
    THE SIXTH AVENUE RAILWAY COMPANY IN THE CITY OF NEW YORK, Plaintiff and Respondent, v. THE GILBERT ELEVATED RAILROAD COMPANY, Defendant and Appellant.
    
    I. APPEAL.
    1. Beview on, limit of.
    
    
      (a) Although when the bases of the judgment in the court below are erroneous; and the case had not then been there considered in all its aspects, the. appellate court is for these reasons justified in reversing the judgment and ordering a new trial; yet it may and sometimes will, at the request of respondent’s counsel, inquire whether the judgment can be sustained on propositions contended for by said counsel, other than those on which the judgment below proceeded.
    H. Franchise to use a public highway for a particular
    PURPOSE.
    1. Aci or charter granting, construction, of.
    
    
      (a) Authorizes the appropriation of so much, only as is requisite to carry into effect the design for which the power of appropriation was given, and ffiig privilege is exhausted by the appropriation in fact of so much of the roadway as the exigences of such design actually require.
    in. Constitutional law.
    
      Private property.
    
    Taking for public use, what is not.
    
      Impairing its value 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, cannot be said to be taking private property for public use in the exercise of the right of eminent domain.
    
      IS. g. The authorization of a railway parallel with, and competitive of, one already established.
    
      Authorizing a corporation to use for the public use and benefit such parts of a highway as have not been already appropriated by a corporation, under authority conferred on it, as actually required by it, the use authorized to be made by the former corporation being such as not to interfere materially with the use by the latter of the parts so appropriated by it, ' is not the taking of private property of the latter corporation.
    
    See Franchise, s-apra.
    
    
      Authorizing a corporation to use for the purpose of a railroad for the public use and benefit streets opened in the city of New York under the act of 1813, or parts thereof, does not take away any property or right of property of the abutting owners in the streets.
    
    See New York City, infra.
    
    IV. Nuisance, Public.
    1. The mere occupation by defendant’s road of certain streets and avenues in the manner authorized by law, is not a public nuisance.
    
    V. New York City.
    1. Land taken for streets under act of 1813.
    
      
      Decided January 14, 1878.
    (a) Abutting owners, rights of therein.
    1. Have no exclusive right or interest therein 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.
    1. Trusts created by act of 1813. Abutting owners, as such, have no special and peculiar interest in the enforcement thereof.
    VI. Easement of abutting owners m the city of new york.
    See Hew York Oity, supra.
    
    Vn. Rapid Transit Act.
    1. Fourth section, effect of prohibition in.
    
    
      (a) The implied prohibition against crossing Broadway does not affect the right of a company having authority under the act to proceed with respect to any part or portion of its road not directly affected by it.
    1. In the case at her, the only portions of defendant’s route affected by the prohibition, are those included within the intersecting lines of Broadway.
    VIH. Injunction.
    1. In the case at bar the court, applying the above principles, held there was no ground to sustain the suit.
    1. Taking of private property. Ho private property of the plaintiff having been attempted to be taken, or interfered with by the acts complained, it could not be sustained on the ground of restraining the taking private property for public use until due compensation had been made or provided for.
    3. Public nuisance. Defendant’s structure, not being a public nuisance, it could not be maintained on the ground of restraining a public nuisance.
    1. Special damage to plaintiff. The fact that defendant’s proposed railroad would cause special damage and injury to plaintiff, is in this aspect immaterial.
    
    3. Want of Authority. As the want of authority to cross •Broadway only affected those portions of defendant’s route . which are included within the intersecting lines of Broadway, and as in reference to these portions the elements of interest and irreparable injury were wanting, the suit could not be maintained on this ground.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.
    
