
    In the Matter of the Application of The New York District Railway Company.
    
    
      (Court of Appeals,
    
    
      Filed October 4, 1887.)
    
    1. Constitutional law—Street railways—Term includes railroads under ground—Constitution, art. 3, § 18.
    The lines of a proposed underground railway lay entirely in the city of New York and had no description separate from certain streets of said city. In constructing said railway the present surface of the street is to be removed and its own roof is to make that surface after the road is constructed. It is proposed to change the position of the sewage, gas and water pipes, etc., and to leave permanent openings in the street for the purpose of ventilation and for access to said railway. Held, that said road would be a street railway and would come within the mischief which article 3, section 18, of the constitution of New York state was designed to redress and prevent.
    2. Same—Laws 1880, chap. 582, unconstitutional in part.
    Laws 1880, chapter 582, which authorizes the construction and operation of a street railway, is unconstitutional so far as it authorizes the appointment of commissioners whose order shall be a substitute for the consent of the city authorities.
    8. Same—Application for appointment op commissioners only authorized by Laws 1880, chap. 582.
    Laws 1880, chapter 582, is the only act of the legislature which would warrant the application of said corporation for the appointment of commissioners to determine whether its railroad ought to be allowed to be built.
    4. TJndebgbodnd stbeet bailboads damage pbopbbtt.
    Where the railway runs under the streets, the adjoining owners are as much and as dangerously affected as where it runs on their surface or above them.
    Appeal from an order of the supreme court, general term, first department, denying a motion on the part of the corporation above named for the appointment of three commissioners to determine whether its road ought to be ' allowed to be built.
    
      Grosvenor Lowery, Charles Francis Stone and Esek Cowen, for app’lt; Edward W. Paige, Edward B. Thomas, D. J. Dean, Henry D. Sedgwick and Horace Russell, for resp’ts.
    
      
       Reversing 4 N. Y. State Rep., 739.
    
   Finch, J.

—No act of the legislature warrants this application except that of 1880 (chap. 582), under which alone it was made, and which furnishes the sole authority for the appointment sought. The general act of 1850 (chap. 140) provides only for commissioners of appraisal, and not at all for officers who are to determine, the necessity of the road, and whose order is to take the place of requisite consents.. The rapid transit act of 1875 (chap. 606) does not provide for similar commissioners, but vests their appointment in the mayor and not in the "supreme court. The general surface act of 1884 (chap. 252) permits such an appointment, but is limited wholly to surface roads and cannot aid the petitioner. Its application must stand or fall upon the-authority which it has invoked, and if, for any reason, that is insufficient, the denial of the application must be affirmed.

The petition proceeds upon the assumption that both the consent of one-half of the abutting values and that of the city authorities are essential to its right of construction and operation; that one, at least, it .has been unable to obtain; and that as a substitute for both it seeks the appointment of commissioners whose order may supply the existing defects. If for any reason the company has rights which are independent of such an order, or can obtain the needed, consents, the application was superfluous and no injury has followed its denial.

It appears to be conceded that if the act of 1880 be deemed to authorize the construction and operation of a street railway, it is unconstitutional so far at least as it authorizes the appointment of commissioners whose order shall be a substitute for the consent of the city authorities. The constitutional amendment of 1874 (art 3. sec. 18) provides that “no law shall authorize the construction or operation of a street railroad” except upon the condition of the two consents referred to, and permits the order of the court confirming that of the commissioners to stand in the place of the land-owners consents only.

The act of 1880 makes such order a substitute also for the consent of the authorities. But it is contended, first, that the act of 1880 does not authorize any railway at all, and operates only to amend and restrict authority already conferred; and, second, that if it does authorize the construction and operation of a railway it is one which is not a street railway, but of a different character to which the constitutional provision does not apply.

We have reached the conclusion that the act authorizes and regulates under-ground street railways in a city or village, and that the appellant’s road is such a railway. Its line lies wholly in the city of New York, and its very description in the articles of association and in the petition strongly suggests its character. It begins “ on Broadway at a_ point 190 feet southerly from the southerly line of Morris street; thence by the line of Broadway to the southerly line of Twenty-third street; thence by the most direct route to the intersection of the northerly line of Broadway and Twenty-sixth street; thence by the line of Broadway to the northerly end thereof.” The branch line has a similar description, and both are so identified with the streets as to have no description separate from them. The route of the road is thus on the streets, although beneath their surface, and it is intended to subserve many of the principal purposes to which they are devoted and to share with them in their utilities and burdens. The transfer of passengers and freight from one part of the city to another, giving freedom of access to localities and enabling transit by horse-power is one of the main uses of a city street.

