
    THE NINTH AVENUE R. R. CO. v. THE N. Y. ELEVATED R. R. CO.
    N. Y. Common Pleas; General Term,
    
    
      April, 1877.
    Constitutional Law.—Restraint on Local and Private Biles. —Common Nuisance by Structure in Streets.—Elevated Railroad and Surface Road.—Interfering Franchises.—Remedy by Injunction.—Substantial Grievance.—Lying by.
    To sustain an injunction by private action against an unauthorized erection in a highway, plaintiff must show that he has suffered or will suffer not only a peculiar and special, but a substantial injury.
    The decision in Patten v. The N. Y. Elevated R. R. Co. (reported at p. 306 of this vol.), that under the constitutional amendments of 1875, the legislature cannot by private or local bill waive aforfeiture by a corporation ctf rights of construction which it had not already exercised; nor authorize it to extend its structure in the manner prescribed by previous statutes without inserting the provisions of statute'thus referred to as made applicable to the extended structure,—reiterated.
    
    A legislative grant of the right to use a public street for the running of a railroad is not to be deemed exclusive in character, except by express terms of the charter.
    
    The grant of a right to lay a surface road does not by implication preclude the legislature from subsequently granting to other persons the right to build an elevated road directly over the surface road, by a structure, and operated in a manner, in some. degree to the inconvenience to the grantees of the surface route.
    Plaintiffs, under legislative authority, made and operated a surface horse railroad through the length of a city avenue, in the city of New York; and defendants, acting under color of statutes which were deemed void as unconstitutional, extended their elevated road directly over the length of plaintiffs’ track, supporting it upon posts rising from the street along the side of plaintiff’s track.
    Plaintiffs having suffered defendants to go on for a considerable time in putting up a continuous and expensive structure, cannot after-wards have relief by injunction.
    
      Held, that as no diminution of receipts or actual diversion of travel was shown, inconveniences to the plaintiffs by preventing ingress, &c., of passengers to any car stopped directly opposite the posts, or by preventing the use of the existing form of snow-plow to clear the tracks, or by the dropping of oil and water from the engines above on the roof of plaintiffs’ cars,—although these injuries were peculiar to the plaintiffs, were too slight to entitle them to maintain a private action for an injunction.
    Appeal from a judgment.
    The plaintiffs, a corporation, for many years had owned and operated a surface passenger horse railway running through various streets into and along Ninth avenue in the city of New York, under various grants by municipal ordinances and acts of the legislature. [Recently, the defendants were incorporated by act of the legislature and authorized to establish and operate by steam power an elevated railroad company; a frame-work track, supported, about fourteen feet above the sidewalk, upon iron posts, through one and the same streets, and along the same avenue.
    
    The avenue in question had, from time to time, been laid out and extended under the provisions of the act of 1813; and the plaintiffs’ railroad was a double track road running along the centre of the paved carriage-way. The municipal resolutions under which, among other authority, the plaintiffs operated their road, required that they should “keep the space of two feet each side of the same, at all times, in thorough repair.”
    The defendants were a corporation whose history was, briefly, as follows: In 1866 (L. 1866, c. 697) the West Side and Yonkers Patent Railway Company was incorporated, and under that act and another of the following year (L. 1867, c. 489), it commenced the construction of the elevated track along the line of the curb-stone. Under mortgages made by this company, and a foreclosure thereof, the property and franchise were-sold, and the defendants, who were incorporated in 1871 under the general railroad law of 1850 {L. 1850, c. 140) became the purchasers of the property, rights and franchises of the former company, and, after October 22,1873, proceeded to the construction of the track on the westerly side of Ninth avenue, from Thirty-fourth street north to sixty-first street, on the curb-stone line, and on a line parallel to plaintiffs’ track, and at all points about twenty-two feet distant westerly therefrom, and used the track so constructed for the transportation of passengers by steam locomotive engines and cars, running along the track in full sight and not concealed from view. • After the same date the defendants also proceeded to erect in the carriage-way of Ninth avenue upright iron posts, or columns, designed to support additional track or tracks for turn-outs, at the same height above the surface as the original track; and, at some points, this structure ran for several blocks along the line of the plaintiffs’ track, its cross-ties and its cars overhanging the cars of the plaintiffs as they passed.
    On June 17, 1875, the legislature passed the act entitled “An act to authorize and requiring the New York Elevated Railroad Company to continue and build its railroad in the city of New York, and regulating the construction, operation and arrangement thereof and it was under this act that the defendants claimed the right to construct the side-tracks along the centre of the street over-hanging the plaintiff’s tracks above Thirty-fourth street:
    The plaintiffs, also, showed that they owned, in fee, certain real estate on Ninth avenue, of considerable extent, used by them as depot, stable-sheds, &c., on which they had paid large sums for taxes and for assessments for public improvements on Ninth avenue.
    The cause was tried before Hon. George M. Vast Hoesen, who found, besides facts above indicated, that the construction and operation of the road above Thirty-fourth street was not specially injurious to the plaintiff, either in the enjoyment of its franchise, or in the use of its property in any other ways than to the rest of the public. Also that it did not, and would not materially or substantially injure or interfere with any of the land abutting on Ninth avenue' and owned by the plaintiffs, or any building thereon, or any right of way, or access, or other easement.
    Also that the plaintiffs knew that defendants were constructing the various portions of their road-way and turn-outs, and at the time of their construction, and knew the effect' thereof, but until the commencement of this action (in May, 1876), took no legal proceedings to prohibit it. His conclusions of law were, in brief, that defendant had lawful authority to maintain the road south of Thirty-fourth street, and to use locomotive engines thereon, but the construction and operation of the road north of Thirty-fourth street was not authorized by law, and was a common nuisance ; but that plaintiffs, having, with knowledge, permitted defendants to go on with the work, were not now entitled to injunction; and, hence, the facts found did not constitute a cause of action.
    
