
    SIXTH AVENUE R. R. CO. v. GILBERT ELEVATED RAILWAY CO.
    
      N. Y. Superior Court; Trial Term,
    
    June, 1876.
    Again, General Term, January, 1878.
    [Reversing 41 Super. Ct. (J. & S.) 489.]
    Corporate Franchises.—Construction of Statutes.—Parol Evidence to Explain.—Trial, and Findings.—Eminent Domain.—Constitutional Law.—Nuisance.— Injunction.—Competing Franchises. —Rights of Abutting Owners. —Streets in New York.
    Under a charter authorizing defendants to construct a railway “ to be-operated by the plan known as Gilbert’s Improved Elevated Railway,” parol evidence is admissible to explain the power conferred, by showing that at and prior to the passage of the charter there-was a plan of railway known to members of that legislature by that, name.
    Members of such legislature when testifying on the subject may be asked what were their sources of knowledge; and may identify the-plan as made known to them at the time.
    A contemporaneous newspaper or periodical having circulation within the State, and containing an engraving and article descriptive of plan of the projector named, is competent so far as descriptive of anything therein alleged to be his plan; and so is evidence of the extent of the circulation of the publication.
    A witness present at conversations had by members of the legislature with the projector when the subject was under consideration, may be asked, how the projector described his plan to them.
    A plan or description circulated among members of a subsequent, legislature, who thereupon granted an extension of the time for construction, but by an act making no reference to the plan, is. incompetent.
    
    
      T)n a trial without a jury it is proper that the judge should determine all the material facts, and state his conclusions of law on them, instead of determining only so much as may lead to a judgment.
    
      A surface railroad company are not entitled to compensation as for the taking of their franchises and property, by reason of the impairment thereof by the construction of a competing elevated railway directly along and over their route.
    
    
      The fact that the structure of the competing railway exclusively occupies spaces in the street to which the surface railway is entitled, is not enough to sustain the claim to compensation, if the spaces have never been actually appropriated or used, and are not actually required by the latter.
    
    Legislative authorization of a parallel or a superimposed and competitive railway involves no appropriation or deprivation of the vested rights of the company owning a railway already constructed.
    
    The injury by competition in such case is damnum, absque injuria.
    
    Lands taken under the act of 1813 (L. 1813, 414, c. 86, § .178) authorizing the city of New York to take lands for public use “in trust, nevertheless, that the same be appropriated and kept open for, or as part of a public street, avenue, square or place forever, in like manner as the other public streets, avenues, squares, and places in the said city are and of right ought to be,”—belong to the city absolutely in fee simple; and the owners of abutting lots, though they may have been assessed for benefit, and though part of their lots may have been taken for the street, have no special interest in the maintenance of the street, nor any easement in the part so taken, other than that enjoyed by the public at large.
    The trust is for the benefit of the public, and the legislature have power to determine in what manner it shall be carried into effect.
    
    Illegality of the elevated structure at a single point or street-crossing, does not constitute such a wrong and injury as to sustain an injunction at the suit of the surface railroad company.
    I. Trial by the court, June, 1876.
    The plaintiff was a railroad corporation, created and organized under the general act of 1850, and as such corporation, for more than twenty years, it has owned and operated a double track horse railroad through Sixth avenue, from Amity street to the Central Park at West Fifty-ninth street; and, also, during the same period, it owned in fee certain lots of ground, with buildings and improvements thereon, fronting on Sixth •avenue, and described in the deeds, whereby they were conveyed to the plaintiff as “bounded westerly in front by Sixth avenue.”
    They had complied with the municipal requirements respecting their franchise and business; and had invested large capital in their property.
    For the purposes of the action, it was admitted, by a stipulation between the parties, that the portion of Sixth avenue between Amity street and Central Park, at Fifty-ninth street, was opened by proceedings had under and pursuant to the act of April 9, 1813, (Laws of 1818, ch. 86), and the laws amendatory thereof.
    The case of the plaintiff was in brief, that the defendants were incorporated by an act authorizing them only to build a tubular iron railway, operated by pneumatic power, supported on columns rising from the curb-stones, and that pretending to avail itself of the authority of commissioners appointed under the rapid transit act of June 17, 1875 {L. 1875, c. 606), they were engaged in constructing an entirely different kind of railroad on which vehicles, open to the view, were to be run by steam along a track supported by columns rising from the carriage-way by the side of plaintiff’s track. And it was claimed by plaintiff, that the rapid transit act of 1875, and especially section 36, was unconstitutional.
    In support of. its own exclusive franchise the plaintiff relied on the facts that the original grantees were authorized by the common council to lay their double track along Sixth avenue, &c., on condition of keeping the space between the tracks, and space outside, _at least eight feet in width, in good repair, running suitable cars as often as public convenience should require, under municipal direction, giving bonds for their compliance, and that the fare should not exceed five cents. That in pursuance of the grant, the mayor, aldermen and commonalty entered into an agreement, in whiting, with the grantees of the franchise and their successors, giving them the authority and consent of the common, council to lay their track, &c., accordingly, and the agreement provided that the railroad grant, property, rights and appurtenances should belong to the Sixth Avenue Railroad Company, and they claimed that,. upon faith of this contract and grant the plaintiffs built their road and equipped it, at great expense. They also relied on the act of 1854 (L. 1854, p. 323, ch. 140, § 3) by which municipal grants and resolutions of that character were declared to be “hereby confirmed.”
    The defendants’ case was, in brief, that by the act of 1872 they were authorized to construct an elevated railway to be operated by the plan “known as ‘Gilbert’s Improved Elevated Railway ’ ; ” but they denied that that plan was merely a tubular railway operated by pneumatic power, or that it required that the movement of cars, or the application of motive power should be concealed from the street below, or should take place within atmospheric tubes. That in or before the year 1871, Gilbert had devised the plan and patented what he called “Gilbert’s Improved Atmospheric Railway,” but that this plan he was not able to carry out, and that, in 1872, he abandoned the use of pneumatic power as a feature, and adopted rails in the open air, suitable for the running of cars by steam, with or without small pneumatic tubes for carriage of packages ; and that this plan was the one referred to in the act of 1872, as “Gilbert’s Improved Elevated Railway.”
    The defendants relied, also, on an act (L. 1873, c. 837) granting the route established by the commissioners appointed under their charter ; and the act (L. 1874, c. 275) supplementary to their charter requiring them to give bonds to the city in case their railway should not be constructed within six months after the time specified, the time being extended so long as the work might be necessarily and unavoidably delayed by pendency of legal proceedings. And lastly, upon the rapid transit act of 1875 (L. 1875, c. 606), and the proceedings of the commissioners thereunder, which, they claimed, authorized those commissioners, in case they should locate a rapid transit road on a line already granted by a charter to a corporation, such corporation should have the prior right to erect the road on complying with the requirements of the commissioners.
    The main question on this part of the case was whether the differences between the structure contemplated by the charter, and powers of the company previous to the constitutional amendments of 1874-5, and those of the plan prescribed by the rapid transit commissioners, under the subsequent act of 1876, involved a grant of new powers to the corporation; which would be void.
    There differences were, briefly, as follows: The original act authorized the construction of an elevated track over the center of the street (whether open or tubular being contested, as will hereafter appear), supported by arches or girders springing from columns placed along the line of the curb-stone of each sidewalk on Sixth avenue, thus leaving the entire carriageway free. The method of construction prescribed by the rapid transit commissioners under the act of 1875, authorized the supporting of open tracks upon transverse girders directly over the surface railroad, in the center of the avenue, and supported by columns placed in theroad-way, one row on each side of the plaintiff’s tracks, and about two feet therefrom, and some twenty feet from the curb of the sidewalk.
    The defendants, before the commencement of this action, began their excavations in the carriage-way of the Sixth avenue for the erection of their posts, and the consent of the owners of the property on the avenue had not been obtained, nor had commissioners been appointed by the supreme court to determine whether the railroad ought to be built there, as required by the constitutional amendments, in case of powers conferred upon corporations after the adoption of said amendments.
    The avenue was one hundred feet in width, and the width of the carriage-way was sixty feet. The construction of plaintiffs’ railway in Sixth avenue was not commenced until February, 1876.
    The cause was tried before Hon. John Sedgwick, without a jury.
    
