
    The Rochester, Hornellsville and Lackawanna R. R. Co., App’lt, v. The New York, Lake Erie and Western R. R. Co. et al., Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed March, 1887.)
    
    1. Railroads—General railroad act—Rights of company complying WITH CONDITIONS OF ARE VESTED AND EXCLUSIVE.
    This plaintiff was organized for the purpose of building and operating a railroad, and surveyed and located its route, and upon the same day made and filed a map of the same, duly certified by the proper officers of the company, as required by the general railway act, and caused the proper notices to be served upon the land-owners over whose lands the road was located, and confirmed the location as required by said act. The intention of the plaintiff was to complete its road and put it in operation as soon as practicable. He d, that the plaintiff had acquired a vested and exclusive right to build, construct and operate a railroad on the line adopted by it, subject to the right of other railroad companies to cross its route and lands' in the way and manner and for the purposes provided by law.
    3. Same—Rights are exclusive—Another road cannot be constructed OR OPERATED OVER SAME ROUTE.
    
      Held, that, although not so expressly declared by the statute, the privilege of the plaintiff was an exclusive one, and that another road could not be constructed and operated on the same location.
    3. Injunction—Will be granted to protect party from interference WITH STATUTORY RIGHTS.
    . It is a general rule that an injunction will be granted, securing to a person or corporation the enjoyment of a statutory privilege, of which the complaining party is in actual possession, unless the right is doubtful.
    4. Same—Will be granted to protect rights gained under general RAILROAD ACT.
    
      Held, that an injunction would be granted pendente lite restraining the defendant from constructing or operating a road over any portion of the plaintiff’s route.
    Appeal from an order of the Monroe special term dissolving an injunction restraining the defendant from placing obstructions upon the line of the plaintiff’s road as located.
    
      Frank S. Smith, for app’lt; James H. Smith, for resp’t.
   Barker, J.

The special term, in dissolving the injunction, held that, as the plaintiff had not acquired the right of way for the purpose of constructing its road over the locus in quo by purchase from the owner, or by having the same condemned by proceedings instituted for that purpose under the statute, it had no right, estate or interest on on which a court of equity can take cognizance, and by injunction restrain the defendant corporation from doing the act complained of. This ruling goes to the merits of the plaintiff’s case as set forth in the affidavits. The court must also, in reviewing the order appealed from, consider the legal proposition which lies at the foundation of the controversy.

This action is on the equity side of the court, to restrain the defendant corporation from laying down its tracks upon or across the route surveyed, located and adopted by the plaintiff upon which to construct its road between the termini mentioned in its articles of incorporation. The preliminary injunction, which the order appealed from vacated, was in terms co-extensive with the prayer for relief demanded in the complaint. The question presented is a very important one, which has not been much considered in the courts of this state, and involves the inquiry as to the nature and character of the franchises which are conferred upon railroad corporations organized under the general railroad act, and to the extent which courts of equity have jurisdiction to control the action of existing companies, when they purposely and designedly, and in bad faith, attempt to hinder and delay the construction of another road, which, when completed, becomes a competing line.

The plaintiff corporation was organized June 9, 1886, for the purpose of building and constructing a railroad commencing in the village of Canisteo, in the county of Steuben, and terminating at a point in the line of the Lackawana and Pittsburg R. R. Co., in the town of Burns, in the county of Alleghany, via. the village of Hornellsville, which is also in the said county of Steuben.

The plaintiff surveyed and located its route, made and filed a map of the same, duly certified by the proper officers of the company as required by the twenty-second section of the said act; it then caused the proper notices to be served on the land owners over whose lands the road was located, and the line so adopted has never been changed in any proceeding instituted for that purpose; and before this action was commenced the location was confirmed by virtue of the other provisions of the said section. In the village of Hornellsville the plaintiff’s route is for some distance along and beside the lands of the, defendant corporation, upon which is located its tracks, and the locus in quo is upon lands of which the defendant Babcock is the owner in fee. The plaintiff has acquired the right of way for the greater portion of its entire line, and is in good faith and with due diligence proceeding to complete and put its road in operation. Adjacent to Babcock’s land on the side opposite from the defendant’s tracks there is in operation a brick-yard, the proprietors of which are accustomed to ship a portion of the bricks made by them on the defendant’s railroad at. the station in Hornellsville. After the defendant was served with notice of the plaintiff's proposed route it took a lease from Babcock for the period of three years of a piece of land between its road and the brick-yard; the plaintiff’s road bed, when constructed, will be on the same grade as the defendant’s tracks, and the road bed to a point abreast Babcock’s land.