      He accordingly dismissed the complaint.
    
      John M. Scribner, Jr., and F. N. Bangs (Robinson & Scribner, attorneys), for plaintiff.
    
      James Emott and Aaron J. Vanderpoel (Edward C. Delavan, attorney), for defendant.
    
      
       Contra, see pp. 401, 435 of this vol.
    
    
      
      See pp. 375, 402.
    
    
      
       For the rights of the companies as as to snow on the streets,—see Prime n. Twenty-third street R. R. Co., 1 Abb. Hew. Cas. 63. As to rights of wagons and other vehicles on street railroad tracks,—see Adolph v. Central Park, &c. R. R. Co., 65 H. T. 554; 33 Super. Ct. (J. & S.) 186.
    
    
      
      Stated in the report of Patten v. the same defendants, p. 306 of this vol.
    
    
      
      See this act more fully referred to on p. 375 of this volume.
    
    
      
      Reported at page 306 of this vol.
    
   The following opinion was rendered by the learned judge.

Van Hoesen, J.

The Ninth Ave. R. R. Co. seeks an injunction to restrain the New York Elevated R. R. Co. from using dummy engines upon any portion of its route—from constructing, maintaining, operating or using any switch, turn-out, side-track or crossing south of Thirtieth street, and from operating its road, or maintaining any tracks whatsoever on the sidewalk, or in the roadway, upon Ninth avenue north of Thirtieth street.

The right of the Elevated R. R. Co. to maintain a single track upon the edge of the curb-stone, or on one side of the street, without switches or turn-outs, between the Battery and Thirtieth street, and to propel cars upon the track by means of an endless chain attached to stationary engines placed underneath the surface of the street, is not questioned.

That portion of the Elevated R. R. standing between Thirtieth and Sixty-first streets was constructed subsequently to April 22, 1873, and the general term of this court has decided that the authority of the defendant to build its road had, before the date mentioned, expired. The construction of the road north of Thirtieth street was therefore without authority of law; and as the columns beyond all question continuously obstruct the street, I am bound to declare that so much of the Elevated R. R. as is situated on the Ninth avenue, between Thirtieth and Sixty-first streets, is a common nuisance (Davis v. The Mayor, 14 N. Y. 506).

As that portion of the road is a public nuisance, no-private person can maintain an action for its suppression without showing that it has occasioned him a particular injury beyond that which is suffered by the rest of the public, and that such injury is direct, not consequential, of a substantial character, and not fleeting or evanescent (Benjamin v. Storr, L. R. 9 C. P. 400).

The injury must be not merely greater in degree, but different in kind from that sustained by the community at large (Addison on Torts, Am. Ed. pp. 241, note d. and 261, note a.).

The right of the plaintiff to an injunction depends, then, upon its having been shown that it has sustained or will sustain damage, substantial, direct and peculiar to itself, by the unauthorized construction or the unauthorized operation of the Elevated Railroad. It is not at all essential that the plaintiff should be the only party injured. The number of those injured may be large, but the injury they sustain must be different in kind from that inflicted upon the rest of the public.

The plaintiff alleges its peculiar injuries to be:

1. That the Elevated Railroad Company (having no authority to build its track north of Thirtieth street) is invading the franchise of the plaintiff, which is exclusive, and is taking the fares of passengers who, but for the inducements held out to them by the Elevated Railroad, would travel upon the Ninth Avenue Railroad.

2. That all the columns erected above Thirtieth street, and the columns in the roadway below Thirtieth street, interfere with ingress to and egress from the plaintiff’s cars.

3. That the use of dummy engines frightens the horses of the plaintiff and causes them to injure themselves, and furthermore frightens other horses and causes them to injure the plaintiff’s cars.

4. That the obstacles to travel upon the Ninth avenue railroad, caused by the use of steam, and by the erection of columns and tracks in and over the roadway, are so great as to warrant the apprehension that, unless such obstacles are removed by the process of the court, the franchise of the Ninth Avenue B. B. Company will become valueless, and its rights 'and property seriously injured, if not totally destroyed.