      Wm. M. Evarts, George F. Comstock, and Joseph H. Choate, for plaintiffs.
    
      John K. Porter, H. H. Anderson, James C. Carter, Grosvenor P. Lowrey, and Chas. Francis Stone, for the defendants.
    After evidence, the substance of which has been stated,
    
      Mr. Choate, for plaintiffs, called Erastus C. Benedict, who was a member of the legislature when the defendants’ charter was granted, and put in evidence, identifying them by the witness, a printed copy of senate bills, Nos. 230 and 395, and then asked:
    Q. While you were a member of the legislature, prior to the passage of the bill, was there a plan of a railway known to you as Hilbert’s Improved Elevated Railway %
    
    
      Mr. Lowrey objected to this, as incompetent. The question was allowed and an exception taken by defendants.
    A. Yes, sir; that is, I have a general knowledge of it.
    Q. Please state what that plan was % A. The plan was a tube.
    Sedgwick, J.—You may ask him what his sources of knowledge were.
    Q. State the sources of the general knowledge you had of the plan? A. As a senator from the city of New York, I felt myself in duty bound to examine carefully every question of rapid transit that came before the senate. There were four or five before the senate, I believe, all of which passed, I think, and I looked into and made inquiries about them before I acted upon them. I would get all the information I could from every source; I would ask one man and another; perhaps I would ask the chairmain of the committee; perhaps I would ask another member; perhaps I would ask a friend sitting next to me at the hotel table. I would make inquiries from various sources.
    Q. Do you "remember as one of the sources of your knowledge, a plan, or picture, or exhibit, that was presented to senators and used in the senate ?
    
      Mr. Lowrey objected. The objection was overruled, and defendants excepted.
    A. Yes, sir.
    Q. What did the picture show ? A. It was a lithographic picture, representing a gothic arch on columns.
    Sedgwick, J.—Before he describes the picture, let him state what the designation of the plan was.
    Q. Was that picture designated as the plan of Gilbert’ s Elevated Railroad ? A. I think it has those words on it.
    Q. It was circulated among senators, was it not ?
    
      Mr. Lowrey objected.
    Q. Please state in whose hands you saw it ? A. My recollection is that it was in my own hands.
    Q. You examined it? A. I looked at it.
    Q. Please state what this picture depicted as the plan of Gilbert’s. Improved Elevated Railway? A. I was going on to state, that it represented a gothic arch resting on columns on the line of the curb-stone on each side of the street, and the top of this arch was in the center of the street, up in the skies somewhere.
    Q. The tubes were at the center ? A. Yes, sir ; on the point of the arch were two tubular contrivances in which the cars had to run.
    Q. Were the tub.es cylindrical or square % A. ¡Cylindrical.
    Q. Tubes of sufficient size to admit of the passage of cars? A. I suppose so ; I don’t go into the dimensions very much.
    Q. Look at the exhibit annexed to the complaint in this case, and state in what respects, if any, that is a repetition of the picture or plan you have referred to (handing witness exhibit) ? A. That seems to be a picture of what was called Gilbert’s proposed city elevated railroad.
    Q. When the bill was introduced by you, and when it was finally passed, was there, to your knowledge, any other plan of railway known as Gilbert’s Improved Elevated Railway ? A. I don’t know of any other.
    
      Mr. Choate after wards called Orson B. Munn, a proprietor and publisher of the Scientific American, in. the year 1872, who identified a file of that paper for that year.
    Q. How large was the circulation of the Scientific American in April, 1872 ?
    
      Mr. Lowrey objected to the question as not being competent evidence of the meaning of the language of the act. The objection was overruled, and an exception taken by the defendants.
    A. Forty-one thousand,
    Q. And in what parts of the country was that circulation distributed ? A. Every portion of the country.
    Q. Can you tell how much of it was in the city and State of New York. A. I could not.
    Q. And did this number of April 18, 1872, receive as extensive a circulation as the ot her numbers ? A. Yes, sir ; as far as I know.
    
      Mr. Choate. We offer in evidence the Scientific American of April 13, 1872, under the evidence of Mr. Munn, with the engraving, and the article accompanying it of that date.
    
