The sun. [volume] (New York [N.Y.]) 1833-1916, 1878-07-07
The Metropolitan Elevated Railway.


1t seems a very thoughtless thing in the
Legislature to authorize the Elevated Rail-
way without subjectng 1t TO any restrain
ing power OF the city Government. Now that
II has become such an evil to the jewellers
along the Sixth avenue'and the other great
thoroughfares on which 1t is located, the
question arises what can be done. Jncor-
porated capital ls a stubborn animal to deal
with, but the lives and comfort Of thousands
are at stake. The physicians have done
well in taking the matter in hand.
The legal aspects OF the matter are not
such as to preclude all hope of relief. 1t is
true that in the Elevated Railway act there
is a vague and doubtful import, in which
the use Of the streets as routes for the con-
templated railroad Is declared to be use
consistent with their use as public Streets
but this concerns only the surface OF the
ground. over which the public traffic passes
in the ordinary public use Of street. More
over, the Court OF Appeals, in upholding the
act, limited its sanction OF the road TO the
enacted consistency between the public use
OF the street and its use as a place for the
support OF the proposed structure. The
Court decided nothing with regard TO the
injury Of private property abutting on the
streets. but expressly reserved all questions
relating to private rights.
That an owner or occupant OF a house is
entitled to be protected from intolerable
noises In front OF his windows during the
hours Of the night every one will admit. In
the present case the evil is palpable, and its
consequences are fearful. There can be no
sleep in rooms in front OF which a railroad
train Is run every five minutes; and sleep is
a condition Of health TO the well and OF re-
covery to the sick. II is Il positive disgrace
TO our civilization that such a nuisance, so
easily to be foreseen. and OF such a magni-
tude, has been allowed to come upon us and
TO obtain a seeming legality under the sane
ton Of a legislative grant
The corporation can be indicted at COM
mon law for a nuisance, and the question
can be tested in that form, whether the
Legislature has granted or could grant
authority to this corporation to render
whole streets OF houses uninhabitable,
to whose owners they have never paid
or offered to pay one penny OF compensa-
ton. But II a conviction were obtained.
probably the corporation could only be
fined and the fine would be paid. II pro-
cess for the abatement Of the nuisance could
issue, after the conviction, then the question
would arise whether the road is to DO taken
down or the running OF trains is to be con-
fined to certain hours OF the day. But there
are hours in the daytime, and at all times,
when the noise Is a great annoyance, and
that annoyance Is as yet uncompensated.
We are inclined to believe that private
suits by persons who are injured for the pur-
pose OF obtaining the interference Of the
courts, would be the better remedy; because
they would afford a more direct mode Of
raising the question OF private injury and
because they would present that question
in various aspects But in some way that
question must come; and as the Legisla-
ture has been 80 careless in making its
grant, it will be the more incumbent on the
judiciary to be firm and clear in the asser-
ton of private rights.
We are sorry for the railway corporation
which finds itself confronted with this great
difficulty. But it was difficulty which they
should have foreseen: and, above all, they
should have been more cautious In in
vesting their money in an enterprise which
was to come into conflict with the very ne
cessitles Of existence for multitudes Of peo-
Pile, before they put their machinery into
such an operation as would inevitably make
that conflict one of an extreme character.