On or about the 20th of August, the defendant constructed a switch from it tracks over Babcock’s premises and across the plaintiff’s line. During the night of the same day, the plaintiff caused the track, so far as it was laid upon its line, to be torn up and removed, and laid down a section of track about ninety feet in length and placed rails thereon, which were not connected with any of the tracks then laid upon its road bed; and procured and served an injunction restraining the defendant from interfering with or placing obstructions upon its road bed. It was disregarded, and on the same day, the defendant’s agents and servants tore up and removed the section of track laid by the plaintiff.

The plaintiff had not purchased the right of way over Babcock’s land, nor had it instituted any proceedings under the statute for condemning the same. This action was commenced August 21, 1886. It is not a question in dispute, but what it is the intention of the plaintiff in good faith and as soon as it is practicable to complete its road and put it in operation.

We are also of the opinion, that it is fairly established by the facts disclosed in the affidavits and the history of the proceedings, and the declarations of the defendants’ agents and managers that its action in taking the lease from Babcock in constructing the switch was maliciously and in bad faith, and for the purpose of hindering, annoying and delaying the plaintiff in the completion of its road. Of course this expression of our opinion as to the defendants’ motives is upon the case as now presented and will be no guide for the court when the case is tried upon the merits, and the facts must then be determined upon the evidence presented.

If we are correct in our conclusions as to the facts which we considered fairly established by the affidavits, we think the plaintiff made a case for the allowance of the preliminary injunction and that the same should be continued pendente lite.

Under the general railroad act, when a corporation has been organized in compliance with the conditions of the statute, and has made a map and profile of the route intended to be adopted by the company, duly certified and filed as required by the twenty-second section, it has acquired a vested and exclusive right to build, construct and •operate a railroad on the line which it has adopted, subject to the right of other railroad companies to cross its route and lands in the way and manner and for the purposes provided by law.

The general termini and route must be stated in the articles of association, but the location in other respects, including the precise termini and the intermediate points, the legislature has left to the election of the company, after it has surveyed and ascertained which is the most feasible line; and the exercise of its discretion when it acts in good faith and within the limits of the powers conferred upon it, can be reviewed by the courts only on the application of an aggrieved person, over whose lands the road is located, as provided in the said section 22.

In this case Babcock petitioned for a change of the route, but his application was defeated. The plaintiff has a franchise conferred upon it by the legislature to construct its road over the established line.

The first and important inquiry is, has the defendant invaded this franchise secured to the plaintiff in such a manner and to such an extent as to confer upon a court of equity jurisdiction of the subject matter, and justify the granting of a preliminary injunction restraining the defendant from carrying into execution during the pendency of the suit its declared purpose to hinder and delay the plaintiff in the construction of its road and the enjoyment of its franchises. The general rule is, as established by the decisions of courts of equity jurisdiction, that an injunction will be granted, securing to the person or corporation the enjoyment of a statutory privilege of which the complaining party is in the actual possession unless the right is doubtful; if the right plainly exists and has been invaded, the proper and specific remedy, that which will prevent a continuance of the invasion, is by injunction, and this can be decreed only in equity.

We think the plaintiff has made a case against the defendant corporation which comes within this rale; the facts are not left in doubt, nor are they complicated. The plaintiff's rights depend upon the construction of the statute under which it was organized that the plaintiff’s franchise is exclusive so far as the right to construct a railroad on the fine which it has adopted must be conceded as another road, cannot be constructed and operated on the same location, although the statute has not declared in express terms that the privilege is an exclusive one, it would lead to endless contention and disastrous disturbance to hold otherwise, and give the statute a different construction. In Osborn v. United States Bank (9 Wheat., 740, 841), the court, in speaking of the powers of a court of equity in this class of cases, remarked, “The inference of the court in this class of cases has most frequently been to restrain a person from violating an exclusive privilege by participating in it. But if, instead of a continued participation of the privilege, the attempt be to disable a party from using it, is not the reason for the interference of the court rather strengthened than weakened? ”

In Croton Turnpike Co. v. Ryder (1 Johns. Ch., 611), the chancellor, after stating that the defendant’s action was a material and mischievous disturbance of the plaintiff’s franchise, granted to it by the legislature for public purposes, declared the jurisdiction of the court over the case to be complete, and added: “It is settled that an injunction is the proper remedy to secure to a party the enjoyment of a statue privilege, of which he is in the actual possession, and when his legal title is not put in doubt. The English books are full of cases arising under this head of equity jurisdiction. * * * The equity jurisdiction in such a case is extremely benign and salutary. Without it, the party would be exposed to constant and ruinous litigation, as well as to have his right excessively impaired by frauds and evasion.”

