The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1866-11-21
He coURTs S.
SUPREME CuuaI-esxeRAL TERM.

Decision as 10 the Rights Of Ferry and Rail-
road Companies in Thirty.fourth Street and
First Avenue.
BY Judges Barnard, Clerke and Sutherland.
james N. Waterbury aud East River Ferry Company %
The Dry Dock East Broadsoay and Battery Railroad Com
pdny The Dry Dock, East Broads0ay and Baayy Rail.
road Company us. The Neao Fork and Harlem Railroad
cmpany, the East River Ferry Company and Oliver char
lick Nov. a. 1866
SUTHERLAND, J.-When the Dry Dock, East Broadway
and Battery Railroad Company commenced constructing
and extending their tracks in and through Thirty fourth
street. the slip Of land hundred feet wide to
point about two hundred and feet eastcry
the papers this that Thirty fourth street. or the
strip OF land between the then castery terminus OF the
New York and Harlem Railroad tracks in Thirty fourth
street and the place to which the ferry house had
been removed and where 1t then was, had
been 30 far filed out and graded to be constantly
used by the public in going to and from the ferry and
for common highway purposes generally. This being
so, and considering other undspued facts and circum
stances Of the case, cannot SEQ why either OF the
railroad companies had not then the right Water
bury and the ferry company TO construct and extend
their tracks through and over Thrtyfourth street, OF
far eastery the grading the condition OF the street
or strip OF land would permit. The legal title the
strip of land was not in Waterbury and the ferry
S Or IN either and neither had any beneficial in
think the Injunction the suit Of Waterbury and the
ferry company restraining the railroad company should
be vacated with costs As to the question between the
two railroad companies, assume andsthink that before
the Dry Dock, East Broadway and Battery Railroad
Company actually commenced locating, constructing and
extending their tracks In and through Thirtyf
street. the strip Of land hundred feet wide, both
either Of the railroad companies had the right be-
tween each other to extend their tracks easery In or
through Thirty fourth street, the strip OF land the
ferry lar the grading and condition Of the soil
or strip Of land would permit Before the Dry
Dock, East Broadway and Battery Company act
ually commenced taking qualified possession Of the
centre middle Of that part of Thirty fourth street.
the strip Of land by locating and constructing their
tension do not see why either railroad company had
RICH. ~ make their extension through or along the
centre middle Of the street strip TO the exclusion
Of the other from that particular location =
But | think that the Dry Dock, East Broadway and
Battery Company, by first actually taking qualified
possession OF the centre middle OF the street. strip
Of land by locating and constructing their extension
far as they did until interfered with by the
agents or servants of the other railroad company,
Of and to operate their extension to the ferry,
to 1t as the condition Of the street
strip and the operation the ferry would
permit 10 the exclusion OF tho right Of the other
pany to interfere In any way with the construction
operation Of the Dry Dock East Broadway and Battery
extension as thus located. ! have carefully examined
the question between the two railroad companies and
can other principle ground upon which we can
put our decision. The order In this ac-
tion railroad companies and in which Oliver
Charlck and the Ferry Company parties defendants
should be reversed and the injunction which
Gated by II restored and continued, with costs the
plaintiffs, 10 be paid by the New York and Harlem Rail
road Company.