      Mr. Lowrey objected to this as not being competent-evidence of the meaning of the language of the act in question.
    Sedgwick, J., admitted the printed matter and the picture so far as the same are descriptive of anything that is therein alleged to be Gilbert’s plan.
    Defendant excepted as well to the whole evidence offered, as to the introduction of the printed matter aside from the picture.
    The picture is a fac simile of exhibit A, annexed to the complaint.
    
      Mr. Choate read the following from the Scientific-American of April 13, 1873: “Among the recent projects for rapid transit in New York, is that of Mr. R. H. Gilbert, for an elevated railroad on the plan so-tastefully represented in the accompanying engraving.
    "The plan is to place along the street, at distances of from fifty to one hundred and fifty feet, compound gothic iron arches which shall span the street from curb to curb, at such an elevation as shall not interfere with the ordinary uses of the street. On these arches a double line of atmospheric tubes, eight or nine feet in diameter, are to be secured. The arches are strongly connected with each other by means of a vertical latticed or trussed girder running between the tubular ways, which are to be firmly joined to it on either side by ties of suitable construction. Through the tubes, supported as described, cars carrying passengers are to be propelled by atmospheric power.” * * * *
    
    
      Mr. Choate afterwards called Origen Vandenburgh, who was in attendance on the legislature, although not a member, in the year 1873, endeavoring to promote the interests of the underground railway, and was present at several meetings, of the railroad committees of both houses and joint meetings of those committees. He did not remember to have seen Dr. Gilbert before the committees while in session, but had heard him in conversation, in the latter part of the session, where members of the committee were present.
    Q. How did you hear him describe his plan to the members of the legislature ?
    Sedgwick, J.—You say members of the legislature; or members of the committee ?
    
      The Witness.—Members of the legislative committee : I heard him describing the plans to Mr. Whitbeck, a member of the railroad committee. Mr. White, a gentleman who was here present this morning, the chairman of the railroad committee of the senate, was present a portion of the time. Mr. Madden, chairman of the railroad committee, was present during the whole or some portion of the conversation to which I am now referring ; that was on the cars of the Hudson. River Railroad, returning from Albany.
    
      Mr. Lowrey objected to this as incompetent.
    Sedgwick, J., overruled the objection; and defendant took an exception.
    Q. State the conversation % A. Mr. Gilbert was understood to be the promoter of this measure.
    Q. State now the conversation—the description that he gave of the plan ? A. It was a structure on iron columns.
    [The remainder of the testimony of this witness did not raise any important ruling.]
    
      Mr. Lowrey, for the defendants, among other witnesses called Rufus H. Gilbert, the projector of the road, who gave testimony to the effect that he had two plans, the first of which was for an atmospheric motor, for which he unsuccessfully endeavored to get a charter in 1871, and the second for steam trains on an open track, on which he applied for and obtained the charter in question ; and that in 1874, two years after the grant of the charter, he obtained the passage of an amendment extending the time for construction of the road. The witness identified a copy of “ Frank Leslie's Illustrated Newspaper,” printed in December, 1872, with an engraving and description showing the plan of steam trains of ordinary cars on an open track, and testified that in 1874, when he went to Albany to secure the amendment, he took copies of this with him.
    
      Mr. Lowrey.—State whether you handed it, or communicated it, to any persons ; if so, to whom ? A. I presented it to members of the railway committee, and to other members of the assembly and senate.
    Q. Do you know whether it had any very general circulation there at that time? A. It was freely handed about as illustrating the plan.
    Q. Was this before or after the passage of this supplementary act of 1874 ? A. It was before; it was while the question was pending.
    Q. Was this handing about of the paper done by you as. a part of your promotion of that bill ? A. Yes, sir.
    Q. And for the purpose of obtaining the passage of the bill ? A. Yes, sir.
    
      Mr. Lowrey offered the paper in evidence.
    
      Mr. Choate objected on the ground that there is no phrase in the act of 1874 in regard to the plan, or the authority or power. It is merely an extension of time.
    Sedgwick, J., sustained the objection; and defendant excepted.
    
      
       The ruling in case in the text stands partly on the familiar principle that in the interpretation of any document extrinsic evidence of the surrounding circumstances is admissible for the purpose of enabling the court to look at the language in the same light as did the party from whom it proceeded. It seems to go farther than many authorities in the books in allowing the language of the legislature as a body to be explained by the conversations and discussions of members. In this it is undoubtedly correct although apparently contrary to the doctrine of some decisions. The freer rules of evidence now prevailing have enlarged somewhat ancient restrictions in this respect.
      The rule stated by Wharton is as follows :
      “ In an interpretation of a statute the whole context must be taken together. Even the title and preamble are for this purpose to be taken into account. But the judges are permitted to go outside of the statute to consider the law as it stood before the statute, and the circumstances of its passing, so far as shown by the records of the legislature (citing Sedg. Stat. L. 203). Hr. Sedgwick, indeed, says, that 'we are not to suppose that the courts will receive evidence of extrinsic facts as to the intention of the legislature, that is, of facts which have taken place at the time of, or prior to, the passage of a "bill.’ But as the courts will take judicial notice of matters of notoriety, it will not b«- necessary for evidence, in its strict sense, to be taken, to enable a survey to be made by the court of the condition of things leading to a statute. Such a survey is, in fact, inevitable, to a degree greater or hiss. At the same time the courts unite in refusing to push the extrinsic facts thus to be taken notice of beyond the limits of notoriety, ns heretofore defined, and there is no case in which witnesses or documents have been received as evidence of extrinsic facts. In this sense we may accept Mr. Sedgwick’s conclusion, ‘ that for the purpose of ascertaining the intention of the legislature, no extrinsic fact prior to the passage of the bill, which is not itself a rule of law or an act of legislation, can be inquired into or in any way taken into view.’”2 Whart. Ev. § 980 a, citing Sedg. Stat. L. 209 ; also Waller v. Harris, 20 Wend. 555; Southwark Bk. v. Com., 26 Penn. St. 446; Hadden v. Collector, 5 Wall. 107; Delaplane v. Crenshaw, 15 Grat. 457; Harris v. Haynes, 30 Mich. 140; Scanlan v. Childs, 33 Wisc. 665; Keith v. Quinney, 1 Oregon, 364; Union P. R. R. v. U. S., 10 Ct. of Cl. 518.
      For the distinction between acts of the body and declarations of members, see. also, Rex v. Hunt, 3 Barn. & Ald. 566; Marigny v. Union Bk., 5 Robt. (La.) 354 ; City of Selma v. Mullen, 46 Ala. N. S. 411.
      It was held in Osburn v. Staley, 5 W. Va. 85; S. C., 13 Am. 3. 
        640, a well considered case, where a number of authorities are reviewed, that the court may look beyond the authentication of the act to the journal of either branch, to see if the bill passed by the constitutional vote.
      As to whether the court is bound to look at journals, &c., see 4 Oenbr. L. J. 133-139; Moody «. State, 48 Ala. W. S. 115.
      