Most of the writers on the subject of equity jurisprudence assert jurisdiction in this class of cases. Story Eq., § 927; Livingston v. Van Ingen, 9 Johns. R., 507; Tyack v. Brumley, 1 Barb. Ch. R., 519; Boston and Lowell R. R. Co. v. Salem and Lowell R. R. Co., 2 Gray, 1; High on Injunction, chap. 15, § 897; Plank Road v.Douglass, 12 Barb., 553; Livingston v. Ogden, 4 Johns. Ch., 48.

A franchise is a branch of the sovereign power of the state subsisting in a person or a corporation by a grant from the state. So long as the privilege bestowed on the grantee continues to exist all other persons and corporporations are under the most solemn obligation, as a duty which they owe the public, to observe the franchise and forbear from interfering with its enjoyment. All franchises are supposed to be for the public good.

If the state was engaged in constructing a railroad on the route in question, in pursuance of a legislative enactment, no one would doubt but that the state could invoke the protection of the courts by restraining all persons from interfering with its purpose. We think the plaintiff, in its charter and the provisions of the statute authorizing its creation, may invoke the same degree of protection from this court. In some of the other states the question now before us has been considered and passed upon, and the decisions •of these courts be cited in of the which we entertained. In T. C. and P. R. R. Co. v. W. & V. R. R. Co. (12 Phil. R., 642), application was made by the plaintiff for a preliminary injunction restraining the defendant from constructing its road upon and along the line which the plaintiff had previously adopted or from interfering with such located line.

The injunction was granted, the court being of the opinion that the plaintiff’s line was first located in the manner required by the statute of that "state and that the defendant’s action was an invasion and interference with the plaintiff’s-franchise. The remarks of the court as to the plaintiff’s privileges are so pertinent to the case before us that we-quote them in this connection: “Clearly, when a railroad company has ascertained and located where its rqad shall be, it is not competent for another company to step in and take its route, agreeing with the owners and occupy the land. The selection and location of the route secures the title of the first company to that route which it may carry to completion "without disturbance by another.”

In the case of Contracosta R. R. Co. v. Moss (23 Cal., 323), the same question was considered and the court there remarked: “It is clear that one railroad cannot locate its line along or upon the previously located line of another company, nor can it condemn or appropriate land along or upon the previously located fine of another railroad company, except when it may be necessary for one railroad company to cross another. Lands, located by a company who are proceeding in good faith and with reasonable diligence in the construction of their road, cannot be taken from them under these proceedings and appropriated by another company for railroad purposes. By its priority of location and appropriation the first company locating its fine of road and the land necessary for its construction as provided by law, cannot be divested by another company who seek to appropriate the land to the same use.”

If the defendant is permitted to carry out its threats to construct and to keep down its tracks over the plaintiff’s route, it is obvious that it will be a serious invasion of the plaintiff’s franchise and will tend to interfere with the construction of its road and embarass it in acquiring the right of way over Babcock’s land.

It is equally clear that the plaintiff is in the possession of a franchise granted to it by the state, and that its right to* the enjoyment of the same is clear and beyond all doubt. It possesses the franchise of power under the law to acquire the right of way by purchase or condemnation, and the defendant’s past action and threatened action must necessarily tend to embarass the plaintiff in securing the right, to construct and operate its road over the land owned by Babcock. The court is warranted in reaching the conclusion, that as matter of fact, Babcock and the defendant have conspired to hinder and delay the operations of the plaintiff. The purpose of the general railroad act is to favor and facilitate the construction of railroads for public convenience and use, and an existing railroad corporation whose franchises and privileges are based upon the same statute, should not be tolerated in the least in any action, movement or purpose to defeat or delay the construction of other railroads. Every attempt to do so should be promptly met and condemned, and the proper process in an appropriate case, should be unhesitatingly granted for the protection of an aggrieved party. As to the defendant Babcock, the injunction was properly dissolved, as he was owner in fee of the land, and until the plaintiff acquired the right by purchase or otherwise to construct its railroad upon his land, he rightfully remained in possession of the same, and could use and occupy, or sell or lease the same ■without any restraint arising from the location of the road over his premises.

The case of the Corporation of New York v. Mapes (6 John. Ch. R., 46), cited in the opinion of the learned judge who presided at the special term, is in point in sustaining the dissolution of the injunction as to Babcock, but is not as we can see an authority vindicating the action of the defendant corporation.

So much of the order as vacated the injunction against the New York, Lake Erie and Western Railroad Company is reversed, with ten dollars costs against and disbursements to be paid by that company to the plaintiffs, and the rest of the order is affirmed, with ten dollars costs and disbursements to be paid by the appellant to the respondent Babcock.

All concur.  