The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-09-30

evidence u0CluoO
br ach OF trust was proved 80 grave charge ought not
lightly inferred but TO be OF any avail should be af
lrmativey and clearly sustained by the evidence. the
charge was that more advantageous offers were re
ected by the Common Council but the Judge says that
b. tier bona ade offer not proved TO have been made
In equity case not Is true concluded by the
verdict of jury the decision of Judge on questions
of fact but upon full examination OF the evidence,
satisfied that the Judge correct conclusion
upon bs question me plaintiffs cannot therefore, avail
themselves Of this alleged ground TO sustain their action
The allegation OF the paintis that the defendants pur
pose their respective lands for the track Of tho
rosd not sustained by the proof Their titles TO the lots
claimed by them were not &C mted in the answer nor
were the convey to them produced in evidence on
the trial. There proof of possession Of the lots and
buildings adjoining the streets by the plaintiffs, or under
their possession Of any part of the streets in front
Of their lots except of the vaults, for which they
moa Council, 10 which body they had applied for
lei mission 10 construct them. In the country
he possession Of land adjoining public highway Is JUS.
y deemed although not conclusive evidence OF tns
possession OF the adjoining halt Of the road subject to tine
easement Ordinarily the owners OF the land devoted 20
the public in the rural Districts retain rights
the so-a the private rights which may be compatible
with the free unobsructed exercise OF the pubic pr
vlege Thus they have the exclusive right TO the pas
ture the wood which frequently of considerable
value. The existence and the common exercise OF the
right raise presumption IN favor Of the adjoin pro
pretors. II is but q presumption Of fact, however,
and may be rebuued In cities, however, the pristine
Gf there be any such) the existing owners OF the
sion for their individual benefit over the devoted SOL
The many 10 which may be appropriated preclude
raise presumption OF title Especially is this true in
city where the title to the land In great portion OF the
stree t. is vested under the provisions OF law IN the cor
poration. II, however, there any presumption or
lille in the plantiis. by reason OF their possessing the
lands adjoining the streets that would be fully met by
their admission OF title In the corporation, implied by Their
application for permission struct vaults under Ge
hall OF The streets adjoining their lands, and paying
compensation for the privilege 10 not deny put thst
the plaintiffs proved that the title their los bad
emanated from those who ct the time had owned the
beds streets and their deeds had bounded the pro-
npYtv " q n
have extended TO toe centre The vendor could nave bad
nducement 10 retain any title TO the portions Of the
streets fronting the lots and buildings Of other propretcrs
and besides, street boundary may be tae
margin the centre, the construction most 10.
vorabe for the grantee might be applied, which wcd
carry him to more capacous boundary That is the
rule wbee the bet private individuals
M sase SSn anS any ucnd
that inappcabe where the grantor ID corporation,
holding The lots for private and the streets for puh;
purposes There the boundary Of the private property
by that held for public purposes would apply 10 the dyd
ing line between the two, the same when one lol s
bounded by another II vendor has no title beyond
the adjoining margin Of highway, and bounds the
grartee by the highway, in general terms with cove
nant Of sezn wouia be no each Of the
his title did not extend to the centre of the highway. r.
therefore, the plaintiffs had traced their titles back 10 nc
CorpoI aton and the Corporation had IN the original cou
veyances bounded the lots by the Streets think that
they would not have thereby established their claims q
any part OF the adjoining streets IT. however, the plan
ts had clearly proved tina. their titles extended TO the
centre, the value of their terest would have been
merely rominai. The public would still have right 70
private right so long as the public easement should con
tnue ana as there no probability Of disc cntnuance,
the right of reverson would be worthless II for this
that when the Corporation demand aud acquire
legal proceedings the absolute title to the lands dedcaed
by the the public ft streets, nominal
second street, leh Wendell leS in the matters OF TWEEN
ty ninth and Thirty ninth streets, LIST H lse, 19l IT.
