New-York tribune., 1870-01-29
TIE PNEUMATIC BORE IN COURT.

The case of the Mayor, &C., agt. The Beach
Pneum stic Company. called In the Supseme Court
at Chambers yesterday before Mr. Justice CaLozo The
defendants were Incorporated in Ices. their chorter
horizng them 10 construct pneumatic tubes beneath
the city and Brooklyn and under the North
and rivers but compelled them 70 build fret an ex
perhlental piece TO the Pos0ce. The Postmasterre re
fung 10 permit any connection TO be made there the
ground that he had authority by law TO permit H. the
charter was amended In 1869. Under the charter they
Croton Board. Having obtained this approval tbty
commenced operations and have now proceeded some
$50 feet down Broadway from MarreD-st
The City brings snt to restrain the further prose-
cuton OF the work claiming that the streets belong
them IN fec subject to the trust TO maintain them
streets that the defendants have right 10 enter npou
their fee without their PERMISSION and that they
The defendants present the afdaylts Of Mr. Peach.
President OF the Company OF Alfred W Craven itmer
Chief Engineer OF tho CTOtOn Board O George Green,
and Messrs HOroyd Muller Engineers. 10 the eject
that $4,000 had already been expended when would 10
that the tube an outer casing egt feet IN diameter.
eight inches thick Of bckwork or sheet iron TO contain
four tubes two eptical OF average interior diameter
101oO inches aud two OF 6 nches mat the method
Of constructing 1t the safest and most econoaca
and causing the least disturbance To tue street that
the work was well constructed aud 30 damage had been
one that the plans were submitted 10 and approved by
the Croon Board and executive department NJ he city.
That the tube was Ia feet below the surface Of Broad
way that the rOadbod Of Broadway here was tt feet
wide the depth 20 water 81 feet inches, giving cross
section Of 622I feet OF which this tube occupied lees
than g. Waterman and waterpiln, win Two cas-
pppes less than feet leaving all the rest uDOccuP q.
and II sewer should be built 1t would be but Pinch
sewer leaving ample for a public % The ssl
beneath to which it had beeu custOmaiy put
There unoccuped space for 100 such pipes rs tie oe
Mr. Beach made a separate aiidavit denying the Cus
claim to ownership OF the streets ,
Mr.. O'GormOn, arguing for the city, claimed that.
admitting the truth OF all the facts presented by the M
eacb Sav a rcs TIC CITY had in the
streets whether they had any Ilgla az All Ihe an
presented the implied sanc nn OF the proceeding
by one OF the Executive Departments Of the city Tho
ans to that that the Croton Department ad No
restriced TO controlling the sewerage thcgad and he
supply Of the city, beyond that they had no moro
asU SyHF IN the the G epoS SA Ge .n s
statements that they had done the Illegal act with ~
The opinion that there would be future need Of Ills
space for public use was a mere opinion entitled to bus
little weight, could anticipate the futute ue-
The fee Of Broadway he claimed was in the city as
well that OF the other streets subject to trust to keep
them for use as public street, bat encnmDered WIN
that trust the cry were as absolute 81 Tt
by them subject TO a private trust. , s,.,,,,,, 81,
This was, he claimed, new case, and Distinguish "a
entirely the city railroad cases In the case OF e
railroads, it merely purchase for the use OF lie
not nm exclusive occupation even Of the surface
it free for the ordinary use Of the streets .,,,
distinguished from the railway cases he must consider
this question as res adjad'edm. - Ill, ,.,,, g.,
those cases was very little. but they Overaid with
an immense amount OF those ioes tdt Of the profession
obr dieta For Instance in the Kerr case, nothing was
decided out that an adjacent owner was not emitted 10
was more said by the Judges but that was e only ques
ton before them The City being the owner ~ Zee oil Tue
was taking private prosperity without due process Of law
II was taking property without compensation IL was
Under the laws OF 1873 fee OF land taken for streets
lature had the power Of police over the streets TO regu
late their in manner consistent with TIER use a.
with that 1t violates a contract When the city takes
property 1t takes it IN trust IL pays for the prSpe
arising from the opening OF the street Hence arose
contract that the property should De used or hat osne
shown by the fact that the adjacent owners and ther
successors entitled TO damages Oh TIC
closing of the street The Legislature could not violate
that contract without meeting me PROVISION ~ tEe Son
The Legislature could not withdraw the use Of the street.
or influence with that right II, even ~ ths
TO this OF the it would have had 10 compensate
the adjacent owners but here there was no
The property taken by this Company was taken not f0r
public but private purpose, contrary 10 me consuu
ton The objects OF the Company thongh they mighs
benefit the publc) private gain An nn the AstOr
House. express company might all benefit The public
but they did 50 for pay they were ho6
atOns public and IN this charter they had ad IN
serted Geeaa'Tn .uson S NV The IersoTre OF d
cia functions but the Whole theory .was illusiye The
Tn brief glance over their opponents points he bad
question to the derivation OF the Cts title
not consider II OF much importance; the real object OF
this suit the general undermining OF the streets
ton directly from tue right Of the KING assumed
1879 by the state and by the State transferred IN l
to the City, and confirmed not only by the Dougsa
Charter but by SUBSEQUENT charters difference hed
been attempted to DO established between the taxing et
erty Such distinction was essentially false. since the
Whole Of p0pey in ~ a1d M Ta' s IN a @ s %S aS S S &
pecemeal Of oil property IN the land The use OF street
original use MS highway. sill. in that penduuniks
SWING of the Judicial opinion the most recent decision W
the Court OF Appeals in case against the tlty OF
Rochester that such use was hot within tic pur-
Mr. Graham. for the defendants replied He claimed
that the complaint itself II appeared that they relied,
not wholly the charters but the charters and tlo
acts OF the Legislature limiting and explaining the char
ters. This was u concession that the Legislature co.,
troed the City in some measure and \ the Cty we're
by its charters wholly exempt fron legislative inter-
ference with It's property then 1t was not exempt ID any
The complaint admitted that the defendants
legally incorporated, but denied that they had legally
entered In possession OF the land In other words he
City claimed this unconstitutional Ia that
respect They admitted that they held the streets In
trust but insisted that that trust was to be deferred G
themselves Such proposition was monstrons ar:
Graham then read the provisions OF the charter OF re
Company To show its objects lie argued that tins Was
not at all new question. but precisely the qnesn9h
raised and decided IN the Kerr case alluded TO oy MI
He claimed first that the soil OF Broadway the part
In question never WAS the property OF the cy Dos
the State. The Dutch law attributed to the sovereign.
SO did the English law which succeeded. The bryan
charter To the city only for the public use anu
by legislative Interference. Broadway open as far
Flton-s in l644 In 1905 1t spoken Of Broad.
least rs feet north OF warrens The act OF 1921 author
zed the taking OF lands for streets only for public use
The OF Darlington agt The Mayor settled that tns
property owned by the City Corporation Is held by u n
public corporation subject 10 the awmakng powero oi
the state" II was settled that the City Corporation e1'
sted solely for purposes OF and local regu
the delegated nowers --fv
The Legislature could therefore destroy the eOrpors,s
existence OF the city and leave ITS property TO be admit
stered by themselves for the public use. and eou.
therefore, do the latter alone. But rhe action sab
stantally for damages for trespass. aud the andas
OF the citys officers specially charged with loohns