The first specification of special damage is not, in my opinion, supported by the facts. It was not shown by the evidence, nor indeed is it distinctly averred in the complaint, that passengers had travelled upon the elevated railroad who, but for that railway, would have paid fare to the plaintiff. It is wholly a matter of conjecture which one of the many horse railroads running along the longitudinal avenues of the city passengers would travel upon if the elevated railroad were not in operation. It is possible—perhaps probable— that some of those who have gone upon the elevated railroad, would have gone upon the Ninth avenue line if the elevated road had not been built, and that the receipts of the Ninth avenue company would thereby have been increased. But I cannot assent to the proposition, for which the counsel of the plaintiff so earnestly contended, that the franchise of the Ninth avenue company is exclusive. It must be conceded that if the franchise was exclusive, the plaintiff would be entitled to an injunction (Aiken v. Western R. R. Corporation, 20 N. Y. 370).

I can perceive no reason why every other horse railroad in the city of New York has not as good a right as the Ninth avenue company to assert that its franchise is exclusive. Not one word that I can discover in the act giving that company authority to lay and operate its roads tends to support the claim to an exclusive franchise. It is contended that the effect of sec. 18 of art. 3 of the amendment to the constitution is to pro tect the company in the exclusive use of the street. I cannot so regard it. It is true that sec. 18 requires that the consent of the local authorities, and the consent of the owners of one-half in value of the property along which a city railroad is to run, shall be obtained before the road is begun. But such consent being given, or the permission of the supreme court being obtained in lieu of the consent of property-owners, there is nothing to prevent the construction of as many railroads in the Ninth avenue as the legislature may see fit to authorize. The franchise of the plaintiff is not exclusive, and for that reason an interference with its profits by the defendant, though such interference be without authority of law, will not be stopped by injunction. Such is the law as laid down in the court of appeals in the case of the Fort Plain Bridge Co. v. Smith, 30 N. Y. 44. The loss of fares does not, under the decision just cited, entitle plaintiff either to an injunction or to damages.

As regards the second specification of special damages, I need only say that there is not a particle of evidence to sustain the allegation, that the columns of the elevated railroad obstruct in the. slightest degree, access to the plaintiff’s cars. Not a single instance was proven, in which a passenger, an employee, a horse, or a car of the plaintiff ever received the least injury from any column erected by the defendant. On the other hand, it was shown that the columns were so placed, that it is most improbable that they will present any obstacles to any passenger, or imperil either the property of the plaintiff or the persons of its servants.

The third specification of special damage is the one most relied upon by the plaintiff. A large mass of evidence was introduced to prove injuries that had resulted from the use of dummy engines on the defendant's road. Dummy engines were introduced upon the elevated railway on April 20, 1871. The company began running cars up to Thirty-fourth street, July 30, 1873; to Forty-second street, on November 6, 1875, and to Fifty-ninth street, on January 18, 1876.

The defendant formerly asserted a right to use dummy engines under the act of 1868. That act has been pronounced unconstitutional by this court, and is conceded to be so by the counsel for the defendant.

The defendant now insists that, though it had no. right to use dummies before, it acquired such a right by virtue of the act of 1875. If the act of 1875 does, in fact, authorize the defendant to use dummy engines, it is not in the power of the court to enjoin such use on that part of the road which is south of Thirtieth street; for below Thirtieth street, the road is, as has been said, indisputably a lawful structure. It so happens, however, that by far the greater number of injuries shown to have been caused by the operation of the dummies, have taken place in that very quarter of the city, where, if the act of 1875 be constitutional, the court cannot prohibit the use of dummy engines.

It is conceded that if the employment of dummy engines be authorized by the legislature, neither the Ninth Avenue Railroad Company, nor any other litigant is entitled to an injunction because dummies frighten horses. The defendant might then lawfully frighten the plaintiff’s horses south of Thirtieth street, though the cause which produces the fright might, when operating north of Thirtieth street, give the plaintiff the right to an injunction. An injunction prohibiting the use of locomotives upon the northerly portion of the defendant’s line, while on the principal part of its route dummies were in constant use, would be of little advantage to the plaintiff, but yet, if a proper case were made out, the plaintiff might, nevertheless, obtain injunctive relief.

The evidence concerning the effect of the dummies upon horses may be summed up briefly. Horses when first driven near to the elevated railroad exhibit signs of nervousness and alarm ; some never overcome their fear, but, as a rule, horses after being a day or two in the neighborhood of the road, stand without tying under the track as the trains speed on overhead. Accidents were formerly more frequent than now; experience has enabled the defendant to remove some of the imperfections in the dummy which were likely to excite alarm in horses, and the accounts given by the. employees of the plaintiff were principally of accidents-that occurred long ago. There can be little doubt upon the evidence that, at the present time, the disturbance to the plaintiff’s horses is so slight as to be almost inappreciable. Indeed the plaintiff’s evidence consisted in part of the testimony of drivers who were, brought whilst this suit was pending from the Eighth avenue railroad to the Ninth, with horses unaccustomed to the elevated railway. There would have been no-occasion for a resort to such evidence if the elevated road had actually been an object of terror to the horses heretofore driven on the Ninth avenue road. But even if the horses of the plaintiff were to-day injured by their fears of the dummies, the damage to the plaintiff would be greater in degree, but not different in kind from that sustained by the rest of the community. And, as has already been said, such damage happening to an individual will not warrant the issuing of an injunction, at his suit against a public nuisance.

