The New York herald., 1877-11-14
RAPID TRANSIT.
The Fight in the Courts Against the
Gilbert Railroad.
A PROPERTY OWNEhss, MEETING.
+ Progress Of Construction
Of the Road.

Inere was argued at great length yesterday before
the Superior Court General Term. Chief Justice Cur
tis and Judges Freedman and Sanford being on tho
bench, the appeal In the suit OF the sixth Avenue
Railroad Company against the Gilbert Elevated Rail-
road Company. in which, will be remembered, a
Judgment was given by Judge sedgwck perpetuaily
enjoning the latter company from constructing It's
road. Ex.Judge Porter and Messrs. Lowery. Soran
and Stone appeared pehalf OF the Gilbert Elevated
Railroad Company and ex-Judgc Comstock and Joseph
u. Choats for the Sixth Avenue Company.
ARGUMEsr RAPID TRANSIT
Mr.. Lowery, who opened tho argument, stated that
the Gilbort Elevated Railroad Company demand re-
versal OF the judgment from which appeal Is takon
upon the ground that tho Court or Appeals has re-
viewed. In the case Of Hutton Vs. Gilbert Elevated
Railroad Company, the only question considered by
Judge Sedgwck, and decided that the referred
is constitutional and that the proposed road may law
fully be built it. II was insisted that In case
the Court should be asked review tho whole
that tho asserted franchise OF the Sixth Avenue
Company derived from the resolutions OF the
Common Council which are its sole sources
OF authority, amounts TO nothing moro than
q permission, revocable at any time
ten days notice, to lay down in Sixth avenue two
tracks. and run thereon might annu.
ally licensed to 1t by the Mayor; that such permission
Is not contract the obligation OF which impaired
tied to protection under the provision Of the constu
ton Of the United States relative obligation OF
contracts tnat the Sixth Avenue Company possesses
no private easement other Interest In the Sixth
avenue as distinct from ths public emitting
to maintain On action for injunction that the land
pf Sixth avenue is not impressed. under the act OF
lSl3, with such trust be avaied OF by the
plaintiff 70 defeat the erection Of doleEdants road
II was strenuously denied that the Of coinci-
qence between the proposed routes and these pre-
sctoed ov he act is valid objection the building
!. II She .,N,r that such building would IN any way
enjoyment OF any public private
sseN ac7The street. II was urged that 1t Is
fNs- he Legislature, after granting fran
ca. 20 one corporation which Affects tho
right OF the public, TO grant similar franchise
pair or even destroy the value OF tho first franchise
although the rignt SO TO do may not be reserved in
the mrs! grant, unless tho right TO do Is expressly
prohibited by the first grant, and upon this point II
was contended that there no obligation Of contract
binding on tho city or State TO permit the Sixth
its cars, ani much less to exclude
others that such an obiIgaton II existing, would
on in the same street the business proposed by the
Elevated Railroad Company, however injurious might
can be SAID in support Of the idea that the budnc Of
he defendants road brings upon tho plaintiffs the
Jury contemplated After continuing his argument
enforcing the same points mainly raised when the
same questions were under argument in previous
csedngs In the courts, was urged IN conclusion that
this was case where tho Interests Of private corpo-
ration were not 10 be considered for moment op-
posed 70 The urgent rcquiremen.y and Of the
public.
THE OPPOSING ARGUMENT.
