New-York tribune., 1875-03-05
THE COURTS.
TORY FOR THE STREET RAILWAYS

| OF 1HE RAILWAYS IN
JUDGE RoBISsoNs OPINION AS TO THE RIGHTS
OF CITIZENS.
Judge Robinson, at the Special Term of the
Common Pleas has rendered his decision In the suit OF
john Taylor Johnston agt. Tie Christopher aud Tenth
Street Railroad Company. Tue suit was brought by MIR.
Johnston as owner of tho premises at Eghthst. add
Ffth-aye. on tho ground that tho only convenient ac
cess TO his basement door, yard and stables was by way
OF Eighth-5t, and that such access. after snowfall
was obstructed by defendants use OF the snow-pOw
and sweeping or brushing machines. These machines
he alleged threw the into the space between their
tracks and the curb into tho cutters and on the side
walk. leaving an abrupt RIDGE and thus preventing or
dnary access to his premises. lie charged that this
prevented him from complying with the corporation or
to keep the cutters cleared and the snow lev
eied In front OF his premises. He asked that defend
ants be restrained from using the plow and
sWeepers ana he compelled TO cart away the The
defendants answered that the snow plow and brush
we're such as are ordinarily and commonly used for
cnectually removing snow from railroad tracks to 1T
them for early and speedy traffic. and that they had
done no unnecessary intentional damage any
Judge Robinson, after rccung these matters. says
that the streets and avenues OF this city held and
enjoyed for common and public use. No one unless
under some special privilege conferred by statutes, pos
seses any greater right therein than another. Access
10 ana use of Che public street In front Of adjacent TO
the premises OF any citzen such other Of the
public street as Is necessary to his private purposes
IL usually enjoyed by him, Is his right. When eI
zens right is interfered with by unauthorized Oh
sructlon, this becomes private nuisance for which
the person specially incommoded IS entitled TO his re-
dress for such injury ho sustans thereby But such
use OF the public street.-The titl1 which in the pub
c as III the case OF tho streets IN this city opened under
any OF the public laws and as to Eghth.st.-even in
cudiDg that OF the ordinary easement OF common pas
sage transit, is dependent upon legislative will. The
nya of -Ynr fpy
exceptions ownod ia fee by tho public, and subject
to absolute control By tho Legislature, by which aQue
they may, as has been done in various instances
be absolutely closed without redress to any
ono accustomed to use them, or whose
thereof constitutes main incident to their
adjacent property II 1t deemed necessary proper
by the Legislature, IL may grant the u5e or street or
avenue 10 The exclusive purposes Of railroad, or 10 any
other particular character OF traffic. and eXclde there
from an others or different KIND. Tls power OF the
Legislature, while absolute. only subject To the moral
control operating upon tho conscience OF the Le2s.
tors. rs 10 their duy in cnactiIg laws that will insure
the greatest good ~ the greatest DumDr ana iuct no
unnecessary injury upon any In the or leSls
iatOn. cases are constantly occurring whero laws arc
enacted for the pibc good winch seriously prejnico
the interests Of particular individuals, and this consti-
tutes oaly such sacree OF private interest, as every
one III greater less degree called upon TO make for
tic bouch. The community in which ho lives.
TIE grant by the Legislature OF such franchise as
that held ana enjoyed by he deiondants coniers upon
the grantees special privilege hey DAD wha5 Is possess
ed by ay citizen as OF common right 10 tue extent OF
tIe legislative grant under cOnsiIerltlOn, IL c0nier5
privileges aud imposes duties 10 Do performed for tho
convenience or benefit O the public. fAe ri2ht to tus
ran ana operate railroad thtOu-h one OF the pu0ic
6irct Is, lie lncOnssteHt wth tle easchcDt e1yed III
common by every issn, H. dominant aud paramount
tLcreto and such common fglt mast y!cd and become
subordinate to The purposes OF ITO franchise. TAe
special privilege conferred DY the Legislature Involves
not only what IS GYen or Conferred III express terms rs
incidents, bat also ali sucn others as snail be necessary
cscua to the exercise Of tue pO Tef5 so enumerated
aud gwen. All inconsistent statutes and city ordinances
are 10 that extent repealed. As to all inteLfer-
snTeI %h Tne 'S eS@mon a@ connSl Snp%s l
applicable 10 this SUBJECT Gl-@ted By sound Judgment
of franchise t. b. unistnccs, and tho party aGgcvcd
has remedy law ~ act On on tnc case of 1is-
cbanccry to stay the r1us interference by ujlnc;
by section of The General kiiroad ACC when makes IL
highly penal To stop or ObstiGct thcr operation. "th
ycnenct ic duty also Imposed upon the grantee OF
such iIlnciis, to prUVie ANA maintain facrcS fOr
accunmodang the puDnc at all times VITA prompt and
conycnlent pasSasc.' la TIC adoption by Inc defend
ants OF tha use OF snOw-p0wI AMI sweeping
machines for the purpose of speedily re-
moving the newIy fallen snow from tnelr tracks.