From the views I have expressed, it will appear that, in my opinion, if the franchise of the plaintiff ever becomes valueless, it will not be because the columns of the defendant .obstruct passengers who are attempting to enter or leave the Ninth avenue cars, or because dummy engines frighten horses and cause cars to be broken. It will be simply because the people

prefer the elevated railway to the horse car. That preference is not to be controlled by injunctions.

It only remain for me now to inquire whether the defendant has the right to use dummy engines on its road south of Thirtieth street. I have no doubt that it has that right.

Section 4 of the act of 1875 provides that the defendant may make and adopt such alterations and improvements in motive power and its application as •certain commissioners may authorize or approve. What commissioners were to possess this authority, is •determined by the preceding section of the act. They were the commissioners who had been appointed under the act of 1867 to inspect the West Side and Yonkers Patent Railway, and to supervise the manner of its construction. They are designated not by their individual names, but by their official title. It is said that such designation is utterly invalid, because section 3, which describes them, goes on, in violation of section 17, art. 3, of the amendments to the constitution, to confer upon the commissioners, by a mere reference to the act of 1867, powers which are specified in that act, but which could not be constitutionally conferred without being-set out in detail in the act of 1875. It is true that the commissioners derived no power from section 3. But section 4 does by its terms confer upon them an authority which could be exercised without the slightest reference to the powers created by the act of 1867—an authority to approve, if they saw fit, the alteration and improvement in the motive power which the defendant might adopt. The adoption of the , dummy engines by the defendant, and the approval of such adoption by the commissioners after the passage of the act of 1875, were proven, and, in fact, not disputed. It results, therefore, that the defendant may lawfully use dummy engines south of Thirtieth street.

I do not attach any importance to the naked allegation of the plaintiff that the cars of the elevated railway overhang the plaintiff’s cars at certain portions of the route. No injury to the plaintiff was shown to result from the projection of the defendant’s cars, except that oil and water sometimes dropped upon and spotted the roofs of the plaintiff’s cars. It was proven that the dripping of the oil was not a necessary consequence of the operation of the defendant’s cars, but was rather occasioned by negligence and the wearing-out of the waste used about the journals. If the injuries to the plaintiff’s cars from the oil were sufficiently serious to require the interposition of a court of equity, the injunction would not prohibit the running of the cars, but would restrain the use of such materials-as soil the canvas with which the roofs of cars are covered.

There is another consideration which, though not urged upon the argument, strikes me as of great importance. Three years have elapsed since the defendant began to construct its railway north of Thirtieth street. According to the decision of the general term of this court, every column and every rail added to the structure increased a common nuisance. The plaintiff, aware of its rights, and of the damage, with which its property was threatened, lay quietly by, and without making the slightest effort to stop the wrongful obstruction of the street, permitted the defendant, year after year, to-proceed with its work, and to spend its money.

Such acquiescence should be a bar to equitable relief.

It has been decided that where a person who sees a structure in progress, which he knows must deprive him of the enjoyment of rights which he possesses, permits it without objection on his part to be finished at great expense, he cannot obtain the aid of a court of chancery to pull it down (Cooper v. Hubback, 30 Beavan, 160; Cotching v. Bassett, 32 Law J. Ch. 286).

From the judgment thereon the plaintiff appealed to the general term.

F. N. Bangs and J. M. Scribner, Jr., for appellant, cited,

I. As to the lawfulness of the defendant’s structures in the carriage-way in Greenwich street, and in Ninth avenue below Thirty-fourth street, cited Patten v. The Elevated Railway Co.

II. As to the lawfulness of the motive power used by the defendant in drawing or propelling its cars, and the method of using it: L. 1867, ch. 489, § 2; L. 1868, c. 853; L. 1875, c. 595, § 4; and Patten v. The Elevated Railway Co., supra; and contended that tested by that case, §§ 1, 2 and 3 of the act of 1875 were clearly inoperative and void, and that sec. 4, being a dependent one, must be inoperative ; and that the act of 1868 was unconstitutional. That under the act of 1867 the commissioners were functi officio. That under sec. 18 of the third amendment to the constitution the legislature is incompetent to pass any private or. local bill which lays out, &c., any road, or grants right to lay down railroad tracks, &c.