then the prosecution OF the proposed had been
for purpose which the lands claimed BY the plan
tits had not been previously devoted, they would not
have been entitled to an Injunction 70 protect an IL
tcypg al UrqY m nal mn 8
they could have obtained ample redress aiter
the actual infection OF the injury. But the
Of the street for railway would not vary is primary
designation. II was designated principally for pass
way, and railway furnishes an improved method Of
locomoton The late Judge Jones says truly, 10
Drake vs. the Hudson River Railroad Company 9th B
low 5ts that the said road with lis cars propelled oy
& ~ nsng y s,res mn s, 81 s
PASSING and repassing through with vehicles for tie
carriage Of passengers ana of goods, ana regbs ,d
the Of the streets by with equally
within the acknowledged right thus 10 traverse me
streets with carriages the OF thcm by other
cles Tor similar poses" therefore Inc plaintiff. ID
any title TO the lands the Streets their property will
be used for any purpose other than to pursue previously
acquired privileges and they not emitted 10 any
pensstnp OF ccprse 10 Injunction for the
that 10 compensation has been awarded 10 them. II The
obe ctors which have beer considering had been orig
nay va i'd they would not have cured by tue con
hrmaory act OF April 4, 1855. The Legislature may,
some suppose although do noD possess despite
power except where the people have been orursie
10 rcetric By their organic law but that contain
res ction broad enough to prevent the enactment Of
prevent private property not only from being taken
but from beng In effect nnnhilaed without fair
just compensation to the owners. II IS however,
aresopaby competent 5or the Legislature to relic &c
a measure from any objections exclusively OF a rDo
lie char acter That would Of course be no infringe
ment OF private rights; ard the rights Of tae
people Their collective capacity are generally subject b.
leg sa,ve control H. therefore, the resolutions In ques
ton the power conferred upon The city leg
a;Ire In author ring the construction OF the propo Il
railway at ALL Great ng comforting upon private
individuals a franchise which would consti.uie a me1l
ny in bfie W In
late general provis IN the law OF the state Tor tle
beref ard protection Of travellers, or In restricting tue
Ccmmot Council Nc tner power TO reg~lae the strees.
or In authorizing the creation Of public nuisance tire
specuve 81 is effects upon the rights OF private ind "a
auais OF The Common Council IN making the graft,
assumed executive administrative powers which bat
betn expressly denied to them or II the resolutions wou
interfere with the power conferred upon the Mayor to
license carriages, al thcso being, as was tco said by
the for the defendants oblectous With which
private individual has any concern, Of which the
State alone complain, eneciuaiy released by
the con6rmaory statute, and which, 50 far II relates
these terra, the ZANE learned counsel very properly
denornnaed ia peace acts The remaining Objection a.
view II, OF a much formidable character. " IL
that tnese alleged resolutions were never adocd by tue
Common Council; that they were never legally passed
That the two boards IN what they passed IN ta ma1tsr
acted IN their lee satvo capacity, do not entertain
doubt. Whether l. considered IS simple reeala
ton Of the streets, royocable at any time. or a a
grant OF franchise y still legislative ac'
The delegation Of Legislative poF ser 20 the Commoa Coan
oi i in eeo,ral terms. ~ limited, q course ~ me
constitution and laws Of the state but neither restricts
IL in the particular which am con.idcrrg. A. the
gives definition OF the be uuders, od
and interpreted according 70 It's ordinary sgahcaii11
Tue practice Of the constituting power may always be
coDidered. and should have controlling weight 10 The
depreciation Oi IL own language. VOW, has been
the practice OF Legislature 10 confer franchises snd
convey lands 10 individuals Oy legislative
principle ike thus needs continuation mas Il 70 ne
Of Fletcher Peck, (sth Cranch. l37) watch
citeu by the deeudanis counsel do not in8k that
was decided otherwise by our Court o. Appeals Ia tue
oi the People sturtevAnt II j. cilcult - say
how The Court intended 20 ia that case Toe Qaiy
POINT necessarily decided was, that II tao~e prosecangs
Of the Common Corrcl purp1rtng To authorize the COZ
stFUstOn and use Of ralways. were legislative acts.
they not 20 tar exempi from iudcul interference
that Injunction restraining legislative action VOID
could DC saey Gisregarded That enough for
determination Of that case, aud whatever else SAID
Ia the opinion OF the learned Judge Offsr difpg,
and no DOUBT would be 90 considered by him IL
any subsequent case. The Common Council IN the years
1sb2 and 1858 consisted OF Board sof Aldermen and
Board OF Assistants, together posscsssssed urd
settled The legislative power OF the Corporation Tdere
could be act Of the Common Council withoN; tue
operation OF both boards. The term board, applied
10 those bodies may have Two meanngsOue abstract
n he "A