The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-08-24


TsoY, August Il. 1867
An lmprtart Legal DIGESTION ef Jsdos wriga against a<
7yoy and Boston Railroad J6mpany-RasLoay Tracks -
CUES are Pubic Nuisance
william Wright or the Thrd Judicial district has jaa
rendered nror railroad decisiop 10 suit brought
by James Brown sgsust tao Troy and Bostm Railroad
oompsn,. Ii fsver The legal pro ,rey o. laying railrosA
through public ees In Cities and heuoe Ia isvu
OF he defepdsnu
TIE cBupe rAs tried the Rensselaer, Special Torn,
April IT, 1857 me facts foho~s:-On the 2sd Il
Nay, 1876, Brown the plaintiff axps, or Of this oiv,
and the Of estate situate Adams street. e
public street Of the oty) brought action against the dc
PENDANTS, railroad porsuon organized under the Gene
siIroap Of ls4s and 1885, TO restrain the dsren
dAnt. from constructing any part portion of raA
road track in Adams street. any part thereof add
from In any wie any extent digging escumosrns,
placing rals said street, part thereof FOR
the purpose or constructing or aiding 10 construct any
railroad portion OF railroad norh Adams ees and
between Federal street." The defendants are rs
road copo under the several acts referred above
to al inienu and purposes. According 10 the Original
articles for the construction VI their road. IL
to be ochstruoed from q convenient poin. in Troy
(Our correspondent then proceeds to sve detailed
count OF The prisges conceded 20 the company 6y The
Legislature and the common Council OF Troy, aad ooua
Upon these fscts presented The Court tho Judge
dc des the action Il must pear, ls thai
the act of the defendant in layti railroad track IN
Adams street. Is Unauthorized and illegal; and "a thA
such illegal may be restrained al the st Of the plain
uG authorized, 1t lie no, pubic nuisanos, mr. would
the OF property the street. In such 'ae, have
right Of sctopos consequential damages II unla ~fu
thea The az, mnst be nuisance occa.ooiag droe.
oal injury TO the pa nd, distinct from the pabhi rW
parable In It's nature, that cannot be easaed Gv
In damages, to ente the plaintiff 70 tho aid OF the Coa
70 restrain sueb nuisance whore 10 ,ecai injury saf
rereo nut the nuisance coupsined OF puHhc 10 It's na
rrc, and tue injury coneqoeptal and com moo 70 all
private action cannot be maintained to supp the nu
stice AFTER discussing the poJoeiop, " Did the de
eidsns proceed in The obstruction Of the track @tboa,
due authority Of laa" aad wing a. the ooucl son that
they old pot tie Judge proceeds s. as, et taat railway
tack IN the street ofscy pr public nuisance
a. invasion OF any priv e right verted in the fro
authorized such appropriation IF the rect With hc
asa nj or thu city government (Which In ths isst.e
obisined aud cite number Of former decisions 10
but ~ though doubling the propdey and real force Of
these N ;lu inps the Judge bosters up Ms In he
discusrion OF second propo,luou Ia ~nicn
II, however IN mistaken III some or all tnese oonei
stoDs remsinng inquiry IL, what uue ma, the paiunr
Of the defendants from exercising the mission grantee
by the Common Council 81 r y? think may ray upheas
that he is tsxpa5e IND rner Of foa in AtAms
street, ths vsue Of sh Srsd be greatly depreoassd
by consiructug railroad N he street Nothlng
oh a. to tn nature situation OF the plaintiffs pre-
perry or that, NJ LAY Ing the rak IN tee street,
cal injury would reeu to Dim, tina. he would suffer
vs.th esten.d win any inssnAry consequential In
jury TO ether pro eft, hners and payes
and the bio Nothing certain that, under these
cncarsapcee, tho plaintiff cannot invoke from
court Of equity the ordinary remedy OF In
Junction railroad track 10 a city I nsi per Dob
lo nuisance, and until the rosd be CONSTRUCTED
and ated In AGAms tree Auth otzed BY the corpo
ration Of he city, can Be whether this track IL
nuisance. Ut should prove TO be public ausAbce and
there bs been t gal exc cise Of municipal power,
violation OF pubic uui by the city Of Troy the nuisance
may be suppressed by civil or Criminal proceeding Or
the abuse Of porse yer and breach OF corporate us
be restrained and ctet BY equt action prosecuted
by tho Sae But private action cannot be maintained
for the redress Of public wrong
For an individual At his suit 10 be entitled 70 the
relief ofs court Of eqoiy must be sho~n That he s f
eripg, thresiened with direct special injury gros
ing out Of the a of the party against whom be compAns
II the complaint be ths railway track Is being laid In
nuisance or specially Injurious 70 the com ,anaDt OtheS
wise no makes title 10 be relieved action begun
and prosecuted In Lie irdiviiua character II anything
determined by the Court Of Appeals, In Dav & al
the Mayor al, H. was precbey this In 'Is case there
10 thai absence Of proof ending 10 shov thaa
the plaintiff viii sus ain any special injary By
the laying Il toe railway track upon ths Jreseoa
grade Of Adams street Indeed he only claims "
be entitled TO relief the ground thai he y
TAI payer apd properly owner on the street, and thai N
common With other property owners tho CONSTITUENCIES a
the proposed railway track viii efoct deorecisaou a
the value Of such property. The PLAINTIFF oompiAn
should be- dsm!ssed
l. Thai the Troy aud Bston Railroad Com pauy m
proceeding sithoui due authority OF lay, because rs
road company pyN Is Lot q nuisance
right, II he the street, restrain rai
road company, unlen he sho~s thai nc suffers soms sps
ciAl injury
Tue deci,ion will be appealed from
ever there wa oecifion rendered that should o.
forth the p,rulAr Indignation 70 purpose this
cely We Of This seciion hold there cath
enough which 10 build 'arcads without running tbon
through our par,rs sepdpg the "rop seed" 70 NO
ae domestic fanes, and snortingiy ravisn vSy
household and godtesses and gods