      Appeal by defendant from a judgment rendered at special term, June 22, 1877, after a trial of issues of fact by the court without a jury.
    The judgment appealed from enjoins and restrains the defendant from building upon the Sixth avenue, (in the city of New York), from Amity street to Fifty-ninth street, an elevated railway, in accordance with plans prescribed or approved by commissioners appointed under the “ rapid transit act ” (Laws of 1875, ch. 606).
    Upon the trial it appeared, among other things, that the plaintiff is a railroad corporation, created and organized under the general act of 1850; and that, 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, that during the same period, it has 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.” 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 the Central Park, at Fifty-ninth Street, was opened by proceedings had under and pursuant to the act of April 9, 1813 (Laws of 1813, ch. 86), and the laws amendatory thereof.
    It further appeared, on the trial, that the defendant was incorporated by a special act, passed for that purpose, June 17, 1872, and was thereby authorized to construct an elevated railway through such streets and avenues, as should be designated by certain commismissioners. Such commissioners designated a route which extends through the Sixth avenue, from Amity street to Fifty-ninth street. On June 18, 1875 (Laws of 1875, ch. 606), the legislature passed an act, sifice generally known as the “ Rapid Transit Act,” which, upon certain terms and conditions therein specified, authorizes the construction of steam elevated railroads in cities, over, under, through or across the streets, avenues, places or lands therein (“ except Broadway and Fifth avenue below Fifty-ninth street, and Fourth avenue above Forty-second street, in the city of New York,” and certain other excepted places), upon consent of certain property owners and local authorities, or, in case such consent cannot be obtained, upon a decision by commissioners appointed by the supreme court, to the effect that such railroad ought to be constructed. Corporations formed under that act are thereby empowered to construct and operate railways upon the routes decided upon, as therein provided, and, in all cases, the use of streets, avenues, places and lands, and the right of way through the same for the purpose of such railways, is thereby declared to be a public use, consistent with the uses for which such streets, avenues, &c., are publicly held. The thirty-sixth section of the act relates especially to the construction of such railways as are thus authorized to be built, over routes coincident with horse railway tracks occupying the surface of the street, and confers certain powers and privileges incident or necessary to such construction; and, thereupon, also confers upon existing corporations, formed for the purpose provided by the act, and whose routes, according to their charters, are coincident with routes determined upon by commissioners pursuant to its provisions, like power to construct and operate such railways, as a corporation specially formed under the act, upon fulfillment of the requirements and conditions imposed pursuant thereto. Under the provisions of this-act, an elevated railway route, coincident with that of the defendant, as prescribed by its charter, was fixed and laid out; and thereupon the defendant, claiming authority so to do, under and by virtue of the legislation and proceedings above mentioned, undertook to construct an elevated railway through the Sixth' avenue, between Amity and Fifty-ninth streets, and proceeded therewith, until enjoined by the order,' and, finally by the judgment of this court.
    Upon the trial, at special term, it was claimed and insisted by the plaintiff, that the Rapid Transit Act of 1875 (and especially section 36 thereof), upon which the defendant relied as constituting its authority to build the road upon the plan prescribed by the commissioners appointed thereunder, was invalid, as in conflict with the State constitution. The judge before whom the trial was held, held that the thirty-sixth section 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, accordingly, that the plaintiff .was entitled to a perpetual injunction restraining defendant from building such railway.
    Judgment was entered accordingly, and defendant now appeals.
    The arguments of counsel for the respective parties were very elaborate ; the abbreviation of them here presented gives the substance of the points raised.
    