The underground road renders it possible to manage this movement without change of line or locality by the use of steam, and when in full operation will subserve to a great degree the ordinary street uses and purposes. This fact the law of 1880 recognizes and identifies the railway with the street by its third section. That explicitly declares that “the use of the streets and docks and lands beneath which said railroad is constructed and the right of way beneath the same for the purpose of said railroad shall be considered and hereby is declared a public use consistent with, and one of the uses for which its streets, avenues and docks are publicly held.” The legislature seems to have deemed it wise to make the underground road a part of the street and its operation a street use by direct enactment. The railway in return reaps it own benefit from this connection with the streets. It follows them because, the assent of the authorities once gained, it is obliged to buy or condemn no land for its line, since usually the city owns the fee; and it more readily finds its passengers and patronage from its location on the streets. If now we turn to its manner of construction we observe that it proposes to remove the present surface of the street and makes its own roof that surface in the future. Not merely is the easement of the public affected temporarily by the process of construction, but permanently by changing wholly the support of that surface. We have often held that the right of the public in the streets of a city extends to and embraces, besides the support of the surface, the necessary sewerage and room for water and gas pipes and the like; and the right to lay and maintain these is an important part of the public easement. All of these the petitioner proposes to remove, and place them in a new position more convenient for its purpose. It is estimated that this one interference with the street will cost the company $750,000 a mile. Not only that, but openings are to be made in the street for purposes of ventilotion which must permanently remain, and other openings for access must be constructed and continue to exist. When the work is all done the street will consist of two stories or surfaces; one carrying the ordinary traffic and movement lessened by so much as is diverted to the swifter transit of the other, and both together will do what one alone did to the extent of its. capacity.

Such a road is to be deemed a street railway, not only because it subserves street purposes, and reaps the benefit of street easements, and occupies and modifies the street surface, but also because it is fully within the mischiefs, which the constitutional provision was designed to redress and prevent. That evil was indicated by the character of the remedy applied which was to forbid' all such constructions except with the consent of the authorities, and also, of the adjoining owners to the extent of one-half of the abutting values, or an order of the court as a substitute for such last consent. An ordinary railway terminating in or passing through the streets of "a city or village would occupy them but slightly, and be concentrated in a single limited locality. And yet since even such partial occupation might work injury to the public right the consent of the city authorities is made requisite as a guard and protection. But street railways may occupy every street in a city, and iron the whole surface, or spin their webs in the air over every avenue or undermine the entire system of city streets. To authorize such is to inflict injury upon adjoining lot owners in greater or less degree, and hence the consent of a due proportion of such was required by the constitution, dr instead, the order of selected commissioners confirmed by the court. Where the railway runs under the streets the adjoining owners are as much and as dangerously affected, as where it runs on their surface or above them. Whether the new surface is safe and sufficient, or weak and perilous, and invites or frightens away passage; whether the openings obstruct or binder access to the abutter, or pour out through the ventilators smoke and steam upon his premises; whether his vaults and foundations will remain safe and secure, or be undermined or weakened by vibration; whether his gas and water supply will continue ample and convenient, and the new sewerage work him no injury; all these are to him questions of vital importance, affecting his comfort and convenience, the success of his business, and the value of his property. The same reasons which dictated a constitutional protection against roads on or above the surface of the streets apply to those which are built beneath in the manner here contemplated, and these should justly be deemed street railroads within the meaning of the phrase as used in the constitutiom The rapid transit act, passed very soon after the constitutional amendment applies its provisions to roads under as well as on or above the surface and so tends to support our conclusion.

The act of 1880 contemplates and regulates just such an under-ground railway as is now sought to be constructed. It in terms relates to one lying wholly within city limits, running beneath its streets, cutting out and replacing their surface _ and leaving in them openings for access and ventilation. If the act authorizes any railway at all, it authorizes a street railway within the terms of the constitutional prohibition. But it is claimed it authorizes no railway whatever, and for that reason escapes the control of the fundamental law. The company’s counsel argue that it gets its authority for the construction and operation of its under-ground road, not from the act of 1880, but from the general act of 1850, under which it was organized. But that act, as we have held, has no application to street railroads (N. Y. Cable Co. v. Mayor, etc., 104 N. Y., 1; 4 N. Y. State Rep., 331), and if it had, the act of 1860 (chapter 10) takes away the authority so conferred, for it provides that “it shall not be lawful hereafter to lay, construct or operate any railroad in, upon or along any or either of the streets or avenues of the city of New York,wherever such railroad shall commence or end, except under the authority and subject to the regulations and restrictions which the legislature may hereafter grant and provide.” Having held that appellant’s road is a street railway, and shown that it is planned to be built in and along the city streets, it follows that it has and can have no authority to construct its proposed road under the act of 1850, and if it does not get it under the act of 1880, it has no authority at all, and no standing before the court; I think the truth may be that the appellant derived its corporate existence from the act of 1850, but certainly not its right to construct its contemplated road; that such right could only come from the rapid transit act or the act of 1880, and that the latter is an act which authorizes the construction and operation of a street railway, and so is within the constitutional provision.

It is said, however, that only so much of the act of 1880 is invalid as makes the order of the court confirming the commissioners stand for the consent of the authorities, and that the order may be granted to stand for the consent of the property-owners alone. We cannot see our way to that conclusion. The order, when made, is a single thing, which must have the statute effect, or none. We cannot divide or mutilate it without changing its inherent character, purpose and effect. Limited to the consent of the land-owners it would be a good order, but not the order which the statute authorized. The legislature has declared that when made it shall stand for two things. We are asked to say that it shall not, but only for one. If we do that we invade the domain of the legislature; we change its mandate as to effect of the order; it ceases to be the order authorized and becomes another and different one. It is not the case of two independent provisions, one of which may be rejected without affecting the remainder of the act, for we cannot lessen the effect of the order without maiming the order itself and its statutory character. Very possibly the act may stand as an authority for the construction of an underground street railway upon the condition of the assent of the city authorities and the half of abutting values, and rejecting all the provisions for the appointment of commissioners, whose order shall be a substitute. Further than that, we do not deem it our duty to go.

The order should be affirmed, with costs.

All concur.  