III. As to the special relation of the defendant to the plaintiff, growing out of the fact that the plaintiff is the owner of a franchise granted by the State: Commonwealth v. Temple, 14 Gray, 69; Davis v. Mayor, 14 N. Y. 506; Craig v. Rochester City, &c. R. R. Co., 39 Id. 404; Whittaker v. Eighth Ave. R. R. Co., 51 Id. 295; Brooklyn, &c. Co. v. C. I. Co., 32 Barb. 371; Barker v. H. R. R. Co., 4 Daly, 274; The Croton Co. v. Rider, 1 Johns. Ch. 611; Newburgh Turnpike Co. v. Miller, 5 Id. 100; Livingston v. Van Ingen, 9 Id. 507; The Charles River Bridge Co. v. The Warren River Bridge Co., 11 Peters, 420; Turnpike Co. v. State, 3 Wall. 410; Boston & Lowell Railroad v. The Salem & Lowell R. R. Co., 2 Gray, 9; Aiken v. The Western R. R. Corpor., 20 N. Y. 370; The Binghampton Bridge, 3 Wallace, 51; Auburn, &c. Plank Road Co. v. Douglass, 9 N. Y. 444; Fort Plain Bridge Co. v. Smith, 30 Id. 44.

The complaint should be dismissed, with costs to the defendant.

IV. As to the special relation of the defendant to the plaintiff growing out of the location and character of the plaintiff’s property and business, and its method of using its property, and conducting its business: Mason v. Lord, 41 N. Y. 476; Putnam v. Hubbell, 42 Id. 106; Getty v. Devlin, 54 Id. 403; Lyon v. Fishmonger’s Co., L. R. 1 App. Ca. 662; Renwick v. Morris, 7 Hill, 575; Milhan v. Sharp, 27 N. Y. 611; Clark v. Blackmar, 47 Id. 153; Kellinger v. 42nd St. R. R. Co. 50 Id. 210; Francis v. Schoellkopf, 53 Id. 152; Blanchard v. Western Union Telegraph Co., 60 Id. 510; Johnston v. Christopher St. &c. R. R. Co., 1 Abb. New Cas. 75, note; Prime v. Twenty-third St. R. R. Co., Id. 63. Also Knox v. Mayor, 55 Barb. 404, injury to trade and premises from an obstruction of highway; Maynell v. Saltmarsh, 1 Keble, 847, deterioration of corn from detention on highway; Chichester v. Sethpridge, Willes, 71, personal injury in attempting to remove obstruction; Rose v. Miles, 14 M. & S. 101, interruption of access to premises on margin of river; Wilkes v. Hungerford Market Co., 2 Bing. N. C. 281, direct injury to trade in diminution of custom; Rose v. Groves, 5 M. & G. 193, obstruction of access to house on river bank by floating timber; Regina v. Great Northern R. W. Co., 14 Ad. & E. (Q. B.) 25, interruption of approach by travellers to claimant’s ferry; E. & W. I. D. & B. J. R. W. Co. v. Gattke, 3 Mac. & G. 155, scattering dust and dirt, and stopping up access to claimant’s premises; Glover v. N. S. R. W. Co., 16 Ad. & E. (Q. B.), 912 obstruction of private right of way; Broadbent v. Imperial Gas Light Co., 7 De G. M. & G. 436, noxious gases—where it is said: “the court must issue an injunction, whatever may be the consequences, with regard to the lighting of the parishes and districts which this company lights with gas;” Chamberlain v. West End, &c. Co., 2 Best & Smith, 617, diminution of custom; Senior v. M. R. W. Co., 32 L. J. (Exch.) 225, diminution of custom; Cameron & Bourhill v. Charing Cross R. W. Co., 16 C. B. N. S. 430 diminution of custom; Re Stockport, &g. R. R. Co., 33 Law Jour. N. S. 251, danger of fire and increased insurance; W. P. R. R. Co. v. Hill, 6 P. F. Smith (Pa.) 460; and State v. Parrott, 17 American Rep. 5; Greasley v. Codling, 2 Bing. 263; Pindar v. Wadsworth, 2 East, 154; People v. Cassidy, 46 N. Y. 46; Bakeman v. Burge, 6 Ca. & P. 391; James v. Hayward, Cro. Car. 184; 1 Russell on Crimes & Misdemeanors (4 Eng. Ed.) 483.

V. As to the alleged bar to this action arising from alleged acquiescence: Miles v. Hall, 9 Wend. 315; City of Rochester v. Errickson, 46 Barb. 92, 95; Renwick v. Morris, 7 Hill, 575.

VI. As to the remedy: Pennsylvania v. Wheeling Bridge, 13 How. 519; Gilman v. Philadelphia, 3 Wall. 713; Devoe v. Penrose Bridge, 3 Am. L. Reg. 79; People v. Vanderbilt, 38 Barb. 282; Atty. Genl. v. Jackson, 2 Wils. Ch. 87; Lane v. Newdigate, 10 Vesey, 192; Davis v. Mayor, 14 N. Y. 526; People v. Mayor, 32 Barb. 102; Earl of Ripon v. Hobart, 3 My. & K. 169; Silliman v. Troy Bridge, 11 Blatch. 277; The Passaic Bridges, 3 Wall. 791, 721; High on Injunctions, 299; Atty. Genl. v. Hudson R. R., 1 Stockt. 526; Hudson River Bridge case, 4 Blatch. 78; Mohawk R. R. v. Archer,6 Paige, 83; Baird v. Shore Line R. R., 6 Blatch. 276; Bland v. Imperial Gas Light Co., 7 De G. M. & G.; Marquat v. Marquat, 12 N. Y. 336; Edmonston v. McLoud, 16 Id. 543; Purchase v. Mattison, 25 Id. 211; Beach v. Cooke, 28 Id. 508; Brownell v. Winnie, 29 Id. 400; Cuff v. Dorland, 57 Id. 565; Jackson v. Andrews, 59 Id. 244; Buckmaster v. Consumer’s Ice Company, 5 Daly, 317.

