
    People ex rel. Third Ave. Ry. Co. v. Newton, Commissioner.
    
      (Supreme Court, General Term, First Department.
    
    May 18, 1888.)
    1. Horse and Street Bailroads—Charter and Franchises—Bight to Lay Cable BETWEEN ITS BAILS.
    A company having, by agreement with the city, acquired the right to construct and operate a horse railroad, is not entitled to make excavations along its route for the purpose of laying cables between the rails of each of its tracks, as that would he subjecting the streets to an additional servitude not contemplated by that agreement.
    2. Same—Agreement not to Propel Cars by Steam—Cable Cars.
    The construction and operation of a cable road by a company which had, under an agreement with the city, acquired the right to construct and operate a horse railroad, is a violation of the provision of that agreement that no steam-power was to be used on any part of the road for propelling cars, although the cars are propelled by a cable, the movement of which is communicated by steam generated by an apparatus situated off the street and on private property.
    3. Same—Bight to Build a Different Boad from that Contemplated.
    Under an agreement with the city, the company acquired the right to construct and operate a horse railroad to be constructed in a particular manner, with a particular rail, the construction to be commenced within six months, and completed to a certain point within a year, and from that point as fast as the avenue on which it was to be constructed should be graded and in a proper condition for laying rails. Held, that the company having exercised the power thus conferred, and completed the road, no power remained in it to construct an entirely different road, such as a cable line.
    
      4. Same—Powers Granted by City—Enlargement by Construction.
    A company having, by agreement with the city, acquired the right to construct and operate a street railway, provided that no steam-power was to be used on any part of the road for the purpose of propelling cars, this agreement is not to be amplified by the construction of the court, so as to permit the exercise of any powers not granted by the terms of the agreement.
    5. Same—Franchises Granted by City—Limitation by Terms oe Agreement.
    ■ A corporation having acquired the right to construct and operate a horse railroad under an agreement with the city, which was confirmed by the legislature, does not, by virtue of its incorporation under the general railroad act of 1850, acquire any greater franchise from the city, and can claim no greater rights, than those conferred by the agreement, and is bound by its limitations, without regard to the power which it might have under the general railroad act.
    Appeal from special term, New York county.
    An order was entered, on motion of the relator, the Third Avenue Railway Company, for a peremptory mandamus to John Newton, as commissioner of the department of public works, directing him to give the relator a written permit to begin and continue excavations in the street along its route for the purpose of laying cables between the rails of each of its tracks, from which order the defendant appeals.
    
      James C. Carter, for appellant. John E. Parsons, for respondent.
   Van Brunt, P. J.

The question involved, in this appeal depends upon the rights which the Third Avenue Railroad Company has acquired by their organization under the general railroad act, and by the grant or agreement between the city and the company legalized by the action of the legislature. The Third Avenue Railroad Company claim the right, under their charter and agreement, to begin and continue excavations along their road for the purpose of laying cables in each track between the present rails, these cables to be moved by stationary engines situated out of the line of the street. Such excavations are to be several feet wide, and several feet deep. The appellant claims that the railroad company has acquired no right or power to make any such excavations—First, because it would be subjecting the streets to an additional servitude not contemplated by the agreement between the city of New York and the railroad company; second, because it is provided by said agreement that no steam-power be used on any part of the road for propelling cars; and, third, because the power to build a road has been exhausted, and anew road cannot now be constructed. It seems to be very evident that an additional servitude would by this structure be imposed upon the streets, which was not contemplated by the grant or agreement between the Third Avenue Railroad Company and the city. It was in the contemplation of the parties, that a railroad should' be constructed in the Third avenue, the cars to be propelled by some motive power other than steam; but it was not intended that the railroad company should have the right to excavate and maintain a deep trench in the street, with numerous vaults in such trench deeper than the trench itself, and occasionally vaults of much larger dimensions, for the purpose of operating the cable to be placed therein. The license or grant conferred by the agreement was to lay a double track for a railroad. It was not contemplated that storage room for the motive power which was to be used upon said road should be provided in the streets. Buildings of this character have no connection 'whatever with the laying of a trench for a road; but they are provisions for the operation of a road the construction of which upon the public streets was not at all contemplated by the terms of the grant in question.

