The New York herald., 1877-02-09
RAPID TRANSIT.
Continuation Of the Elevated Railroad
Across the Battery.
JUDGE. CURTIS DECISION.
Dissolution Of the Injunction Prohibiting
Completion Of the Work.
THE LAW OF PUBLIC USE.

Concerning rapid transit in which such largo pro-
portion Of the residents Of the city greatly In
terested Notwithstanding tho adverse decisions which
have hithorto gven OF the cases brought
In the courts, there has at length been rendered
decision giving promise that At least the obstacles
thrown In tho way Of rendering perfect tho plan
for rapid transit Of the New York Elevated Railroad
Company will be removed and no further
hIndrance be allowed to rapld transit on
the west SIDE OF tho town. This decision
was rendered yesterday by Chief Justice Curtis OF the
Superior Court in tho suit Of jeremiah V. Spader
against tho New York Elevated Railroad Company
The defendant who Is the owner OF No Bridge street,
claims have derived title 10 the property under
deed given by the city IN 1915, stipuatIng that tho
Battery should always be reserved for usage us Park
and not to DO devoted to any public use otherwise
Judge Curtis alter examining the testimony offered in
the case and applying to the same the principles
OF law which in his opinion should control his
dccison overrues the objections incrposed on behalf
OF tho plaintiff 10 the continuation Of the track OF the
road across tho Battery and gives an order allowing
this work TO proceed, which Tor some time past has
interrupted through the Intervention Of tempo
rary Injunction
OPINION or JUDGE CURTIS.
The wrong complained Of BY the plaintiff y any arises
from the ely under which he claims or Ct the es.s,9n
II hs ss Ms's IN
State making declaration and cnactng restriction
came cam vested: The scs Of March 4, 1871 =.
G hs
latter Ss =: Il Ai Tern" IN
this angusss regarded ed =; simply S dedication Of the
i public !. large the beneas
s. ss w % s ss
Legislature the Battery should remain for the erection
issars shall direct aud appropriated private
not contract under which any rights or
sisssn ss did sasS assar1iSn srsa,s .ra.. ior
cestueque trust The only beneficiary was the public ut
and :. M ss M @ o
sustain his action M must rely On the soysnn in the deed
establish that the Battery has been BY the
s % II s . hA'
ruslc A., ASD rnyAIE !. usk =, al
% % sn S T s
y 10 bs regarded by a s courts IT s % S%Se USE
that sasrs SOME settled principles that indicate dir
US. eSs s ss IN Ss
the enjoyment Of the advantages OF which. the
SsneS.ed. When such @provemon. are authorized Dy
s @
construction and operation OF railroad or canal Is
Soneted them d,fsc.ly pariispate IN hs profits
ss land for use
not be regarded as appropriated to Pyas use Mss
by the public Of an % , Iarsss the
liz use IL is however. claimed that this
contemplated At the time Of the execution Of this
asreed that the Defendants can show legal authority
their Of % 5 Sss at s e o. s
making Of the Of this deed such public
.a railroad was not in the minds Of
%S. SS poa for
pubic They were appropriated at first to works OF
fse% 1 he he city
m for SSs s nsrs
70 precisely such public uses as were known at the time
use. ana and 'a
Of M asasS na
would have been sxprssscd The evidence falls 70
face the Battery but is at distance Of some 200 fee.
lis eas
lots respect tS which he claims that the defendant;
the Battery nSiol4is sssins. being sHpsspr.isSS
Without lawful license the city those
representing the city, have entered the Battery and
+. aaS ss ess sns
arc their upon their
face Legal and show Ss sasy are paosssaf
privileges defendants under the thirty sixth
section Rapid Transit act arc in conflict with the pro-
''''' rils QUESTION coxsrrurIoxALLY CONSIDERED.
1t that where judicial determination sought
e. e % e s. sss:
does that the has sustained any damage
nSs position that
|
progress Of the work BY
Sn'sa causes be no 70 ss
Bsy as in
public enjoyment sought to be thereby promoted calls
Of Of IS the asupston Of r"nchc or ersson Of pub
oesrs and BY inSoEng the proper sstsSeS
law 1t no! for every private individual or any one Of
thus ehampion perhaps compcsse deteat their
% DfS hs
courts sustaining this doctrine Passing from this Il
ants justify their before the IeperAi Term Of
sa USp therefore s %
ons considered in the opinion rendered by tho Court
prsssmtca pars. Who have oppor
s" Issn Ss % ha
Especially when no material the plaintiff
s na * Ike s sy ses
before the court parties, The OF the Legislature
s by the city with to granting
r
alton their action that OF the city whose agents such
rnE CONSENT ADJACENT OWNERS.
Chief Justice Curtis then goes on TO rccIte tho pro
visions OF tho constitution as amended In so far as II
authorizes defendants TO make depot and ferry con.
nection across the Battery. Hc holds that the dc.
lendans have not violated tho constitutional require
ments by proceeding without the consent OF the ada
cent owners. He says lurthcr:--
The action defendant the construction Of
such as would be apparently in con
cdetal and In sense apputennnt to what they already
held subject the public control and for the public and
con nvenience. and which the public have by this
limited license permitted them at Its volition
| In the specified TO exercise and enjoy.
This Terry and depot connection Is shown to be voia
ton those rights secured to the public by the consu
tion any abuse evasion The o: the
defendants 1t Is simply the direction and adaptation OF
franchise already given and tho comforting OF
franchise by private and local bill The Legislature
authority In to the and privileges OF this
class corporations and whether there bo
operation or exisence may by general law regulate
direct and define their privileges The plaintiff has not
established his claim 70 Judgment tor the Injunction
sought by his action The complaint should be dismissed
| with costs.