A. J. Vanderpoel and James Emott, for respondents.

By the Court. Daly, Ch. J.

It must be regarded as settled by the decision of the general term, in the action brought by Patten against the defendants, at least so far as this court is concerned, that the defendants had no authority by law to erect any structure for the extension of their road along the Ninth avenue, north of Thirtieth street. That the authority given by section 10 of the act of 1867, to extend the road along Ninth avenue to.the Harlem river was an authority to do so within five years, and although at the expiration of the five years they may have had the right to the use of that which they had constructed until their franchise was forfeited, they had no authority after the expiration of that time, to continue the construction of the road further, all authority to do so having ceased, as the time limited for its construction by the act of 1867, had expired ; and no authority was acquired under the act of 1875, the legislature under the amended constitution which was then in force having no authority to pass a private or local bill granting to any corporation, association or individual the right to lay down railroad tracks or any exclusive privilege, immunity or franchise whatever, and because that act provided for extending the road over streets and places specified, permitted in former acts, and in the mode, manner and form prescribed in such acts, without inserting these acts or the parts of them, that were thus made applicable (amended constitution of 1875, art. 3, §§ 17 and 18).

It was urged upon the argument that the decision of the general term in this respect, in the Patten case, was erroneous. That the provision in the act of 1875 extending the time for the building of the road was not the grant of any new franchise, or of any new right to lay down railroad tracks, but a waiver on the part of the State of the forfeiture: an act which the legislature might do without violating the provisions of the amended constitution referred to. But whether that decision was right or wrong, it is res judicata in this, court, and must be adhered to under the rule of stare decisis, leaving the error, if it be one, to be corrected by the court of last resort.

But although the structure north of Thirtieth street must, under this decision, he regarded as a common nuisance, being without authority of law, it does not follow that the plaintiffs, the Ninth Avenue Railroad, are entitled to an injunction against the maintenance of it, unless it appears that they have sustained or will sustain some peculiar and special injury greater in degree or different in kind from that of the public generally. If they have not or will not, they have no right of action, because it is a nuisance, but it is for the attorney general to bring the proper action to abate it, in behalf of the people (Smith v. The city of Boston, 61 Mass. 254; O’Brien v. The Norwich R. R. Co. 17 Conn. 372; Irwin v. Dixon, 9 How. U. S. 10). The plaintiffs, can maintain no action except upon the ground that they have or will sustain an injury greater than or different from that of the community in general, nor even then are they entitled to the kind of equitable relief which is sought in this action, unless the injury is of a serious or irreparable character, and there has been diligence on their part in applying for such relief.

There was no dispute on the argument that this is the law, and in fact, very little disagreement between the counsel as to the rules and principles which must govern in the decision of this case as they are well settled. The plaintiffs acquired by their charter the right to lay down rails along the line of their track in the Ninth avenue, to run cars over their track for the carriage of passengers for hire, and a paramount right to the use of the rails where required for the running of their cars.

The plaintiffs say that up to the time of the adoption of the constitutional amendments of 1875, they were the sole owners of this franchise, and that the effect of those constitutional amendments was to make them not only the sole owners of the franchise, but to give them for that purpose the exclusive right to the use of the particular streets in which they were operating their railroad for the purpose designated in the grant made to them by -the State ; and they sought to have the defendants enjoined from continuing their structure and operating their elevated railroad, north of Thirtieth street, as they had no authority in law to do so, and the plaintiffs were peculiarly and specially injured in the use of their road and in the discharge of their duties to the public by the construction and operation of the elevated road of the defendants.

The plaintiffs, by their charter, had no exclusive right to the use of the avenue for the running of a street railroad. A grant of such a franchise to the exclusion of all others must be expressly made in terms by the legislature, and cannot be taken by implication (Fort Plain Bridge Co. v. Smith, 30 N. Y. 44).

The plaintiffs’ franchise did not by its terms exclude the legislature from granting to the defendants a right to construct an elevated railroad along the same avenue, although it might greatly impair or destroy the value of the franchise previously granted to the plaintiffs (The Charles River Bridge v. The Warren Bridge, 11 Peters, 420; The Auburn, &c. Road Co. v. Douglas, 9 N. Y. 451, 452, 453), and whatever may be the effect of the provisions in the constitutional amendments of 1875, in respect to the restraint which they impose, upon the powers of the legislature, it does not follow that the plaintiffs have any other or greater privileges than they acquired by their charter.

