Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-07-02
teenth Amendment. judgment affirm
L. & w. II CO. V. BUF-
EALO.
Court of Appeals of New York.
February %, 1899.

Court of Appeals of New York,
February IS, 1899.
A CITY MAY FoRCIBLY REMOVE
AN OBSTRUCTION FROM a
STREET, AND ITS COUNCIL CAN
NOT SURRENDER A STREET.
WHOLLY OR PARTLY, TO THE
USE OF A RAILROAD.
THE RIGHT OF A RAILROAD TO
CROSS a STREET WITH THE AS
SENT OF THE CITY. DOES NOT
AUTHORIZE 1T TO OBSTRUCT
THE STREET BY ABUTMENTS
TO SUPPORT IT'S STRUCTURE TO
THE GREAT INCONVENIENCE OF
THE PUBLIC.
This was an application by the plain
tiff railroad company for an injunction
against the City of Buffalo to restrain
1t from removing It's abutments on
Main street. The railroad crossed
Main street at an elevation of about -
feet above its surface and it's structure
rested upon abutments in the street
which occupied about one-half of 1t.
The Council OF the city directed its
Street Commissioner to notify the COM
pany to remove these abutments and
IL 1t did not do so within % days. to
remove them himself The Council of
the city had granted permission 10 the
railroad company to cross Main street.
the crossing 10 be by bridge with
span the full width of the street. The
lower court refused to grant the
injunction asked for ana the railroad
company appealed.
The court says
1t is urged By the learned counsel for
the plaintiff that the city authorities
riIh farafi,IN is
structure over the street. That de-
Ponds upon the question whether Ii
was or WAS not IN encroachment upon
the public right and an obstruction. If
It was, the city had the right TO re-
move IT.
The learned counsel for the plaintiff
-cAntanda that. since the structure has
the sanction OF Iegtsf;tttte- .r1ryi rIJrITtci-
Pal authority. 1t cannot in Law be an
obstruction or q nuisance which the
Common Council may remove. The as
seItion that this bridge has the sane
ton of legislative authority is not quite
correct. 1t Is true that railroad COM
panies arc authorized to construct their
roads across. along. or upon any street
or highway in n city with the assent
of the municipal authorities. That is
simply general authority 10 cross
streets. win the consent of the local
authorities. Nothing less than express
authority 70 place these distractions in
the street will shelter The plaintiff from
the consequences Of creating a NUS
ance BY the obstruction of public
highway.
1t is equally clear that the plaintiff
cannot Justify the occupation Of the
street unon the ground that the NUM-
cipal authorities originally consented
to tho erection of the structure The
Common Council Of the city has no
power gll,.IpDIf, n
the use of railroad corporation. All
II had the power to do was To CON
sent 10 the crossing, and the same law
winch authorized n consent imposed a
duty upon III" company to restore the
street to its former state or to such
state as not to have unnecessarily i'm
paired It's usefulness. Ii had no more
power to surrender half Of the street
to the use of the nlaintin than it had
to surrender the whole Of it,
IL is cutie sufficient to say, there
fore. that the municipal authorities. in
the exercise of the power to permit
railroads 10 cross streets. are not au-
thoriLcd To surrender to the railroad the
exclusive use of Il cOnSiderab BILE portion
of the street for the erection ana main
tcnance Of abutmerts aud piers to sus-
tain an elevated structure Moreover.
when the proceedings of the Common
Council are all read together they are
not oren TO the construction put upon
them by the lear1ed counsel for the
plaintiff: 1t is quite plain that the
governing body in the city never gave.
It's consent 10 The erection of the par
ticnlar structure now coinplained Of.
The Judgment should. therefore be
affirmed with costa.
= Keen in ,nind-:a rrae.i.s tnllored by
Rudolph & Wallace are the best.