New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1859-03-29

framed With special reference 10 ths taoltc. II IAf
,ot "a in the City OF Ne~IOrk are 81 important All
,acsssorv a. a Represented to us By their aivOca'ss,
and ar. detnsCded by public interests 70 tue extent
and In the numbers ibd eted by the various prCect4
offered for the confederation OF toe Legislature they
,bouh not be created by separate AMI special charters
but syttsm should be deysed and put INTO operation
which would afford proper facilities Tor their constr lc-
ton wherever required with proper safeguards Tor
nublic and private Interest," aud proper guarantees
Of Uniformity in reference 70 the rights OF the corpra-
tors and tier modes cf operation.
The proposed bill would If enacted, be striking
example o. the evils Of special legislation on subject
which belongs properly under our present Constlt1-
ton to The sphere Of genera law. Previous Lsgisa
tures have already declared that 10 their Judgment,
two things sboud precedeihe establishment Of any
city railroad first. the sssent Of the municipal c0rpo-
ration; and second the assent Of ajonty Of the
properly owners along the proposed line If bese in
iersts are 20 he consulted in any case they ought %
be consulted in all cases Of city raroa3s There ia 10
proprety in granting any one of the applications now
before the legislature With ont ouch assent more than
any other; while 70 grant either, without Il, wond be
TO repeal the general got Of 1850 and the set Of 1871,
and 70 leave cut Of view the provisions OF the C0ns1-
tuOn. There is such urgency ID the matter, no
such pressing Ct immirent necessity, ss 10 require
hasy repeal Of the acts in question: or an evasion OF
Constitutional restrictions. The wnOie SUBJECT might
more appropriately be embraced within Lae pufVIe"
Of general law, rna'ured in such manner az 10 pro-
teCt private and municipal rights, while u suoseTvss
those public interests Of which the Legislature are Tie
Tn addition the objections above considered another,
ard in some respecs mcrs terO1s off ouly, remains
70 be considered. II has been urged upon the Com
roee by those VINO oppose the blu 10 question, thaJ
il beyond the scope OF legislative power 70 grat 20
individuals an easement or franchise IN the paOlc
stYeetg Of the CITY Of NeTIork without the consent
OF the Corporation and the property owners on sucd
streets or without compensation 70 them. THESE 90
ections have great force IN themselves, and are ap-
parently gthered by the course OF Judicial dec
sion in 10 eIt involving the questions which they
. 10 not n tOmUffHe.
Of the Senate to sdudicste upon this or any OF the
egs points raised before them and II might, perhsps
seem Unnecessary 10 consider them, slnce parties az
grieYed by the passage Of tins or kindred bills can
apply 10 the courts for redress. Bat IN regard TO
question Of legislative power IT s due 10 the citizens
Of this State that they should DO. needessy be dnvsn
into litigation, by assumptions OF authority on the part
of the Legislature, in matters OF doubtful JnriedlclOn
here private ends are 20 be served without shy such
controlling public good az 70 demand sacrifice Of in
dvidUs rights. 1t is, besides, proper to lay before
the Senate the present position OF 30 grave qneson
sufficiently 20 enable il 10 determine whether TIE OH
before usOugbt not to contaib.provOps Tor procuring
some further ascent than that of the Legislature, or
securing proper compensation 10 those whose properly
or rights II may affect.
We are asked TO grant TO certain private persons
right Of way in public streetf in the City OF New-lork
II the Legislature has the power 10 make the grant 1t
is only by virtue OF its risht OF em'Hem DOMAIN over
the property Of its citizens. Under TINS rgh IL can
Gre ate railroads. and other roads, and, 1t need be,
authorize the taking or private property the purpose
of their construction ard use; but with this qusica-
tiop, imposed by the Constitution, that SUCH properly
cannot be taken for public nee without couptLsa'io1
II is claimed by the projectors OF these city rarOa1s
that condensation has already been made TO Inc
adjacent owners all cases where streets have been
opened under statutory provisions ard that the streets
bting already devoted TO public purposes no iHther
CONFORMATION is necessary; and thai, 10 reference TO
oil the streets of the city their long dedication to pub
he authorizes the creation OF railroads upon tEen
in furtheance of Their original design and purpose aud
improved facility for locomoton along their line,
and further that the streets are owns by the corpora
ton as a government and the supreme power of the
State can direct how they shall be used. To tnis, 10
answered by the opponents of the BILL that the streets
of the City of Eew-IoIk, without exception, are
owned either by private Owners, subject to the ease
meDt of the public in them es streets, or las IN the
great majority Of csses by the corporation OF the city
IN trust as public streets that by special sets CHAP.
50, II. Laws Of 1873, sec l1S W. all the estate and
tile Of the people Of tbie State in ell the public streets
of The CITY have vested in the mayor, aldermen ana
commonalty thereof in ut for use as streSs or hgn-
ways hst the Of the streets, by private indvida'
ais for railroad tracks, is not use the
original design of the street that 1t would be neon
s,sent with and departure from, euch deslgn, and
Consequently, that legislative grant, authorizing
such ana inconsistent easement, Tor the dement, OF
private persona must be conditioned upon the consent
o. or compensation to- the private owners or the cor
poration. ,,.,
These ale important questions, touching which con.
hicting views have been entertained by different
udqee The ownership OF the lee OF Tue vi
Civ of Nev-York cannot be considered as established
by express ADJUDICATION. II has not been passed upon
by the Court Of Appeals In the case oil Nlauls agt'
The New y oIk Central Road Company, Judge Selden
rtmaiks: 1t is claimed, and apparently with much
"utice that to large portion of the streets the
fee of the land is vested In the corporaton' Inns,
however. is merely statement of the clam, not a
decision of the Court upon It, 10 regard to some OF
the streets not included IN the large portion referred
10 by the learned Judge, it is claimed, on the other
hand that the fee IN the owners OF the land on either
eide subject TO the public easement In the streets az
Streets Manesty the fee IS either 10 such owners or
in the cOTpOration trust forever streets, and the
taking of i without compensation would be UNJUST
moreover, it seems proper that where ctzens nave
been assessed for benefit IN the opening OF new streets
through their property, by which ITS value was en-,
hAEced, they should, ia come way, be compensated
wien the same streets are burdeDed with new use,
by which the value of their property may be dmin-
ished and their business facilities impaired.
The more practical, bu. less difficult question
whether railroad Is consistent or inconsistent with
the original design CT purpose ct public street. has
also received opposite and conflicting answers from
eminent Judges il this State. by some IT is regarded
as coming directly and egtmatey within the scope OF
the street or high vay, being simply supersdded
method Of travelling, which modern invention has fur
nished to the public, and which finds its proper posi-
ton on the public highway. These views are ex-
pressed by Judges Jones and Edwards In the case OF
Drake agt. The Hudson River Railroad q Barbour
5OS and by Judge Edwards in thSt OF Mlihaa agt.
Sharpe, as Barbour 1888. Precisely opposite ground
is taken by Judge Demo- in the case of Davis agt
Tie Mayor &c, "A Herman, 5Ol) and by Judge Sell
den il " lams sgt Neg-loT Central Rail5osd Com
p6ny nc n y. Reports, q. few extracts from the
two cases last cited will be appropriate:
"a railroad says Jsdse DEMO in Davis sg- The Mayor
Her So has 40 n,cesSAIy relation TO- or connection WITH
grade will permit it, but il equally
wen run through The country remote from hehwsy ana sP9n
vsy coincide oircum.spoe '!npy accidental Tses are
and osret agencies TO ia s;e passage and hc