      In Gardner v. The Collector, 6 Wall. 511, the rule is laid down that, whenever a question arises in a court of law, of the existence of a statute, or the time when a statute took effect, or the precise terms of a statute are in question, the judges have a right, unless a different rule has been enacted, to resort to any source of information, which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question; always seeking first for that which in its nature is most appropriate. Hence, they may look to-other connected records to ascertain the date of enactment if no date appears in the official certificate.
      In Grob *. Cushman, 45 III. 119, it was held on the other hand „that the court will not, and it seems cannot take notice of the legislative-journals, for the purpose of ascertaining whether a statute was constitutionally passed.
      In Louisiana State Lottery Co. •v. Richoux, 33 La. An. 743; S. C., 8 Am. B. 603, it was held that if a law has been regularly promulgated' according to the forms of the constitution, its invalidity will not be examined or passed upon by the judiciary on alleged irregularities or informalities committed by the general assembly in passing it, nor will parol evidence be received to show that the general assembly have not complied with the requirements of the constitution in passing it.
      In the Mayor of Annapolis e. Harwood, 33 Md. 471; S. 0., 3 Am. B. 161, it was held that in an action under an act of the legislature, which act had been signed by the governor, certified under the great seal, and published as required by the State constitution, evidence-was inadmissible to show that the contents of the act had been changed by a mistake of the engrossing clerk.
      In Pangborn v. Young, 3 Vroom, 39, it was held that an exemplification under the great seal, of an act of the legislature signed by the-speaker of each house, and by the governor, and filed in the office of the secretary of State, cannot be varied by evidence from the journals of the two houses.
      In Sherman v. Story, 30 Gal. 353, it was held that neither the journals of the legislature, nor the bill as originally introduced, nor the amendments attached to it, nor parol evidence, can be received in order to show that an act of the legislature, properly enrolled, authenticated, and deposited with the secretary of State, either did not become a law in accordance with the prescribed forms, or did not become a law as enrolled.
      In State 0. Platt, 3 So. Gar. 150, held, that the official copy of a statute, duly enrolled and authenticated, 'is not conclusive evidence of the terms of the statute as actually passed by the legislature.
      See also Garrett 0. R. R., 78 Penn. St. 465.
      If an act is found to have been passed by a constitutional vote, the legislative journals, or other sources of information, are not legitimate evidence to impeach it on the ground of irregularity or departure from parliamentary usage in the proceedings of the legislature. People 0. Devlin, 33 H. T. 369.
      The following recent cases further illustrate the subject, and will afford convenient clue to the earlier cases.
      The presumption, from its proper authentication, that a statute was regularly and constitutionally enacted, is not conclusive. Legg 0. Mayor, &c. of Annapolis, 43 Md. 303.
      When, in a court of law, a question arises as to the existence of a statute, or as to the time it went into effect, or as to its precise terms, the judge may resort to any source of information, which, in its nature, is capable of conveying a satisfactory answer to the judicial mind, the best and most satisfactory evidence being required. Ib.
      
      In construing an act of Congress, the courts may recur to the history of the times when the act was passed, but not to the views of individual members in debate, nor the motives influencing them to vote. United States 0. Union Pacific R. R. Co., 91 TI. 8. (1 Otto) 79.
      Where it appeared that the peculiar phraseology of an act of Congress, apparently contradictory in terms, was the result of an amendment introduced without due reference to the language in the original bill, it was interpreted by a reference to the journals of Congress. Blake 0. Mat. Bank, 33 Wall. 307, 331.
      Enrolled acts of the legislature, when signed by the presiding officers of the two houses, approved by the governor, and deposited in the office of the secretary of State, are prima facie, but not conclusive evidence of existence and regularity and constitutionality of passage. Brady v. West, 50 Miss. 68; Bradley v. West, 60 Mo. 33. Compare Division of Howard Co., 15 Kan. 194.
      The certificate of the secretary of State, showing proceedings of either branch of the legislature in relation to the passage of a bill, is competent evidence to show whether the act was passed in the constitutional mode; and if it purports to give all the proceedings, it cannot be inferred that any others were had. Ryan «. Lynch, 68 III. 160.
      The journals of the two houses may be examined to aid in determining what was the action of the legislature. Berry ». Baltimore, &c. R. R. Co., 41 Md. 446.
      Where a bill with a certain number and title was introduced, read a first and second time and referred to a committee, and the committee afterwards reported back a bill with the same number, but with a slightly different title with amendments, which was finally passed; held, that these facts did not impeach the validity of the passage of the bill. Larrison v. Peoria, &c. R. R. Co., 77 III. 13.
      Where a bill was passed by both branches, but with amendments by the senate in which the house refused to concur, and the senate then by a vote by yeas and nays properly entered on the journal, receded from its amendments, and the bill was not passed in any other way; held, a sufficient passage. Division of Howard Co., 15 Kan. 194.
      Courts cannot go behind a duly enrolled and authenticated public statute to inquire into the motives of members of legislature. Evidence of bribery and corruption is not admissible. State v. Fagan, 33 La. Ann. 545.
      When the language of a statute is definite and has a precise meaning, conjecture or other means of interpretation cannot be resorted to to restrict or extend it. Johnson v. Hudson River R. R. Co., 49 K. T. 455.
      Where the language is doubtful, and the same words have different meanings, used under different circumstances, or to effect different objects, resort maybe had to extrinsic circumstances; and courts may seek for that intent in every legitimate way. People v. Schoonmaker, 63 Barb. 49.
      The entire subject of a statute, and the policy of the law, may be invoked to aid in the interpretation, and the classical construction of a word will not always give the meaning which use has attached to it. State ». Mayor of Paterson, 35 K. J. L. 197.
      
        Contemporaneous legislation, although not precisely in pari materia, may be referred to. Smith v. People, 47 N. Y. 330.
    