The provision in the agreement that no steam-power was to be used on any-part of the road for propelling cars seems also to be equally fatal to the claim of the railroad company. This objection is attempted to be answered by the claim that the cars are not propelled by steam-power, but by a cable, the movement of the cable being communicated by steam, the apparatus for generating which is situated off the street, and upon private property. The fallacy of this claim seems to be illustrated when we consider that, if the same reasoning is applied, a locomotive is not propelled by steam. The only part of the machinery which is propelled by steam is that part of the piston which comes in direct contact with the steam in the cylinder of the engine. The locomotive is propelled by the motion of the driving-wheel. It is true that the motion is communicated to the wheel by the movement of the piston in the cylinder; but it is no more the motive power, imparting motion to the engine, than is the cable to which the cars are attached, and to which motion is imparted by its connection with the steam-engine. Or, to use another illustration, it may be said that upon what is called the steam-railroad, none of the cars are propelled by steam, because the power is communicated to them by the coupler which attaches them to the engine; and, as a conclusion, as the engine is not propelled by steam, certainly the cars are not, if this reasoning is correct, and then no cars on any steam-railroad are propelled by steam. There must be some motive power for propelling the cars. What is that motive power? The cable, of itself, is no motive power. It is an inert mass. Its motive power is required to be communicated to it. This is done by steam, precisely the same as the motive power is communicated to the car from the steam contained in the,engine upon the steam-railroad; the car being propelled by steam. That is the motive power which is used for propelling the cars, and it is entirely immaterial as to whether the coupler is a link or a chain. The chains may be from the Harlem river to the Battery, but the motive power which propels the cars attached to that chain is steam, and the propelling power is used upon the road, no matter where the steam may be generated. But it is claimed that, although the power may be steam, yet no steam is used upon the road, and it is the use of steam upon the rdad that is prohibited. The language of the prohibition is that no steam-power be used in any part of the road for propelling cars. It is not that no steam shall be used on the road for propelling cars, but that no steam-power shall be used for that purpose; or, in other words, no steam shall be used as a motive power on any part of the road. As has been seen, the propelling power is undoubtedly steam; and it is upon the street that the power is applied, the cars being propelled on the street; and, as the motive power is steam, steam-power is used on the street for the propelling of the cars. Suppose a tenant should take a lease of a building which contained a covenant against the use of steam-power in any part of the building leased, and then should place a boiler and engine in an adjoining building, and by belts, pulleys, and shafts carry the power into the building leased, and use the same for the purpose of propelling the machinery therein, would not such use be a breach of the covenant? Clearly so.

The third ground which has been suggested on the part of the appellant herein as being fatal to the claim made by the Third Avenue Railroad Company, the respondent, is that the power conferred by the agreement between the company and the city was to build a railroad; and that, the road having been built, the company cannot now, under that power, build a new road upon an en tirely distinct and different principle. The railroad company would have a right, undoubtedly, to repair the road which they had already built; but after having determined the character of the road which they were to build, and having built such a road, they cannot now begin an entirely new enterprise, and enter upon the construction of a new road. A consideration of the terms of the agreement greatly strengthens this point, because the road was provided to be constructed in a particular way, with a particular rail, or such other as might be approved by the common council and the street commissioner, and the construction was to be commenced within six months, and completed to Forty-Second street within one year from the passage of the resolution; and from Forty-Second street to the Harlem river as fast as the Third avenue should be graded and in a proper condition to lay rails thereon. Here was a manifest restriction as to the power of the Third Avenue Railroad Company to construct this road. They were bound to construct it with diligence to Forty-Second street within a limited time, and to construct the balance as soon as the street was in condition for the purpose of laying the rails. They having exercised the power thus conferred, and, having built the road, there remains no power in the corporation to construct an entirely different road which in no way complies with the conditions required.

In consideration of the rights which have been conferred by the legislature, the respondent company seems to claim that the ground is to be taken most favorable to the railroad company. We think, however, that this is not the construction to be placed upon the acts under which the respondent claims. Unless it can be shown that the power it claims has been granted to it by the terms of the grant, such grant is not to be amplified by the construction or legislative action of the court. The claim that the exception in respect to steam-power refers to the use of locomotives or dummy engines is not supported by the language of the agreement. It certainly was not contemplated in this agreement that the Third Avenue Railroad Company should have the right to occupy just so much of the street as it pleased for the purpose of the operating of its road. If the company have the right to occupy four feet deep throughout the length of the road, and nine feet wide, there is no reason why they may not claim, if it becomes necessary or useful for them in the operation of their road, that they can occupy thirty feet deep. It is a question of right, not of expediency. It may be true that the city would be benefited by the operation of a cable road instead of one operated by horse power; but this is a consideration which cannot be given force to in the construction of this grant, because the court has no right to confer rights by this decision which have not been conferred by legislative action. It seems to be clear that this would be imposing additional servitude upon the streets, not contemplated by the grant, which it was not intended the company should enjoy, and also that the power uséd for propelling these ears is steam-power, which is excluded by the very terms of the grant itself.

. The fact of incorporation under the general railroad act of 1850 conferred no authority upon the respondent to construct its road upon any street in the city. That power it derived from another and different source,—from the ratification of the agreement between the city and the railroad company by the legislature; and its sole authority to act in-the building of its road was derived from that legislation. It existed as a corporation because of its incorporation under the act of 1850, and it acquired the right to exercise its franchise by reason of the agreement, and the legislation legalizing the agreement. It therefore acquired no greater franchise from the city of JSTew York than that which was conferred upon it by this agreement thus legalized, and can claim no greater rights than those conferred upon it by that agreement, and are bound by its limitations, no matter how extensive its power might have been under the general railroad act.

We are of opinion, therefore, that the order appealed from should be reversed, and the motion denied, with costs.

Bartlett, J.

I concur on the ground that the proposed construction would impose an additional and unauthorized burden or servitude upon a public street.

Brady, J., concurs. .  