Mr.. Choate made an equally lengthy reply. He
contended that hrst necessary ascertain ex
hcty what was, and what not, decided py the
Court Of Appeals in thor recently promugate cd deci-
sion in The matter OF tho New York Elevated Railroad
that questions arising OF the conflicting rights
ol the plaintiff and defendant we're involved either
Of those cases. and thut nothing was there involved
but The consttutionalty and the construction OF tho
Rapid Transit act 1t urged that II 1t should be
made TO appear to the that the plaintiffs have
and franchise, or by virtue OF, and as appnr-
tenant to, their real estate abvtting the Sixth
avenue, which 10 In the least degree 70 be taken away
or destroyed, or. in the language OF Judge Allen,
"the beneficial enjoyment oil which will be destroyed
of the defendants proposed railway" II is settled
upon authority beyond dispute that they have right
to the Injunction, which has already been decrecd in
their favor by the Court below, to restrain the
sructon OF the proposed road, until just compeDsa-
tion. within the meaning Of the constitution, has
been made 10 them for the rights SO TO DO
taken, destroyed or intcrfered with and, II not
appearing IN the present case that any offer
OF such compensation has been made or proceedings
saken to provide Tor It, any adequate fund provided
TO pay u, their right to an anrmsnce Of the decree
hon granted by H. follows necessary conclusion
Upon this assumption he insisted that all the u
shortly conferred upon the defendants by the saues
upon which they rely, is merely tho authority to
bud, SO lar as the public Ia concerned, leaving pri
vate rights to be adjusted by arrangement with the
proceedings to that end, as in the case OF any
other railroad to bo built. Coming to the
that, OF property fronting on me
Sixth avenue, the plaintiff and tho other owners OF
similar property have right that that street shall bo
maintained as highway, and kept open forever for
all the uses and purposes Of highway, unencumbered
throughout It's whole length and breauth, accord
ance with the provisions Of the Act Of 1913, under
which II Is found, as matter OF fact that the Sixth
avenue was opcned. that this right lar from being
impaired 10 fortified and demonstrated by tho pro-
visions Of the Act Of 1919 Alter urging other points
and citing various authorities he concluded his argu-
ment, when the Court took tho papArs.
IMPORTANT MEETING PROPERTY OWNERS.
A largely attended meeting Of Sixth avenue prop
cry owners was held 10 one Of the parors Of the ST.
Omer Hotel last evening 10 consider what
were necessary 10 thor rights against the
called encroachments of tho Gilbert Elevated roads,
by the State courts on tnat subject. IL appears
that an organization known as The sixth Avenue
Property Owners Association has existed for several
years for the purpose Of keeping free
all steam roads whatever this ASSOCIATION has been
RAPID Transit act passed In 1875, and when they
sawahat their battle about half lost 10 ut
least compensation 10. whatever injury might result
to their property along the line OF the Elevated road
AN UPHILL FIGHT.
Mr.. H. A. Morrison, the chairman, in calling the
meeting to order, read the report OF The Execut vo
Committee giving succinct account OF the progress
oil the work performed by the association. Now,
however, they were at last confronted by +.
the realization OF schemes which, nve years ago.
nobody thought would ever result In any
thing Their interests now were naturally as stake
and 10 extent which found no parallel In any
civilized community The question ior them TO de-
eide was whether they would continue their organixa
Tor his own interests They should bear IN mind that
u they continued the light, the simple and just
light of demanding compensation Tor injuries inflicted,
they had all the judges all the State courts, the entire
press evon, against them. II
STRAW.
There only remained open 10 them the United States
courts To them they could yet appeal. There wero
any number OF NONRESIDENT property owners wiling
TO bring the Constitutional question OF inpairng
contract, which the constitution emphacay forbids,
before the United States courts, and the dictum OF
those courts might far toward securing them their
n
oil damages winch even the State had not ad-
tudicated upon. 1t was them TO say what course
should bo pursued
Mr. Edward Lauterbach called upon to explain
the course OF proceedings he mad followed In obtain
Ing the inJunctons which were recently dissolved by
Inc courts lie detailed length the stops he
had taken In behalf of properly owners
who were bis cents, but when no
bhat everything was working against him he
assentod TO compromise ana succeeded
In obtaining stipulation from the GILBERT Elevated
Road that the structure 10 be erected by them
would be at least eighteen fcet from The curp.
stone; furthcr, that at night the structure
orr tbe ho -.