    
      
       See also Micou 0. Tallahassee Bridge Co., 47 Ala. H. S. 653; Christopher, &c. St. R. R. Co. 0. Central Orosstown R. R. Co., 67 Barb. 315; 4 Hun, 630.
    
    
      
       Compare Johnson v. Utica Waterworks Co., 67 Barb. 415, and cases cited.
    
    
      
       See pp. 347, 348 and note.
    
    
      
       See Fearing v. Irwin, 55 N. Y. 486; affi’g 4 Baby, 385. The question whether a use is a public one is a judicial question, and the legislative declaration is not conclusive. Matter of Deansville Cemetery Asso., 66 N. Y. 569, rev’g 5 Hun, 482.
    
    
      
      Reported on p. 401 of this vol.
    
    
      
      L. 1813, c. 86, § 178; see p. 375 of this vol.
    
   Sedgwick, J.,

after the conclusion of the trial, rendered an opinion, to the effect that the Gilbert railroad acts authorized use of steam, without tube or equivalent screen, but that section 36 of the rapid transit act “was unconstitutional and void, that the defendant had no authority, in law, to construct its proposed railroad, either by virtue of its charter or the provisions of that act, and that the Sixth Avenue Railroad Company suffered an injury peculiar to itself in the placing of the posts in the roadway ; and accordingly that the plaintiff was entitled to a perpetual injunction restraining defendant from building such railway (Reported in 41 Superior Ct. [J. & S.] 489).

II. Appeal to the general term.

From the judgment entered upon the findings of the judge the defendants appealed.

Grosvenor P. Lowrey, Charles Francis Stone and John K. Porter, for appellants, cited:

I. As to the limits under which this court should review the special term judgment: Wisser v. O’Brien, 3 Super. Ct. (J. & S.) 149, 152; Munro v. Potter, 34 Barb. 361; Mills v. Van Voorhies, 20 N. Y. 412, 423.

II. As to the pretended franchise: L. 1854, p. 323; Thompson v. N. Y. & H. R. R. Co., 3 Sandf. Ch. 625.

III. As to the obligation of contracts generally: Charles River Br. Co. v. Warren Bridge Co., 11 Pet. 420; Auburn, &c. Co. v. Douglass, 9 N. Y. 444; Rensselaer, &c. R. R. v. Davis, 43 Id. 137; Mohawk Bridge Co. v. Utica, &c. R. R., 6 Paige, 554; Ft. Plain Bridge Co. v. Smith, 30 N. Y. 44.

IV. As to the easement claimed by plaintiffs: Dunham v. Williams, 37 N. Y. 251; 1 Smith & Liv. Laws, 8; L. 1691, c. 18; 1 Hoffm. on Estates of Corp. 199; Schuchardt v. Mayor, &c., 53 N. Y. 202; People v. Kerr, 27 Id. 188; Kellinger v. Forty-second Street R. R. Co., 50 Id. 206; Matter of Ninth Avenue, 47 Id. 732; Anderson v. Rochester, &c. R. R., 9 How. Pr. 553; Higby v. Camden & Amboy R. R., 19 N. J. Ch. 279; Currier v. West Side R. R., 6 Blatchf. 495; Wyman v. Mayor, &c., 11 Wend. 494; Wetmore v. Story, 22 Barb, 488; In re Thirty-ninth Street, 1 Hill, 194; In re Thirty-second Street, 19 Wend. 129; Livingston v. Mayor, &c., 8 Id. 85; Torrey v. Camden & A. R. R., 18 N. J. Ch. 293; Cross v. Mayor, Id. 305-313; Higby v. Camden & A. R. R., 19 Id. 276; City of Philadelphia’s Appeal, 78 Pa. St. 39; 22 Eng. L. & E. 246; Arnold v. Holbrook, 42 Law J. Q. B. 83-84; Dime v. Petley, 15 Q. B. 276; Jersey City R. R. v. Hoboken R. R., 5 C. E. Green, 70; N. Y. & Harlem R. R. v. Forty-second Street R. R., 26 How. Pr. 70, 71; affi’d in 32 Id. 500; 50 Barb. 285; Id. 309; Carver v. Paul, 24 Penn. 207; Godley v. City of Philadelphia, Id. 637, 640, 641, 642-3; Polack v. San Francisco Orphan Asylum, 38 Cal. 490, 493; Fearing v. Irwin, 55 N. Y. 486; People v. Mayor of Brooklyn, 4 Id. 424; L. 1831, c. 252, § 2; Davies, 723; 8 Barb. 97-98; Waddell v. Mayor of N. Y., Id. 98; Wilson v. Mayor, 1 Den. 595; Elizabeth R. R. v. Combs, 10 Bush, 382; S. C., 19 Am. Rep. 72; Barnes v. South Side R. R., 2 Abb. Pr. N. S. 415; Attorney General v. L. B. R. R., 9 C. E., Green, 49; Hodgkinson v. L. I. R. R., 4 Edw. 411; Thompson v. R. R., 3 Sandf. Ch. 624.

V. As to the trust supposed to exist under the act of 1813, § 107: Briggs v. Davis, 21 N. Y. 577; Reg. v. Russell, 3 Ellis & Bl. (77 Eng. C. L.) 953; L. 1813, § 178; City of Georgetown v. Alexandria Canal Co., 12 Pet. 91, 96; People v. Roper, 35 N. Y. 636, 637; Embury v. Conner, 3 Id. 511, 2 R. S. (6 Ed.) 526, § 20; L. 1807, c. 115, §§ 4, 8; L. 1827, c. 239 (Davies, 687), § 1; Worcester City v. Worcester, 110 Mass. 353; Wellington v. Petitioners, 16 Pick. 88; Casey v. Harned, 5 Iowa, 14; L. 1810, c. 127; Davies’ Laws, p. 455; L. 1813, §§ 178, 185; Davies, pp. 532, 539; Matter of Turfler, 44 Barb. 52; Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 245; Smith v. City of Boston, 7 Cush. 254; Gould v. Hudson R. R. R., 6 N. Y. 522; Radcliff v. Mayor, 4 Id. 195; Wilson v. Mayor, 1 Den. 595; Lansing v. Smith, 8 Cow. 149; Garrison v. City of N. Y. 21 Wall. 203, 204.

