New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1877-04-28
THE ELEVATED RAILWAY.
FRIDAYS ARGUMENTS.
Mr.. ANDERSON AGAINST THE ROAD.

made before the Court or Appears tns uiVrhins' M
T. Anderson opened the for the appellants. Thu"
ot,cular case IA an appeal from order made ut the
General Term granting application by the diDert
Elevated Railway Company for the appointment OF COM
mi.sioners to condemn certain parcels Oh properly
aleeed 10 be essential for the construction ana
of the road situated In South Fifth ave. between AMY
st and Amlty-ane. Mr.. Anderson maze inc ioiio"hS
points in the argument:
sruct railway differing IN it, entire rctSGe
mode OF operation from that which shey The man
authorized by the Legislature WAS road every we,e
spanning he streets aud pdn arches
by longitudinal distance OF not ess ' thrauoH
t tSe anu ways by The application OF that atnos-
pherie power compressed dir or 9,nS, ways
4 Is not to be erected upon arches but to be placed on
transverse Orders supported on vertical columns c
tudnsi distance Of so feet but arc to DO placed mucn
closer together, and columns Will be erected upon d INV
of land the title 10 which is sought to he acluicu ny
these proceedings which would not have been erecee1 ny
the plan prescribed by the Gilbert charter ,,o
petoners on the proofs which they have produced are
entitled 10 condemnation OF the appeiiahs datarm,ne
whether proper case for contemplation OF a eonc
The objection raised by the appellants m ans to
the land In question because appe,S 1 for the Con
toners do not require the and Ing a SY law author
he denied that the Legislature had the right
n reonre the petitioners to comply with the CONDITION
re.pecting the consent OF tho propertyowners before
t6sy sbod be entitled to the benefits OF the act Inc
before the passage of the act and ~ Ioape r "f
except on the e9nd9 S fsehs 0' hat
sucb railroads ought to constructed or opened III IL
claim that the Legislature intonde 10 pun
Which antedated the amendment OF the constitution
to construct any railway when the commissioners
auproye withodt complying with the CONSTITUTIONS con
dillon The plain meaning of the law was TO plt the
old and new corporations on ,he s1he ipo'5 - o Sn
old CORPORATION desires TO avail itself OF the plan OF con
srcton adopted by the commssiCners shali nave Tug
like power to do is gwen to corpoIa oigu
power to construct railways subjected to the eond
lions prescribed in the fourth section, ., =, oo,,
The appellants submit that the 3Oth section is ucon
suona because it does not require the cose en- al
property owners as condition 70 the @ d. fr
to construct the railway IL Is nothing tat INC socV
has laid out, and adjoining owners invited 10 coh
struct their respective buildings fronting thereon
nothing that when title 10 the Land Is acquired ~ tS
corporation the owner Ii assessed IOr It's Dee 'o
amount of his award nothing that he is made TO pay
every charge for regulating paving Tor imagining, ior in
proving the street many way; morning. that an
and costly strip adjoining the main HIGHWAY Is acquired
10y the corporation at an enormous plce which te 2u
Joining owners required to pay nner the Ges nod
avenue which their properly may 'front.' Every uol
lar which has gone 10 make our streets anu T
they are has paid by the adjoining owners ana YET
they have rights which the public and le;slaure are
bound respect Such ut least ~ claimed ~ the adVo
Gates street railroads TO he tie law
JUDGE PORTER REPLIES.