The plaintiffs claim that the value of their franchise is greatly impaired by the structure erected by the defendants; and that this is an injury special and peculiar to them that entitles them to have the defendants enjoined from continuing this structure and operating their road over it. The specific injuries which they claim to have received are as follows :

I. That the plaintiffs had the use of the avenue on either side of their track, in common with the rest of the public. That it was useful and available to enable them to receive and discharge their passengers conveniently ; to shift their horses from one car to another, to avoid collision with other vehicles; to run their horses off the track to enable other vehicles to get off it easily, when the plaintiffs’ superior right to the use of it had to be asserted. That this space has been abridged by the defendants’ structure to the inconvenience and detriment of the plaintiffs in constructing their railroad. That it impedes access to and egress from their cars. That there is less ease and facility in keeping the track of other vehicles and a greater tendency to crowd the track with other vehicles.

II. That the columns on which the structure stands interfere with the performance of the duty which they are required by their charter to discharge : of keeping the space of two feet on each side of their track, at all times, in thorough repair.

TTT- That the projection of the upper part of the defendants’ structure, which projects for about one foot and two inches over the roof of their cars as they pass, interferes with the summary mode resorted to by them in winter for removing the snow and ice from their track.

IV. That the dripping of water and oil from this upper structure damages the roofs of their cars.

V. That the existence of defendant’s structure and the use of steam dummies upon it frightens the plaintiffs’ horses, and this impairs the value of their property.

And lastly, that the effect of this elevated road which beyond Thirtieth street is unauthorized by law, is to divert passengers from their road, who, but for the inducements held out by the elevated railroad, would travel in the plaintiffs’ cars.

The conclusion is justified that the occupation of the space between the defendants’ tracks and the curbstone by the columns, on which the defendants’ structure rests, subjects the plaintiffs to no other or greater inconvenience than is sustained by the public in general, in the use of this part of the street. That in this respect no injury arises from this cause, which is special or peculiar to them.

It is shown by the evidence that notwithstanding these columns or posts, the plaintiffs’ facilities for receiving and discharging passengers are as great as they were before these posts were erected, with the simple exception that it would not be as easy to get off at the point of actual contact with the posts;—that the number of convenient stopping places is not at all reduced, as the stopping places are at the crossings of the streets and the posts are not at the crossings. All that appears in respect to the removal of ice and snow in winter, is that the plaintiffs cannot use snow-plows with the same facility as before. It amounts simply to this, that the snow-plows previously used on the Mnfch avenue by the plaintiffs to clear their tracks of snow, cannot be run without being thrown off the track by the columns.

It does not follow that the right to use snow-plows is a right incident to the plaintiffs’ franchise, or that the snow may not be effectually removed from the track by other means, or by snow-plows somewhat different in structure, or that those which they heretofore had in use, may not, by some alteration or modification of them, be as effectual as before. It is not shown that it is indispensable to remedy this temporary inconvenience that the defendants’ structure must be taken down and removed, which would be the effect of their being perpetually enjoined from using it. It is not shown that the dripping of oil and water on the roofs of plaintiffs’ cars is the ordinary or necessary result of the use of the elevated railroad.

For all that appears in the evidence it may have been the result of neglect, or of the unskillful use of machinery or some defect in the construction of it, and at best it was a very slight and trifling grievance. All that was shown on the part of the plaintiffs was that oil and water sometimes dropped upon and spoiled the canvas upon the roofs of the plaintiffs’ cars, whilst the effect of the defendants’ evidence was that it was not a necessary consequence of the running of their cars, but was rather occasioned by negligence and the wearing out of the waste used about the journals. As respects the remedy which is here applied for, to have the defendants enjoined from any further use of the road on this account, the maxim might be applied as the defendants’ counsel suggests, "de minimis non curat lex.” Or if this injury was sufficiently serious to require the interposition of a court of equity by injunction, it would not be to prohibit the running of the cars, but to restrain the use of such materials or defective machinery; to prevent the canvas with which the roofs of the plaintiffs’ cars are covered from being soiled.

We are not referred by the plaintiffs’ counsel to any thing in the testimony which shows that the plaintiffs cannot keep in repair the two feet of the street on either side of their track as effectually as before ; and as the plaintiffs’ counsel has not referred us to. any such testimony we may assume that no such evidence was given, without going through the whole of the testimony, which fills a large octavo printed volume, h> discover if there be any.

As to the effect of the structure and of the running of cars over it by steam, on the plaintiffs’ horses, the judge below has given a complete answer.

After reviewing the evidence upon this point, his. conclusion was that when horses are first driven near to the structure, they exhibit nervousness and alarm, which some never overcome ; but that as a rule, after being a day or two in the neighborhood of the road, they stand without tying, under the track, as the trains pass overhead, and that at the time when the action was tried, the disturbance to the plaintiffs’ horses was so slight as to be almost inappreciable—the whole of which is fully sustained by the evidence.

