The New York herald., 1878-01-15
RAPID TRANSIT.
The Gilbert Elevated Railroad
Again Victorious.
JUDGE SANFORD'S DECISION
Rights OF the Public ~tO City
Streets Affirmed.

Ono of the last, II not tho only injunction suit
which lately retarded rapid transit on the SIKH
avenue side Is that OF the Sixth Avenue Railroad
Company The Gilbert Elevated Railroad Company
which has been pending in the Superior court ior
nearly year. On the trial which was had before
Judge Sedgwick IN the Superior Court, Special Term,
numerous counsel heard and elaborate briefs
submitted. Messrs. G. p. Lowery, Charles francis
Stone ana John X. Porter represented the Giloert
company and Messrs. Joseph H. Choate and ex-Juoge
Comstock the Sixth avenue company IL VIII 10 re-
memberod that Judge Sedgwick gave Judgmentio the
plaintiffs on some of the questions involved, ana
hence tho appeal which was yesterday decided ny
the Superior Court, General Term, Judge SANFORD
writing the opinion, and reversing the judament VI
Judge Sedgwick.
THE PAcTs THE CASE
The judgment appealed from epjoins tho Gilbert
company nom building their road upon Sixth avenue
from West Third street to Fifty ninth street. Upon the
trial IL appeared that paintin was duly ncorpor-
aed under the general of 1885, ana that Tor more
Than years 1t has owned and operated double
track horse railroad through Sixth avenue from West
Third street the Central Park at West Fifty-ninth
street, also that during :he same period 1t has
owned in fee certain lots OF ground, with buildings
and improvements thereon fronting on SIKH avenue.
1t further appeared that the defendant was iDcorpor
ated by special passed June IL 1872 ana thereby
such streets avenues should BIO designated by
certain commissioners. Such commissioners desg-
mated route which extends through sixth avenue
from West Third Finy-ninih street. In June,
1876, what Is generally known as the Rapid Transit
Rct was passed, which authorized tho construction
OF elevated road through certain streets upon GER
tain terms and upon consent OF the property owners
local authorities, or, IN case such consent could
not be Obtained then upon decision OF commissioners
appointed by Tho Supreme Court TO the eject that
such railroad ought TO be constructed. Under that
act OF the streets and the right OF through
the same for the purpose OF such railways is thereby
declared to bo public use coincdcnt with the uses
for which streets, avenues. &C., are publicly held
Tho thirty section OF the act relates especially
To the construction of such railways thus
thorized built routes coincident with horse
railway tracks occupying the surface OF the street,
and coniers certain powers and privileges incident or
necessary TO such construction and thereupon also
roniers upon existing corporations, formed for
the purpose provided by the act and whose
routes, according To their charters, are colnci-
dent with routes determined upon by commissioners
pursuaIa 10 It's provisions, ike power TO construct
operate such railways as corporation specially
fornea under the act upon iuihlment OF the require
ments and conditions imposed pursuant Thereto
Under the PROVISIONS OF this act an elevated railway
route coincident win that oil the defendant, as pre-
scrDed by Its quarter. was liked and laid out, and
thoreuion tho defendant, claiming authority SO 70
DO under and by virtue Of the Legislation aud pro-
ceedngs above mentioned, undertook To construct nn
elevated railway through sixth avenue between West
THIRD and FIty-nintn streets, and proceeded there
with until informed ny the order and hnaiiy by the
judgment OF the Court Upon the trial ut Special
Term 1t claimed ana insisted by the paintif
that the Rapid Transit oi 1875 upon when
the defendant relied rs constituting It's authority
10 buiId the road upon the plan prescribed by The
missioners Invalid, being uncons,it tutional.
Judge wick before wnom the trial held, held
the thirty sixth section OF the Rapid Transit act
was and VOID; that the defendant had
authority Ia law 10 construct us proposed railroad
either oy virtue o It's charter or the PROVISIONS oil
that and, accordingly, that tho painti was cn-
titled TO perpetual inJuncton restraining the defend
uut lroai building sucn raiiway. Judgment was Gu
tered accordingly, aud defendant appealed.
JUDGE sAKFoRD's OPINION.
Judge Sanford writes lengthy and elaborate opin.
lou, IN which he nolds that the Court OF Appeals
several have already held the RAPID Transit
obnoxious in wnoic IN part
The constitutional objections urged against its
validity, and that under IT the defendant has
perfect right anu lawful authority to build over the
route, including sixth avenue, and that, therefore,
the judgment canno be sustained ON that grouEd He
next takes up the question OF the plan1's claim to
properly nights, both in It's existing railroad and
franchises and also incident or appureEant TO It's
lands a0utung on sixth avenue, the beneficial enjoy
iIenL whereof II rs claimed, VIII be destroyed
paired by tho construction OF tho road. IL Is urged
that tns properly projected by the constitutional
prohibition against taking private property for public
uses without compensation, that the appraisal aud
payment oil compensation Is condition precedent to
The building of the and that They entitled
injunction unIl such compensation is paId. Judge
Sdnuru, discussing this point nolds that The
shows such aud partial destruct of the
paiutIn road and franchise entities compen
ier The constitutional provision the pro-
lection OF private property proposed to taken for
pubic use IN The exercise Of the right of eminent
DOMAIN. Legislative authorization OF parallel and
competitive railway Involves appropriation de-
pTivuton OF vested rights and franchises OF rail-
way already constructed, and Is not oi
rignt OF eminent DOMAIN. Any loss damage sus.
taned by OF the competition OF such lawfully
auinorzed Railway Is ddAntai abSquc ityiurtG, for
which compensation DO required Private
property cannot sud TO be taken public
the exercise OF eminent domain merely because It's
value IS impaired by the proximity OF other property
lcgimaieiy employed Tor the puDlc use ana Ucncht
under the sanction and by the authority OF losisa-
tvo enactment AS 10 the claim oi the palutin
" compensation as al abutlng owner the Judge
hoids that such right exists and that the question
has already been settled by numerous DECISIONS Ia
concluding his opinion Judge Sanford says:-..rhe
elements OF interest and irreparaDc injury which
essential 10 the Invocation oi equitable interposton
by Injunction wanting any claim of the PLAIN
iii with respect to merely tnat part of defendants
Route which intersects Broadway, aud do not
understand counsel rs claiming anything by Of
this particular objection unless II bc held inval-
date the authority. ol the defendant with respect
the whole OF sixth avenue
ave are OF opinion that the judgment cannoI be
upheld either upon this or the other grounds urged
In support OF IL. Ii must therefore, be reversed
new trial ordered, wia costs to appellant tv ABIDE
the event"