The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1866-10-24

tnf RIGHTS or RAILROAD COMPANIES IN TINS CIV.
Tho Suit Of the sixth Avenue RaiiresA
Against the Broadway aud seventh Aven,hc
Railroad Public Highway and How it
May Tic Used.
SUPREME ooURr--srzCiAL rses
Before Judge, Daniels.
The S.ra Avenue Railroad Company u.s. TIE broadway
end Sesensh Avenue Railroad Obnpsuy sction
Brought by plaIn,is restrain defendants from run
ming on or in any way interfering with their tracks in
certain portions Of The city The has been trial
For nearly two days Al iss conclusion Judge Daniels
delivered the following Important decsion:-
Although thesa are nformaliiies IN tho articles
Of association yet their defects obviated by the act
Of the Legislature Of 1854 rasying the gran. Of the city
Of New York 10 companies or individuals TO lay railroads
IN the city of New YORK. and therefore, the plaintiff In
Nils Case has shown propsr organization Tor cor
poration under the statute 10 enable II TO maintain
This action and also TO enable II 10 lay down this
railroad track That brings Us " the act OF
were granted 70 the defendants In this case,
and y which tho broadway and seventh Avenue Rail
road Company have ded The theory OF ihat act
b. whenever tbs defendants IN tho case Or those 40
qnfng nights under them were TO construct In connec-
Won wth the tai's already iad n the CITY ana snoalo
ss1aed 20 secure The act Of iseo imposes that conf
fnp upon them before they could have the legal rgh 10
ESQ any Of this track II appears, however, by the cyl
1snca IN this case that proceemgs weso taken by the
Donted as tins oct Of isso contempissd order TO
esss the compensation that should DO made 70 tho
BY The dsfsndauss cars and ,ns these proceedings
Wero being carried forward until thsy wero arrested by
lbo injunction issued IN this action Now, although The
Legislature cnLempatcd and perhaps necessarily under
e constitution OF this State that this compensation
should be made before he defendants should enjoy the
pryilegc of running their the raj road Of the
PLAINTIFF yet when the paini interviewed and arrested
those proceedings By Injunction preventing them TO
carry contamination the way OF asoeraining those
lau,saes and then paying tho ascertaned
do not think that under those circumstances the
10 uroceed or ths, the rosdway and Seventh Avenue
Railroad Company should not proceed under this grant
ever this road until that compensation was made think
under these crcnmsances where the party obans In
junction restraining party who IS going on in the
Disc Of legal authority docs not lie with him say
shat the other party who wishes TO continue in tho
OF privilege, 10 restrain him BY injunction from
sAkipg the proceeding 10 ascertain tho compensation Of
che payment made conditional upon the enjoyment OF
Il is q familiar principle where party entitled 70
shs enjoyoen OF RICH, or pr sege on the perform
moo Of certain condition, II the other party ntevenes
aud prevents him from performing that condition,
Asos mot lie with him aftervads that tho party
motion 70 perform. th,uk therefore, tina,
Ne objection that tho cosnpensa,ion Oon.en.
.ssssned and ha. no. Seon paid i practically e d.
fAed by tho conduct OF tho pantn in restraining the
1ssondsnts from proceeding 10 tha. ma.tsn ey mime
presented for consideration as 20 the right or power OF
She LEGISLATURE to confer upon tho defendants the PRIV
1ege OF using this railroad track The validity Of this act
- attacked We start however In the consideration OF
ahs statute the same as we do with others We pre-
that the Legislature In the enactment OF statutes
exercises the constitutional power conferred upon
chem Before any statute should be held unconstitu-
Hlon IL should made 70 appear that some provision
Of the copstuon has been violated For the purpose
Of determ ininy that question we come back TO the
question a. to the construction OF railroad IN the public
streets OF the city These streas pubic property
they devoted 10 public use and at the time when the
plaintiff acquired the privilege TO lay down It's track aud
easement by the public by which they had right 70
the streets for all the purposes OF travel and all the
css Wne y bs "a road %ss sd DOWN IN th street
~ docs not necessarily RESTRAIN tie company from the
right to use this street. or these streets any more than
they always used them, unless II was during the imme
date period Of time In which the of the plaintiff
might be passing this raiiroad with the exception
81 this period OF time hen the rails actually
pied by the running along the track, undouo..
1dly they had the same right 10 use 1.-THE streets
= they bad before; and that they would have
any whatever The consequence OF this state OF
she case thon that when the plaintiff vas secured this
privilege Of lay ng down their track, the lay ing down Of
Shsr did necessarily appropriate the Of tho
street. the company itself II merely imposed upoI the
src,1on on Tie par Of tho Legislative authority confer
ring this privilege by which that authority prevented
prohibited from comforting tho same priv lego on omc
von to the plsnisn was 10. exclusive in any sense
whatever This grant Of authority was given TO the
' ns Of s s p1Se
city residing In along the route locality
upon which convenient to which they travel.
Yet the Legislature to the CONCLUSION ,h8t the
convenience of other portions VI the city required that
other roads should be laid, and that they should eni-
these streets the Ieglau then provided for
adequate compensation tho OF the ran already
Md down think the Legislature In case they came 10
9hat conclusion had made provision Tor payment To the
company for such damages they would sustain
sequence OF imposing new servude on this part ~ the
street 10 speak, through which these rails had been
1a had the right 70 grant 10 another company mssns
thai compensation, the night 10 pass that
road II they had aresdy been laid down. and that
without tang away the property Of the paintn In this
acon In other words VI the Legislature bad the power
70 allow smother track 10 be laid In this street. IN
choir wisdom they considered the public easement could
0e promoted In 40 equitable manner authorized
The payment OF compensation for she privilege
q 70 using the track Of another company. am, there
Zero. of tho opinion In this that the LEGISLATURE
pfopcry exercised their authority by enactng the law
81 1880 for prov ddng that the defendants should
chs road for the purpose OF running their
spop the condition they should make compensation for
ssch far such compensation should be deter
compensate the paints for whatever injury they might
sustain ] am inclined to think. therefore, under this
sew Of the law, under tho circumstances Of this
should perhaps eubsere the interest OF both parties by
aisposiDg Of this and not retaining for fur
sbes confederation Think far the other branch
this road without oompensationt Ia fully me, by
che allegation In the answer, they have always been
sssdy ~ make compensation and not 10 presums
that tho defendants Intended contrary TO Law wrong
fully 70 this track without making that compensation
which the Law requires they should Under the ercun.
Uapces think the case should be dismissed
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