New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1876-06-06
RAPID TRANSIT IMPEDED.

pvcApn To IT-OPrNlONs or JUDGES ROBINSON
Avn VAN pRUNT-TuE CASE TO DE TAKEN TO
THs COURT or APPEALS.
The General Term of the Court OF Common
Pleas Yesterday affirmed the Junction against the New
work Elevated Railroad Company in the suit of John
Patten but on somewhat different grounds from those
taken by Chief Justice DAILY Judge Robinson distinctly
disavows ground taken by Chief Justice DAILY that
tho abuttng property hoders have any rights IN the
public streets prevent any use Of them which the
Legislature declares public use. and rests bis deeiSlon
on the expiration of the rights granted to the old West
Side and Yonkers Railway Company. and the
failure by want of oOnsttutonality of all subsequent
nets TO extend those rights. Judge Van Brunt, while
deprecating any condemnation of the Court for opposing
a great public need oOnonrs in the same grounds This
decision has plain bearing tho proceedings OF the
Ninth Avenue rOad to compel the cessation OF Work
on of the road and TO tear down what mas
already been DONE new suit was begun yesterday Tor
the latter purpose. Judge Robinson. while sustaining
the former proceeding holds that what has been zone
must stand The effect OF the decision on the suit against
the Gilbert Elevated Railway is small
The suit of Jonn Patton was brought owner Of the
Pacific Hotel, TO prevent the New-York Elevated Rail
road from breaking into his vaults under Geenwich-st
10 build turnout which would bo close TO the front OF
the hotel ChiefJuslice DAILY decided that Mr.. Patton
had proprietary right IN the street, ana must be paid
for any infringement on that right If the legsa-
te authorized It, and that the Legislature had not CON
Judge Robinson, in his opinion as General Term
Judge after stating The character of the and the
appeal, and the evidence ON which Chief Justice Day
made his order holds that the evidence shows that the
proposed turnout must tend more or less TO the PLAIN
tTs direct annoyance. and create nuisance peculiarly
affecting his ordinary enjoyment and profitable use OF his
hotel and therefore the plaintiff may rightly maintain
the suit He hon discusses at length Mr.. Patterns
peculiar right in the streetway Of Grccnwich-st, aud
after examining the old charters of tie city relating to
land below lowwater marl-ths part of Grecnwich-st
was originally below low-water mark-ooDcludes that
this part of Greenwchst is owned by the corporation
subject to all public purposes as the Lcs
failure may determine to be proper expedeu and The
mere possessoy right Of adjacent owner by construct
Inc vault under the neither adds to takes
away from the general power OF the corporation over the
streets It is permissye matter and must yield
to any authorized public use.
The question therefore comes up on the defendants
claim to be entitled to this building under Legislative
enactment and Judge Robinson examines first the act
of 1867 under when the West side and YOnkers Railway
Company was incorporated with certain powers. This
act he holds only authorized experimental road OF
bali mile with cables attached 10 stationary tngines
and with power extension of the road If the system
proved successful The act of 1865 which greatly cx
tended this first hedCcares constitutional nnder the
provision that private or local bill SHAH embrace
more than one subject and that SHAH be expressed
In its title" In that act the title assumed 10 he merely
That purpose the grant OF additional powers, aud
that was not expressed in the title; the collection OF
additional county an additional subject en-
trey foreign TO the grant OF railroad franchises IL was
therefore unconsttuuonally joined
The act OF 1867 required the experimental hatmile
" the road to be completed year. and the whole
road within the city be finished in five years there
after Within that time the road was only CONSTRUCTED
to Thirty -rst-st. Judge Robinson then briefly states
the methods by which the present Company has ac-
quired the franchises OF the former Company and ad-
mits that these acts the Company fer consum
mated before 1874, became efectua against the
eitzen and could only be revoked at the suit OF the
State under claim OF forfeiture of the entire grant for
breach of condition subsequent to wit the failure 10
complete the said railroad in the manner aud 10 the t
extent contemplated by the act Aftcr the time limited
by the Legislature such rights and privileges as had not
become matured lost, and any private person
specially injured by any attempt 10 further carry Them
into effect can MAINTAIN bis action for any injury 10
tans thcreirom The forfeiture OF rights that have been
lawfully used by corporation cannot be inquired o.
collatoraly, but the expiration or cessation OF sueh
rights by limitation Of the grant charter under which
they had been obtained mag be-"
Previous to the constitutional amendments that went
into effect Jan. 1879 the Legislature had the power OF
authorizing such "a railroad purposed by the act
OF 1867 and that had expired by way
OF noyaton or Confirmation, but these would he, ~
substance grant ana a conformation OF forfeiture.
Judge Robinson then discusses the oonsttutiOnay %
the ac. Of 1873. under which defendants claim 81
rescusctation or reyvfcatOn Of the obsolete powers
conferred by tho act Of 1867, aud TO now construct the
railroad track contemplated by that act" lie
holds that so far rs it confirmed 60 the
defendants their tile as successors in interest 70
the grant made by the act Of 1867. and
relieved them from any forfeiture Of the rights that had
been perfected under for uOn-us'r misuser, the act
may have operated as a conformation OF any right oil.
forfeiture that account hut 50 far rs il assumed 10
p4ft tn 81.
when such 1igut did not exist under statutes passed
prior to the constitutional amendment it local
bill obnoxious TO 1t and void. The only power o. the
Legislature confirm existing rights, not to create
new ones This also obnoxious TO the provisions
OF the amended Constitution fOrbidGlng the ncorora-
ton OF previous acts By citation without quoting
the part 20 be affected in mi
In conclusion judge Robinson says: :" II the views
before expressed reeroucc to plaintiffs tile TO ho
yault OF his hotel he correct then no land o.
property OF his taken for the purposes Of The road for
which COMPENSATION must be made before any invasion
Of his rights. II the vault be within the intent OF the
act private vault Improvement for interference
with which compensation must be made tic statute
makes provision therefor The making of such comren-
saton rot however condition precedent to any such
right OF interference ana the statute secures lie enforce
mcnt through the eounty Tor all damages rctultinS to
such property The rights conceded 20 the owner Of pr
yare vaults would not entltle plaintiff injunction
prohibiting any with the vauit but a. hr is
clearly entitled to il upon previous considerations, tic
order appealed from continuing the injunction should De
affirmed with SO costs"
OPINION or JUDGR VAN BLUNT.
JUDGE Van BrUut after remarng ON the pressing need
for rapid means OF transit and that the Inconvenience
OF the few must give way to the necessities OF TIE many,
saws: ut would be misfortune for the people OF this
city il this Court should feel itself bound 10y the pro
visions OF the Constitution o State 10 mtcpose any
obstacles To the tempt Oh the go dsyi