The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-05-19
The Rapid Transit Controversy IN
tho Courts.

tho Courts.
The application of the Ninth Avenue
Horse Car Company for an injunction against
the Elevated Railway compelling it to stop
its work of construction and to take down
and remove its tracks, was before Judge
DAILY yesterday, but the final hearing is ad-
journed to next Monday. As this case is Of
great interest to the people of the city it
may not be amiss to give succinct state
ment of the legal points.
The suit by the Ninth Avenue Horse Car
Company is consequence of the successful
application of the owner of the Pacific Hotel
for perpetual injunction restraining the
Elevated Railway from constructing turn
out near his property. The foundations of
the pillars interfered with his vaults under
the street. It has been judicially decided
that the ownership of real estate in this city
extends to the middle of the adjoining
street, except SO far as the land is needed
for street purposes, including water and gas
pipes Chief Justice DAILY decided that this
right of the owner of the Pacific Hotel cannot
be interfered with except by legislative au-
thorization to take private property for
public use, with just compensation to the
owner. But Judge DAILY, in the very able
opinion he delivered, did not stop here.
He examined the acts of the Legislature on
which the Elevated Railway has been con-
structed, and showed that they are uncon-
stitutional and void. The act of 1868 is un-
constitutional because it violates that pro-
vision of the constitution which declares
that every local act shall include but
one subject, and that subject shall be
expressed in its title The act of 1875 Is
also unconstitutional because it violates
that provision Of the constitution which for
bids the re-enactment of any former law by
mere reference without inserting it in full.
The consequence is that the Elevated Rail-
way never had shred of valid legal au-
thority to build and run its road. The in
junction, however, granted by Judge DAILY,
and made perpetual, merely restrained the
company from constructing turnout which
interfered with the property of the Pacific
Hotel.
1t was on the strength of Chief Justice
Days decision in the Pacific Hotel case that
the Ninth Avenue Horse Car Company has
commenced proceedings for compelling the
Elevated Railway to take down and remove
its road. We suppose such suit can be
maintained only by party in interest
whose rights are infringed and who COM
plains of substantial injury. The mere
fact of competition does not fur
nish such q ground, and the grievance
complained of by the horse car company
is that Their horses are frightened by the
Elevated Railway. This seems slender
enough, but the judicial decision that the
Elevated Railway Company never had
particle Of legal authority to build theft road
encouraged its adversary to strain point to
dispossess it. 1t is to be hoped that tho
Court will decide that the horse car COM
pany is not sufficiently party in interest.
or has not suffered a sufficient injury to give
it standing in court in prosecuting such &
suit. Be this as it may, we presume that
legal ingenuity will be able to protract tho
case by dilatory proceedings until
new Legislature can validate the
franchise of the Elevated Railway. There
is no doubt that the Legislature intended to
give the road the rights it has attempted to
exercise, nor that the company has proceeded
in good faith. The present complication is
the result Of oversight on the part of the
Legislature in carrying out its intention, and
the next Legislature will be bound, in fair.
ness and justice, to rectify the blunders and
oversights of its predecessors.