VI. The evidence as to obstruction and damage Tate v. Ohio, 7 Ind. 483, 484; Williams v. Beardsley, 2 Carter (Ind.) 596; Dougherty v. Bunting, 1 Sandf. 1.

VII. As to crossing Broadway: It will be observed that the word “across ” is imported by construction into the exception, from the previous enabling clause ; and as the evident object of the exception was simply to prevent the building of steam railways on the line of those particular streets, we submit that by a fair -construction the exception should be so limited.

Joseph H. Choate and George F. Comstock, for respondent.

I. No questions arising out of the conflicting rights of the plaintiff and defendant, were involved in the decision of the court of appeals in the matter of the New York Elevated Railroad. Nothing was there involved but the constitutionality and the ■construction of the rapid transit act.

II. If the plaintiffs have a property interest either in their existing railroad and franchise, or by virtue of, and as appurtenant to, their real estate abutting on the Sixth avenue which is in the least degree to be taken away or destroyed, they have a right to an injunction until just compensation has been made to them there for (Trustee of Presb. Soc. v. Auburn, &c. R. R. Co., 3 Hill, 567; Williams v. N. Y. Cent. R. R. Co., 16 N. Y. 97; Milhan v. Sharp, 27 Id. 611; 2 Story Eq. Jur. § 925: Craig v. Rochester City, &c. R. R. Co., 39 Id. 404; Mahon v. N. Y. Cent. R. R. Co., 24 Id. 658; Carpenter v. Oswego, &c. R. R. Co., Id. 655; Wager v. Troy Union R. R. Co. 25 Id. 526; Bloodgood v. M. &. H. R. R. Co., 18 Wend. 9).

III. As owners of property fronting on Sixth avenue the plaintiff, and other owners of similar property, have a right that that street shall be maintained as a highway, and kept open forever, for all the uses and purposes of a highway unincumbered throughout its whole length and breadth, in accordance with the provisions of the act of 1813, under which it is formed, unless compensation is made for its obstruction (Heyward v. Mayor, 3 Seld. 314; Metropolitan Board of Works v. McCarthy, L. R. 7 App. Cas. 243; Becket v. Midland R. W. Co., L. R. 3 C. P. 82; Chamberlain v. West of London R. W. Co., 2 B. &. S. 605; Pumpelly v. Green Bay Co., 13 Wall. 166; Gardner v. Newburgh, 2 Johns. Ch. 162; Crawford v. Delaware, 7 Ohio St. 459; Cincinnati, &c. Ry. Co., v. Cumminsville, 14 Id. 523; Roberts v. Easton, 19 Id. 78).

IV. Compensation for what is in all cases essential, and is made by the constitution a condition precedent and as a substantial and valuable part of plaintiff’s property is proposed to be taken, it is entitled first to receive the full value of that (Cooley on Constitutional Limitations, 526; West River Bridge v. Dix, 6 How. U. S. 507; Richmond R. R. Co. v. La. R. R. Co., 13 Id. 81; Central Bridge Corp. v. Lowell, 4 Gray, 482; Boston Water Power Co. v. Boston &. W. R. R. Co., 23 Pick. 360; Commonwealth v. Pittsburgh, &c., R. R. Co., 58 Penn. St. 50; Same v. Penn. Canal Co., 66 Id. 41; Newcastle, &c. R. R. Co. v. Peru and Ind. R. R. Co., 3 Ind. 464; Charles River Bridge v. Warren Bridge, 11 Pet. 571).

V. The route laid out by the commissioners is in express violation of the prohibitions against crossing Broadway.

VI. If the corporate property, rights and franchises, of the plaintiffs are to be taken away, destroyed or substantially impaired by the defendants without just compensation first made, the acts authorizing it are in violation of the United States constitution (Milhan v. Sharp, supra; People v. Sturtevant, 9 N. Y. 263; West Bridge Co. v. Dix, 6 How. U. S. 507; Boston & Lowell R. R. Co. v. S. & L. R. R. Co., 2 Gray, 35; 3 Kent Com. 458; Benson v. Mayor, &c., 10 Barb. 223; The Binghamton Bridge, 3 Wall. U. S. 51, rev’g 27 N. Y. 87; Wilmington R. R. v. Reid, 13 Id. 264.

Sanford, J.

The learned judge before whom this action was tried at special term, reached the conclusion that the defendant, the Gilbert Elevated Railway Company, had no authority in law, to construct the elevated railway in Sixth avenue, between Amity and Fifty-ninth streets, which it proposed to build pursuant to its charter and under the provisions of the rapid transit act (Laws of 1875, ch. 606), and for the reason that the thirty-sixth section of that act, upon which the defendant’s right to proceed with such construction depended, was unconstitutional and void. He accordingly rendered judgment, that the defendant be enjoined and forever restrained from building such railway. The question of the validity of the rapid transit act, and particularly of section 36, has since been presented to the court of appeals in certain proceedings entitled: “In the matter of the petition of the New York Elevated Bail way Company,” and in other like proceedings, on the part of the defendant herein, on appeals entitled Kobbe v. The Gilbert Elevated Railway Company and Anderson v. The Same. And that court has, in those cases, finally and authoritatively determined, that the rapid transit act is not obnoxious, in whole or in part, to the constitutional objections urged against its validity: and that under and by virtue of its charter and the provisions of that act the defendant has good right and lawful authority to build over the route provided for it by law, including the Sixth avenue, the railway whose construction is enjoined by the judgment now under review. It is, therefore, obvious that the judgment appealed from cannot be sustained upon the ground upon which it was rendered, and that, unless other sufficient reasons for affirming it can be gathered from the pleadings, proofs, and findings upon which it was based, it will now be the duty of the appellate branch of the court to direct its reversal.

On the part of the plaintiff and respondent, the Sixth Avenue Railroad Company, it is insisted that the case, as presented, conclusively shows that that company has property rights and interests, both in its existing railroad and franchises, and also as incident or appurtenant to its lands abutting on the Sixth avenue, the beneficial enjoyment'whereof will be destroyed, impaired or disturbed by the construction and operation of the defendant’s proposed railway ; that such rights and interests are protected by the constitutional prohibition against the appropriation of private property to public use without just compensation; and that the ascertainment of the amount of such compensation, the appraisal of the damages incurred or sustained by reason of such destruction, injury or disturbance, and the payment, tender or offer of such compensation, when the amount thereof shall have been determined in the manner provided by law, are conditions precedent to the right of defendant to construct its proposed road ; and finally, that it is entitled by reason of the threatened invasion of such rights and interests to an injunction from a court of equity to restrain the construction of the defendant’s road until such compensation shall have been made.

