The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-11-08
RAPID TRANSIT.

THE INJUNCTION AGAINST THE EAST SIDE Ex-
TENSION DISSOLVED IMPORTANT DECISION
IN THE SUIT OF RUFUS STORY AGAINST THE
NEW YORK ELEVATED RAILROAD COMPANY
decioed victory for rapid transit on tho east side
was obtained yesterday by favorable decision IN the
case of Rufus story against the New York Elevated
Railroad Company, which rendered by Judge
Robinson, before whom the case recently tried
In tho Special Term OF the Court OF Common Pleas.
The suit the full particulars OF which have already
been published, brought by Mr.. story against the
company restrain the building OF the proposed ele-
waited structure side in front OF his prem
Uses on Front street. When the action was COM
mepced a temporary injunction was oblanod from
Judge Larremore, and the case has since been con-
stanliy before the Court In a variety OF phases
JUDGE RoBiSsoS,s OPINION.
Judge Robinson in his opinion hoias that the Court
OF Common Pleas has concurrent jurisdiction with the
Supreme Court TO take cognlzauce oil the matters IN
dispute The act OF 1857 uniting the right 10 equitable
relief ny way Injunction against the West Side and
Yonkers Patent Railway Company, and nlerdicting
tins and other from exercising the power Of
court OF equity from granting such relief in case
properly presented and which IL might Otherwise en-
terrain against natural person. he says, was clear
and manifest invasion OF tho constitution and OF this
express mandate, that the corporation should DO a-
pcrsons.n The constitution OF 1870 having
jurisdiction thea possessed and IN SUCH
others should thereafter 90 conferred upon
il by law well uc imagined or success
fully maintained that u does not now possess all
powers and jurisdiction with those OF the Supreme
Court Alhn territorial limits III all civil actions and
special proceedings Judge Robinson next discusses
claim made by the painful 10 own the lee or any
the land ana front of the premises III front
TO the centre OF the street, under the puDic acts
anu grants, wnlcn ne cites and comments upon, and
holds he establish any tile or interest IN
the lee tho property IN front OF No. 81, ana, even
though lie may nave an easement, he can derive NO
other benefit tLererom tnan does the defendants.
RIGHT OF COMPENSATION.
Judge Robinson proceeds 10 discuss The qucs-
ton OF the CAIN OF tnc paintin that, although II
should cd tina; he Is not the owner IA Ice
or any any private interest on Front street other
wise than AUDITING owner, with right oil ease
mcnt therein IN that relation thereby entitled
not only recover damages Tor any interference with
such .glt but also 10 INJUNCTION until ne has nrst
oDtainel complete compensation for such injury us
his property sna prospcctvely sustain thereby from
deprivation OF an easement on the street 10 such
AS II shall be INVADED ny The railway contcn-
plated by the defendants, and which he
asserts under the constitutional provision
that private property SHAH be taken Tor
TINS point Judge Robinson says-"Undcr such
serted rights the lrst question presented Is whether
a. abuLing owner on Front street, without
showing any other title therein, ho Is entitled any
compensation for any other authorized public use OF
public highway since ~ clearly appears mat this
contemplated elevated railway ~ no way intcricres
such pubic Of the street except 10 such ex-
tent as the columns upon which II Is erected
incominode ana interfere with the rights OF the pub
lie in passing along tins street 4 the consIruc-
ton OF this elevated railroad DO author
ized by law II is respect pub
he or private nuisance The constitutionalily
of the General Rapid Transit act OF juno 49, 1870
chapter COG, has sustained by the Court OF APP
peas and objection IS suggested TO the regularity
any OF the proceedings Of The defendants to enectu
ate their rights and operate SAID rail- way
except that II claimed that IN Tho absence OF any
the owners OF hall in value OF The property
or toe portion OF the street which IT is proposed
to construct ana operate such railway they nave not
first obtained the consent OF the local hores hav
ing .hv =, s 'his cy IN
makes complaint, and the plantf is in no respect
champion OF ther risnts, ana that consent may DO
manifested by some corporate act or by their acqu
NAY PROCEED
ssrhe right the defendants 10 proceed in the prose-
cutlon OF their seems perfect unless III dong
SO they taking some Opretary right OF the PLAIN
TINS IN an easement IN Front street, OF which he
stall thereby be 10 some deprived by their
contemplated acts. IL would seem tnat some ques-
TON Is 10 have been raised upon this point
by the opinion OF Judge Allen IN the Court oil APP
pcals and grounds assigned by some OF tue judges
dissenting from the decision Of the majority and
placing such dissent upon the ground that no provi
sion was made the act oil Juno IL, 1915, Tor COM
pensating the aDuttng owners having previously held
that the plaintil hgd right AS owner OF the fee IN
Front street Ii becomes necessary TO examine into
HE character OF no may have 10 any KIND OF
easement therein from bong an aDDutting owner"
THE COMPLAINT DISMISSED.
Judge Robinson then goes TO cite numerous de-
csions bearing directly ON tue point ana concludes
his opinion AS iolows:-sA reference 70 the above au
tnortatlve decisions in the courts OF our own State
and IN construction oil its constitutional provision
would seem concluslvely depar The plaintiff IRON
any right that ne claims, TO enJon the deena-
ants from constructing and opening their railway
without prepay OF sucn damages as may ensue TO
HIM therelrom any claim 10 damages whatever ny
reason OF any Inconvenience or detiiment
accustomed his premises arising from the construc-
tion and by tho defendants In tronuSof
his premises authorized under said act Of June ~,
1875 For these the defendants are entitled TO
Judgment III their favor Diminishing the complaint upon
the iuvrIts, with costs"