Judge Porter then addressed the behalf OF the
Respondents and to sustain the order OF the General
Term Of the Supreme Court in the first department maze
on the 25h OF January, 1877 appointing commissioners
and apprase the compensation Tor the ANUS
claimed by and proposed TO be taken by the Gilbert Ele
waited Road Company the extent required for the pur
hoses of the proposed Improvement on the line OF SOh
Iifth-aye His argument was TO the following effect:
All the successive acts in question were framed to
meet an npcrOus public necessity OF coHncIcill anu
seaboard STATE ensased III honorable nYaify WIN neis
boIing states. needing than any OF them the
highest facilities Tor safe and rapid COMMUNICATION More
eli f.IIl lf Is
pupos cities where the hours OF the business day are
short the place OF occupation Is usually lar rom
the dwelling and where the occasions Tor mutual intoi
course arc Indefinitely multiplied THIS necessity mas
been peculiarly felt in New York especially by the labor
ing aud classes. whose WORK Id miles rom tcIr
homes anu st "no y, 'e ave fine they cannot spare
nd .rb.d eypendi,uTss which they cannot afford
Tho geographical position OF the Guy WIN ts p'eset
fryIc I1mc other than tenement houses for families In
moderate circumstances and to meet the denaS or lic
iudu.rli classes but also promote the facilities for
general commercial intercourse and tue convenience OF
Ous IN the interior VINO III lht COURSE OF tic 9cd
visit the cty aud advance the wealth, prosperity and
material interests OF state AZ large Inc necessity
has been recognized by the yarios acts OF Tue lSH
urc year 10 year authorizing tie use oi tenn III
varios forms elevated ana depressed railroads ID an
ferent parts the state. ana approved by edcn OF me
SUCCESSIVE Governors rom leOI' "hri az ist 1921.
mental line in Ne"-York cry was au'hVilZ'u' GOWN u
the Rapid Transit net ~ ls75 ~, A..
Tie Rapid Transit act III 1879 was so D,euui 10 the
general interest, OF the state 50 just complete ana si
the terms OF the Consultation. and acceptable IN It's
feasible adjustments of all JdrT'ng rights anu cohhctIhs
iSntire after iulI discussion, with uranimy FOR
which on question OF sucn general interest there was
scarcely precedent in the history OF the government
IL was approved ~ GOV. Iiidcn, than who'll perAa"
no Newlork statesmen mas been more cohs!eulls rs d
rigid corr rei iOnst on all questions OF CONSTITUTIONAL
law and who exercised the veto power anslAnhey "ht
any section " proposed bill MAS ever oi doubtful con-
Nowhere in the series Of actsis the railway, though
often separately mentioned, spoken ol as tiDai ran.
n to tbe WAYS where the pnetaiic ways ana the
ilxxaN u,ule %
might just well nc claimed, or thc purpose or Lchor
g an act Intellectual for its object that II The law had re-
lated 10 maCaianized roads and plank roads II would
have Xcuded all plank roads unless tEey were hacau
ized; II tie expression mad been tubular Ways ana
tramvayR IL would exclude all trHinways unless they
were cylindrical in form, which would be contradiction
IN terms. Not only IL there no mention ny tie LIS
aturc OF tubular railway, ana no auch lhehlQu W
DR.. Gilbert I'm his pneumatic la'tht ana 40 su'n
way has existed, but no such term Is hio"n Get
in scientific Language OF popular pafiahce. lno " t
plan referred to IN the charter was tat o. a. oe ste
railway for passengers IN combination mi'm W @
tues for parcels The alterations IN the MODE OF sup.
porting tie railroad track, IN me SIZE anu condition Oh
the columns and III the .lmnutio 0 Iaie3 ma maui, III 1i
the RAPID Transit act did not impair or allec hc c-
inv OF the Gilbert Company, and others similarly stu
ated of its vested right to construct anu operate
street railroad OH the route III guestioh achse "ch
has never been forfeited or revoked -
The restriction in the 18th section OF the third article
Of the Constitution, amended III 1879, requiring
oi adjacent owners, OF any equivalent author
izaton by the commissioners IN RESPECT VI 1e etos s
authorizing the construction or operation OF street
railroad had application TO cases where e fSt hau
been granted under antecedent laws and had already
become vested right OF property 80 tir as ,e CONSTR
tho Ireyious laws authorizing the construt~on and
operation OF eley ated railway these streets with
out the consent of the adjacent owners. was vested
! complete and absolute The Both section OF the
Rapid Transit act does not enforce the duty OF
obtaining such rapid transit The does impose the
duty OF obtaining such consent existing companies
IN respect OF streets which they therefore author
lied by Law to construct and operate street railroads not
built. The Rapid Transit act intended pro-
feet and not abrge the rights OF existing companies
to the franchises with which they vested by antece
dent laws.
Every presumption ID in favor of the constutonaiy
throu ghOu OF the Rapid Transit act public and gen