It ubundantly appears tbat tbey only periorh
sue. machines alogds tue OILY known means b. which
On the Argument lls ing made clearly appear by
The opposing ali ayI,s, it siill urged 10y paintns
counsel that bis ciant' Wco injured y the defendants
Suffering the snow mus swept sucn machines on 10
Tie intervening space tno street, between The ri
road tracks ana ho sidowaih 10 remain on tho street
as H. together with tho which he. IN conpiiInco
with tic city ordinance, had shOv,ed or thrown ircm
his sidewalk street, aud gutter ana had reduced
or fashioned into paS5Oic ROADWAY destroyed suGh
roadway5 and formed neaPs Of snow that were hpbs
le by ordinary vehicles, aud construct an unAuhOr-
lied iutcrerehcc wn ms access TO Ms own premises
Argument - fJundcd upoi niscOncepOh OF tno
relative rgls and duties OF tlc parties 10 the suit IL
yolld he entitled 10 some L. urged be-
tween persons having merely u common fISht IN
The puDnc street. Should any person vested WIN |
no special privilege attempt Tor his own cphvchlcnce
IN the facilitating tho passage o hedVy vehicles
or those character as req Ared Tor tler con
Va nent passage tho snow snoi hc removed from
their trcisas Is required Or the rdilIOau cars Oh tdc
defendant: might De fairly Ist0n aS 10 what cX-
tsnt one citizen might mus on occasion or pcraiscnl y
subject the puoc street 10 hi' own private convenience
aud to the Inconvenience Ol ana spcelal INJURY Ol
others Bat, IN consideration OF the ehtIey inherent
privileges and duties of the parties to tails acOn IN or
10 the OF ghts IL seems clear tldt delenldht
nv virtue of Their franchise uly possessed rho rt
the plaintiff AM every one else 10 auOpt tue
.ntnary mode cpInpalned OF TO the and
TO insure not DeiaV again OccdsiOntIly thrown
arnnu so as to f1rtDrr oOsruct passage tIcr
cars La thus exercising their privilege aud PERFORM
auce Their duty Of cieaulng their tracks, hone Otner
ieyovrd upon them or subsequently removing IL else
accumulated between Ill II tracks ana
sidewalk such portions Or additional amount as
D,y Lad thus caused /, bo thrown thereon from their
track. The enforcement of snen SUBSEQUENT duty
would la the nature OF an operative or WOrhlhS III
iunclion mandatory rather tLan prOhDtOry ana nnis
cOu1tenaAce III the prlclples oI eq-Iy udoi "hoH
an Injunction Is 10 DO GriusSd
ILG TRIVIAL aud accidental occurrence OF tho throwing
Of snow by the plOws and sweepn. m;niilncs on the
tewak ght be- jlsunrd under The ilAb pilhcpie', rs
II /, only part OF the pubic street hb as IL Is sho"n
that the improved chimes recently used remedy any
nell accident there ground or complaint lett Tor
consideration requiring any such siInLiI! Irneus as
v Injunction UIon these considerations am of the
opinion tnat tnc hioIAOh io' an i'tf''"'-0'
Ordered accordugly with $40 costs H. II. Anderson
and Weeks IL DetOrest appeared ZOE lhe palh'lh W. T.
Bright for dcfeuddhss.
EXPULSION OF DRUNKEN PERSONS FROM
CARS.
A SUIT AGAINST THE THIRD AVENUE RAILROAD DIS
MISSED -CHIEF-JUsTICE MoNELL OF THE sUPE-