
    The Western New York and Pennsylvania Traction Co., Plaintiff, v. Frank V. R. Stillman, Defendant.
    (Supreme Court, Allegany Special Term,
    July, 1910.)
    Highways — Creation, requisites and incidents — Public rights in highway— Moving buildings.
    Street railways — Street railway companies, their franchises and right to use of streets — Franchise and right to use streets — Right not exclusive.
    The property rights of an electric railway company in a street are subject to the rights of the public to use the street for all reasonable purposes.
    In the absence of legislative enactment, an individual has a common law right to the reasonable use of the public streets and highways for the purpose of moving his buildings along or across the same.
    Where it appears that for many years it had been the usual and customary practice to use the streets of a city for the purpose of moving buildings; that many buildings had been moved across the tracks of a street railway company which raised or lowered its trolley and span wires as necessity required, its rights in the streets are subordinate and subject to the rights of an individual to whom by ordinance the city-has granted the privilege of moving his building; and a temporary injunction, restraining such moving, will be denied, upon condition that the defendant pay all expenses and damage incurred by the railway company in raising or lowering its wires and comply with the provisions, of the ordinance granting him the privilege of moving his building.
    Motion by defendant to vacate an injunction.
    
      C. G. Bullis and George A. Larkin, for plaintiff.
    Dana L. Jewell and Creighton S. Andrews, for defendant.
   Brown, J.

It is the contention of the plaintiff that, under its franchise to maintain and operate a street railway in the city of Clean by the trolley system, it has a vested property right to occupy the streets to maintain its trolley and supporting wires seventeen feet above the pavement, which is indestructible, paramount and superior to the rights of all others; that it cannot be compelled to raise or lower such wires to permit the moving of a building; that the moving of a building thirty feet high, which would collide with such wires, is a trespass; that the raising or the lowering of such wires or the cutting of the same, so as to permit a building to cross its tracks, would produce such an injury to its trolley wires that it could not be replaced in as good condition as before; that the common council of the city of Clean had no authority to grant a permit to the defendant to move his building along or across the streets which would necessitate any interference with plaintiff’s wires. To prevent such trespass and injury the defendant is restrained by the temporary injunction herein.

It is the contention of the defendant that the franchise of the plaintiff secures to it the right to occupy the streets of the city of Clean for the purpose of its business, subject to the right of the public to use the street in a reasonable manner; that such reasonable use includes the right to move buildings across such tracks and along the streets; that for many years the plaintiff has raised or lowered its wires for such purpose, upon being reimbursed the expense incurred, and that .such expense is trifling and no damage has resulted.

In moving defendant’s building from its present location to its contemplated site, it will necessarily .pass under five span wires on the west side of Union street which support plaintiff’s feed or trolley wire, and at the junction of Union and Henley streets the building will pass under the trolley wire extending into Henley street for one block. It has. been established by the many affidavits presented that the handling of these wires by competent electrical linemen, so as to permit the moving of the building along Union street and into and through Henley street to defendant’s premises, will not produce injury to the plaintiff of such a character as to be impossible of repair, or which cannot be ascertained by careful and competent inspection. The plaintiff has in its employ many such linemen and inspectors, and, by taking advantage of the provisions of the ordinance of the city of Clean adopted June 30, 1910, may protect itself from careless or negligent handling of its wires by taking charge of and doing the work; and, as the defendant offers to reimburse the plaintiff for all expense of such handling of such wires and all damage caused the plaintiff, the conclusion is necessarily reached that the plaintiff is not entitled to maintain its temporary injunction upon the ground that defendant’s contemplated act of moving his building will cause irreparable injury and damage to plaintiff for which it has no adequate remedy at law.

The claim that the moving of defendant’s building and the consequent interference with plaintiff’s wires will be a trespass upon plaintiff’s property rights cannot be maintained. The proof is that for many years it has been the usual and customary practice to use the streets of the city of Clean for the purpose of moving buildings; many buildings have been moved across plaintiff’s tracks, plaintiff raising or lowering its trolley and span wires as necessities required, and the injury, damage, expense or inconvenience occasioned thereby has been trifling. The municipality has granted defendant a license permitting him to use the streets for the purpose of moving his building. Plaintiff’s property rights in the street are subject to the rights of the public to use the street for all reasonable purposes, and there would seem to be no good reason why the common law right to move such a building along or across a highway should not be preserved as a reasonable use of such highway. In Hinman v. Clarke, 121 App. Div. 105; affd., 192 N. Y. 640, it is said that an individual has “ a common law right, in the absence of general legislative restriction by ordinance or otherwise, to the reasonable use of the public streets and highways' for the purpose of moving his buildings.” The common council, in the exercise of its right to reasonably regulate the use of the city streets in moving buildings, having granted defendant the privilege of moving his building —• the character of the building being such that the moving of it through the streets would be a reasonable use of the streets — the plaintiff’s rights in the street must be held to be subservient and subject to defendant’s right to move the building.

The temporary injunction will be vacated upon condition that the defendant pay all expense and damage incurred by plaintiff in raising or lowering its wires and comply with the provisions of the city ordinance adopted June 80, 1910. Ten dollars motion costs to defendant.

Motion granted.  