It is obvious from a perusal of the opinion filed by the learned judge, at special term, that the views therein expressed cover but a part of the case as it was presented 'at the trial. His determination that section 36 of the rapid transit act was unconstitutional and void, rendered it, in his judgment, unnecessary and unadvisable to pursue Ms inquiries further, inasmuch as by so doing nothing would be gained toward practically determining the rights of the parties. He accordingly declined to consider or pass upon other “grave and important questions” involved, including those now presented to the consideration of the court. In view of this fact, and as the case has not been fully considered in all its aspects, we should, perhaps, under the authority of Mills v. Van Voorhis (20 N. Y. 412), be justified in reversing the judgment, and directing a new trial, without inquiring whether upon other grounds than that on which the judgment in its favor was rendered, the plaintiff is entitled to the relief thereby accorded to it. The plaintiff would thus have an opportunity to secure more explicit findings of fact in regard to the proprietary rights and interests with which it claims to be vested, and more specific and deliberate conclusions therefrom as to the legality or lawlessness of their threatened invasion. It would seem that such questions ought to be passed upon deliberately by the tribunal of first instance before they are presented for adjudication to the appellate branch of the court. We have, however, thought it not improper, at the urgent instance of the respondent’s counsel, to inquire whether the judgment can be sustained, upon the propositions for which they now contend, and we have done so in the hope that the progress of the cause toward a complete and final adjudication might thus be accelerated.

In announcing the result of our deliberations it will be unnecessary to do more than state, briefly, the conclusions at which we have arrived, with the reasons therefor, without endeavoring to enforce them by illustration or argument.

The case shows no such invasion and partial destruction of the plaintiff’s road and franchise, as entitles it to compensation under the constitutional provision for the protection of private property proposed to be taken for public use, in the exercise of the right of eminent domain. Compensation must doubtless be made for the appropriation and condemnation of corporate property and franchises, taken in the exercise of the right of eminent domain, equally as in case of the like appropriation or destruction of individual property and rights ; but it appears that no part of the plaintiff’s road, as it has been constructed and now exists, will be in anywise disturbed or interfered with by the execution of the plan, upon which it is proposed to erect the structure constituting the defendant’s elevated road. While it is found as a fact in the case, that the columns, to be erected on either side of the plaintiff’s tracks, will exclusively use and occupy spaces in the street, to the use of which the plaintiff is entitled, for the purposes of its franchise, there is no finding and no evidence that any space actually appropriated by the plaintiff to such purposes, or which now is or ever has been in its actual use and occupancy therefor, will be invaded, encroached upon or injuriously approximated by the defendant’s columns, platforms, stair-ways or any other parts or portions of its proposed structure. It cannot therefore be claimed that the plaintiff is entitled to compensation for the deprivation of any part of its road, considered as a physical and corporeal entity. The plaintiff’s franchise ■ entitles it to the use of every part of the entire space in the roadway of the Sixth avenue, to the extent requisite for the laying down thereon of a railroad with a double track, but its franchise is not to be construed as appropriating to its future exclusive use and occupancy spaces not requisite for that purpose after it has already exhausted the privilege accorded to it, by appropriating so much of the roadway to the purposes of a double track as its exigencies actually require (N. Y. & Harlem R. R. Co. v. The Forty-second Street, &c., R. R. Co., 50 Barb. 285; affi’d Id. 309).

The alleged appropriation or invasion of any part of the plaintiffs’ road is expressly negatived by the finding that the running of defendants’ cars and engines upon the Sixth avenue over plaintiffs’ road, in case the defendants’ road were constructed,- would not prevent the practical running of plaintiffs’ cars by horses, or materially increase the expense of such running. The alleged invasion of its franchise, which consists in the right to lay a double track, and to run licensed cars thereon, does not appear either in the facts found or in the evidence, inasmuch as there is nothing in either tending to show that ample space for laying a double track on the surface of the avenue is not, and will not be fully available to the plaintiff, notwithstanding the erection of the structure proposed by the defendant, or that the running of its cars thereon will be in any degree obstructed or interfered with. The plaintiff, by virtue of its franchise has no control over or interest in that part of the avenue not occupied by its tracks, or actually traversed by its cars (N. Y. & Harlem R. R. v. Forty-second Street R. R., ut supra). Moreover plaintiffs’ rights and powers, as a railroad corporation organized under the general law, must be exercised in conformity with, and in subordination to such constitutional legislative requirements and conditions, as are, or may be, imposed by valid legislative enactment. Legislative authorization of a parallel and competitive railway involves no appropriation or deprivation of the vested rights and franchises of a railway already constructed, and is not an exercise of the right of eminent domain (Charles River Bridge Co. v. Warren Bridge Co., 11 Peters, 420; Auburn, &c. Co. v. Douglas, 9 N. Y. 444; Rensselaer, &c. R. R. v. Davis, 43 N. Y. 137; Ft. Plain Bridge Co. v. Smith, 30 N. Y. 44). Any loss or damage sustained by reason of the competition of such lawfully authorized railway, is damnum absque injuria for which no compensation can be required. Private property cannot be said to be taken for public use, in the exercise of the right of eminent domain, merely because its value is impaired by the proximity of other property legitimately employed for the public use and benefit under the sanction and by the authority of a legislative enactment. The finding, therefore, that the construction and operation upon the Sixth avenue, of defendant’s proposed railroad would occasion special damage and injury to the plaintiff, is of no importance as bearing upon the question of the plaintiff’s constitutional right to compensation for an interference for the public benefit, with the beneficial use and enjoyment of its property. If the proposed elevated railway, as was held at special term, was unauthorized by law and a public nuisance, such finding would be essential to the maintenance, by the plaintiff, of an action to enjoin its construction; but, inasmuch as it is not a public nuisance, and as the use to be made of so much of the avenue as it shall of necessity occupy, is duly authorized by law, and is declared to be a public use, consistent with the uses for which such avenue is publicly held, this finding is immaterial. Such special damage results from no interference on the part of the defendant with either the franchise or tracks of the plaintiff. The plaintiff’s railroad and its double track may remain on the surface of the avenue in the exact locality it has always occupied, without the displacement of a single rail or switch, and the franchise of maintaining and operating it, and running licensed cars thereon, so far as appears from the evidence, may be beneficially used and enjoyed, hereafter as heretofore, without let or hindrance on the part of the defendant. The findings of the court at special term are to this effect.