It was not shown by the testimony that any passenger who had travelled by the elevated road would, but for that road, have travelled in the plaintiffs’ cars and paid fare to them ; and it was conceded upon the argument that the plaintiffs’ receipts on their road have not diminished since the elevated railroad has been running. It does not appear, therefore, that the elevated railroad has diverted traffic from them, or as a competing road, that it has diminished the pecuniary value of their franchise, their receipts not having diminished.

This is sufficient to entitle the defendants to an affirmance of the judgment, without considering the additional reason given by the judge below that it is more than three years since the defendants began the construction of their road; that the plaintiffs, having their own road in the same avenue, necessarily knew what the defendants were doing, and having suffered them without complaint to go on for a considerable time in putting up a continuous and expensive structure, they cannot afterwards apply to a court of equity to have them enjoined from using what they have erected without any objection or complaint being made, in the course of the erection, by the party afterwards claiming that he has or may be injured by it. This is a just and equitable rule that has been recognized and applied in numerous cases (Jones v. The Royal Canal Co., 2 Molloy, 319; Odlin v. Gove, 41 N. H. 465; Wood v. Sutcliff, 2 Jur. N. S. 163; Birmingham Canal Co. v. Lloyd, 18 Ves. 515; Ripon v. Hobart, 3 My. & Keene, 169; Binney’s case, 2 Bland Ch. 99; Southard v. Canal Co., 1 N. J. Eq. [Sax.] 518; Hulene v. Shreve, 4 Id. [3 Greene] 116).

Whatever injury has arised or may arise from this unauthorized structure the plaintiffs share it in common with the public, the remedy for which is an action by the attorney general on behalf of the people. They have not shown that they sustain any greater or different injury than may arise to any one in the use of the street.

So far as there has been any loss or injury to them it has either been of a very trivial kind or such as can be fully repaired by an action for damages. It has not been of a character to justify this court in interposing its equitable power to stop the further running or use of the elevated road, upon the sole ground of the great peculiar or irreparable injury it will or may do as to the plaintiffs’ road.

The judgment should be affirmed.

Larremore, J., concurred.

J. F. Daly, J. [dissenting].

The second finding or conclusion of law by the judge who tried the cause at special term establishes for the purposes of this case that the structure erected by defendants in the Ninth avenue above Thirty-fourth street is not authorized by law and a common nuisance.

It is clearly pointed out in the opinion of the chief justice, and supported by the evidence, that the structure so erected interferes with the operation of plaintiffs’ franchise in the several respects therein enumerated. The conclusion of the chief justice and of the judge of special term is that this interference is not so serious and works no such irreparable injury, as to authorize a resort to equity by plaintiffs ; and that the laches of plaintiffs in lying by and permitting the structures to advance very considerably towards completion, and defendants to expend large sums of money upon them, is equally fatal to the relief by injunction demanded in this action.

This, it seems to me, is a harsh doctrine to apply against parties lawfully operating a franchise from the State, in favor of persons maintaining a' common nuisance which interferes in any degree with the franchise. If, for instance, the only inconvenience suffered by the plaintiffs from this structure of defendants is that the snow-plows commonly used by the former to clear their tracks of snow in the winter cannot now be used and must be cut down or altered in size or shape, whose loss, cash or convenience should be considered as of paramount importance by a -court •— that of the persons operating the franchise or those maintaining the -common nuisance % The same thing may be said of the numerous other particulars in which the owners of the franchise must suffer from the structures maintained alongside of their tracks without authority, which are peculiar to plaintiffs alone, and which are discussed in the opinion of the chief justice. Under ordinary circumstances it is the right of a person specially injured by a public common nuisance to abate it, and the right of the remedy by injunction in peculiar cases springs from the same authority.

The degree of special injury suffered cannot affect the right to abate the nuisance and should not weigh in considering the-right to enjoin it.

The position taken by the judge at special term that plaintiffs are barred of their equitable remedy because they lay by and suffered the construction by defendants to proceed so far before bringing their action, is hardly applicable as a legal doctrine to this case.

The defendants began the construction of their elevated road above Thirtieth street, nearly three years before the trial, it is said : for several years previous, it was operated from the Battery to Thirtieth street. The interference particularly complained of is that arising from the location of posts to support the structure immediately beside the tracks of plaintiffs’ road, and the running of trains immediately over plaintiffs’ cars. The location of defendants’ structure was not originally such as to give notice to the plaintiffs, that this interference would be attempted, for columns of defendants’ road for their original single track from the Battery to Thirtieth street, were located on the curb, and not in the carriage-way; and as this objection by plaintiffs goes not to the whole of the defendants’ structure, but to parts of it particularly interfering with them, and which can be shifted or displaced and constructed elsewhere without injuring the effectiveness of defendants’ road, it seems hard to decide that because plaintiffs suffered them to be set up and carried on for any distance, their right to relief against their continuance is gone ; they are common nuisances, even when in the public street.

My impression from the findings and evidence is that so far as the columns immediately adjoining plaintiffs’ tracks are concerned the decretal injunction asked for should have been granted.

Judgment affirmed.  