It can only be done by au.
shortly OF the Legislature. Thus, it was provided
by the charter Of the Hudson River Railroad Com
pany, that its railroad might be located on certain
streets OF the city Of New York, provided the
tanned" (Sesion Laws, 1s4e, p. 27l, sec. ~ Au-
tbority to give such assent is implied in the act It.
self and the corporation, having pursuance OF such
authority given it, assent to the location Of the rail-
road and the railrcad company having located their
road accordingly, the assent became irrevocable.
The company acquired q right to the use of the
streets for the purposes of its road and to cores
pondiDg extent the corporation was deprived Of s
80 in the case Of the Harlem Railroad (Sess. Laws,
1881 p 327 Sec 1l) That corporation WAS authorized
by the Legislature to construct their road across
upon any street In the city Of New York, with the
city. The tame provision is found in the General
Railroad Act, ess. Laws 1850. p 224 sec. 20, sub.
5 II s thus that the city corporation may to the
tent contemplated by the Legislature, restrict its
Drake Va. the Hudson River Railroad Company Z
Barb. 508.) But for the authority derived from the
Legislature, am unable to see how mum ipal cor
poration can grant permission to construct railroad
upon one Of its streets which, operating contract
and vesing rights in the grantee which cannot be re-
called, must limit the power OF such corporation to
manage and control the use of the streets. think
it cannot be DONE Il cannot be that powers vested
in the corporation as important public trust can
thus be rtered away or parcelled out to individuals
or joint stock associations and secured to them be-
yond control. 1t was asserted by the defendants
counsel upon the trial. that the authority to construct
railroad conferred upon the defendants by this reso-
lution may at any time be recalled II this were so,
bic license. it would relieve the case from fatal
difficulty; for am not prepared TO say that 10 the
exercise Of the discretionary power with which
the corporation Is endowed, in the manage
nent and regulation OF streets, it may not aut6o-
rice an individual OF associa ion to lay down q
railroad track even in Broadway. But this resolu-
ton goes farther: IL authorizes the associates to con-
str lct the roao and reserves no right to recind the
graft. 1t licenses their cas- 70 upon the road
for ten yeas from the time it shall be opened, at q