The plaintiff has no easement or property right in the roadway of Sixth avenue incident or appurtenant to its ownership of lands abutting thereon, the beneficial use or enjoyment whereof will be destroyed, diminished, impaired or interfered with by the construction or operation of the defendant’s proposed railway.

It does not appear from the evidence that any one, from or through whom the plaintiff’s title to its adjacent lands is derived was ever vested with title to the land now constituting Sixth avenue. It does appear that the title of the former owners of that land was absolutely and forever divested; and that the title thereto, in fee simple, was acquired by the corporation of the city of New York, under and by virtue of proceedings had for that purpose pursuant to the act of 1813. A long array of judicial decisions is cited in support of the proposition that the city corporation is fully vested with an absolute title in fee simple to the lands comprised within the limits of streets and avenues opened and laid out pursuant ■ to that act, nor is that proposition controverted. The contention of the plaintiff is that notwithstanding the provisions of the act of 1813, under the operation of which the fee of street or avenue may be deemed to have been taken from the former owners thereof and vested in the corporation in trust, as provided thereby, the owners of property fronting on such street or avenue are entitled by virtue of their ownership, and of the abutment of their property upon such street or avenue, to have the same maintained as a highway ; and forever kept open for all the uses and purposes of a highway, unincumbered throughout its length and breadth,by any obstruction which shall prevent or impair the use of every inch of it, either by the public, or by abutting owners, for all the public uses and common purposes of a highway. And it is insisted, with great earnestness and force, that this right, to which, as an abutting owner upon Sixth avenue, the plaintiff claims to be entitled, is in its nature a proprietary interest in land, a property interest in the maintenance of the avenue as a highway by virtue whereof the plaintiff is entitled to compensation, in case of any infringement thereon, in the exercise of the right of eminent domain. The argument in support of this position proceeds mainly upon the assumption, not warranted by the evidence in this case, that the land comprised within the limits of the avenue was taken from persons who were also, at the time, owners of the land adjacent to and abutting on its exterior lines ; and that the compensation awarded to such persons for the land taken consisted chiefly in the benefits and advantages acquired by them as owners of the abutting lands, in having a broad highway opened in front of their remaining property, the use of which as such was forever secured by the trusts declared by the act.

Whatever benefits and advantages the owners of adjacent lands acquired, by virtue of opening the avenue, was paid for by assessments charged thereon, whether such owners were or were not proprietors of the lands within the limits of the avenue. And the trusts declared by the act were as much for the benefit of adjoining owners who had no interest in the land taken, but who paid such assessments in cash, as of those whose awards for damages, by reason of the condemnation of their lands within the lines' of the avenue, proved the equivalent of assessments for benefit imposed upon their lands adjacent to, but without, such lines. In each case adjacent owners contributed their respective shares of the expenses incurred in effecting the improvement. But they acquired by such contribution no exclusive right or interest in the street or avenues, and no easement in the nature of a right of way over the same, other than that which is held and enjoyed by the public at large. Abutting owners, as such, have no special and peculiar interest in the enforcement of the trusts declared by the act. Those .trusts were created and declared for the benefit of the public; and the people at large, acting through the legislature, are at liberty to determine in what manner they shall be carried into effect. The views expressed in the case of the Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 245, commend themselves to our approval, and if sound they are conclusive against the claim of the plaintiffs to compensation, for the deprivation of any supposed property right in the avenues, existing as appurtenant to their lands abutting thereon. The like conclusion has very recently been adopted by one of the learned judges of the New York common pleas, in the case of Story v. New York Elevated Railway Company (October, 1877), and the following cases, cited by him, seem to sustain fully the correctness of his decision (Lansing v. Smith, 4 Wend. 9; Benedict v. Gay, 3 Barb. 459; First Baptist Church v. The Utica & Schenectady R. R. Co., 6 Id. 313; Drake v. The Hudson R. R. R. Co., 7 Id. 508; Radcliff v. The Mayor of Brooklyn, 4 N. Y. 195; Gould v. Hudson R. R. R. Co., 6 Id. 522; People v. Kerr, 37 Barb. 357; 27 N. Y. 193; Coster v. The Mayor of Albany, 43 Id. 414; Kellinger v. Forty-second Street R. R. Co., 50 Id. 206).

But it is further urged as a fatal objection to the defendant’s claim of full right and authority to construct its road through Sixth avenue, that the route laid out for it by the commissioners appointed under the “rapid transit act,” is in direct violation of the implied prohibition contained in the fourth section of the act, with respect to crossing Broadway.

The court of appeals seems to have determined, in the cases of Kobbe and Anderson, above cited, that the right of the defendant to proceed under the act, with respect to any part or portion of its road, not directly affected by this implied prohibition, is clear and unquestionable; that if crossing Broadway is prohibited by the act, such crossing is excluded by the commissioners from the routes designated by them, inasmuch as they expressly exclude from such routes, any street or part thereof, the use of which for the purposes of an elevated railway is excluded by the act; and that such exclusion does not invalidate the authority conferred by the act with respect to the residue of the designated route. In so far as such residue coincides with the existing route of a railroad corporation, such corporation may build upon the route designated. The authority is at least coextensive with the coincidence. If therefore the plaintiffs were entitled to an injunction upon this ground, it would only extend to and operate upon such portions of the defendants’ route as are included within the intersecting lines of Broadway. But the elements of interest and irreparable injury which are essential to the invocation of equitable interposition by injunction are wanting to any claim of the plaintiff with respect to merely that part of the def end-ant’ s route which intersects Broadway, and we do not understand counsel as claiming anything by virtue of this particular objection, unless it be held to invalidate the authority of the defendant with respect to the whole of Sixth avenue.

We are of opinion that the judgment cannot be upheld either upon this or the other grounds urged in support of it. It must therefore be reversed and a new trial ordered with costs to appellant to abide the event.

Curtis and Freedman, JJ., concurred. 
      
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