      Porter, Lowrey, Soren & Stone, attorneys, Grosvenor P. Lowrey, Charles Francis Stone, and John K. Porter, of counsel, for appellant, urged in substance :
    —I. As to the limits under which the court should review the special term judgment. 1. The duty of the appellate branch of the court would seem to be limited to a review of the bases upon which that judgment rests. Such a review having already been had—virtually—in the court of appeals, resulting in a decision that the bases of the special term judgments are erroneous, it would seem that that judgment should be at once reversed and a new trial ordered (Wisser v. O’Brien, 3 Jones & Spencer, 149, 152; Munro v. Potter, 34 Barb. 361; Mills v. Van Voorhees, 20 N. Y. 412, 423).
    II. As to the pretended franchise. This is claimed under resolutions of the common council of the city of New York, and an act of the legislature confirming all grants previously made to street railroads upon the terms and conditions of the original grants (Laws 1854, p. 323). Ho exclusive privilege to use the surface of! Sixth avenue, or the circumambient spaces of the air can be found in these resolutions or contracts ; and no such exclusive privilege or promise of a privilege is, as against the general public interest and in diminution of the general control of the State over public streets and highways, to be implied (Thompson v. N. Y. & H. R. R. Co., 3 Sandf. Ch. 625).
    III. As to the obligation of contracts generally. It may be said in general that “It is competent for the legislature, after granting a franchise to one person or corporation, which affects the rights of the public, to grant a similar franchise to another person or corporation, the use of which shall impair or even destroy the value of the first franchise, although the right so to do may not be reserved in the first grant, unless the right to do so is expressly prohibited by the first grant” (Charles River Bridge Co. v. Warren Bridge Co., 11 Peters, 420; Auburn, &c. Co. v. Douglas, 9 N. Y. 444; Rennselaer, &c. R. R. v. Davis, 43 Id. 137; Mohawk Bridge Co. v. Utica, &c. R. R., 6 Paige, 554; Ft. Plain Bridge v. Smith, 30 N. Y. 44).
    Upon this point, therefore, we contend :
    1. That there is no obligation of contract, binding on the city or State, to permit the Sixth Avenne Railroad Company to continue its railroad or run its cars, and much less to exclude others.
    
      2. That such an obligation, if existing, would not be impaired by legislation permitting others to carry on in the same street the business proposed by us, however injurious might be the competition. It is difficult to conceive what can be said in support of the idea, that the building of the defendant’s road brings upon the plaintiff the injury contemplated by section 10 of article 1 of the constitution of the United States.
    IV. As to the easement claimed by plaintiff'. 1st. The history of the law affecting streets in this city, informs us that, under the Dutch law, the fee of all roads and streets belonged to the sovereign State ; and that all such title in the State passed by conquest to the crown of Great Britain, and, after the American Revolution, to the State of New York, by which State it has, by the acts above-mentioned, been granted to the city (Dunham v. Williams, 37 N. Y. 251).
    The provincial legislature provided a scheme of legislation for the laying out of streets, by which it was arranged that compensation was to be given to the owners of land over which roads or streets were opened. In the case of roads in the country, only an easement was deemed to be taken, and the compensation paid was such damages as were appropriate for the use of the land assessed. But in the city of New York the municipal government, in laying out streets, were required to give reasonable satisfaction, not for the use of the land, but for all such land as should be taken and employed, and the satisfaction was to be for the complete respective interests and estates of the owners in such land (1 Smith & Liv. Laws, p. 8; Laws of 1691, ch. 18; Hoffman's Treatise on Estates and Rights of Corporations, vol. 1, p. 199). Various acts of the provincial and State legislatures were superseded by the acts of 1807 and 1813.
    The title to streets in this city laid out under those acts is completely in the city (Schuchart v. The Mayor, &c., 53 N. Y. 202; The People v. Kerr, 27 Id. 188; Kellinger v. Forty-second Street R. R. Co., 50 Id. 206; Matter of Ninth Avenue, 47 Id. 732; 2 Hill, 466; 3 Barb. 459; 6 Id. 313; 7 Id. 508; 6 N. Y. 522; 25 Id. 536; 43 Id. 414).
    There can be no private easement appurtenant to abutting lots in the public easement, for that would establish a private right to the continuance of a public right, and would constitute a double right to the same easement—one right in the public, and one in the private person ; nor can the possession of a right to participation in the general public easement entitle the holder to maintain a private action (Anderson v. Rochester, &c. R. R., 9 How. Pr. 553; Higby v. Camden & Amboy R. R., 19 N. J. Eq. 279; Currier v. West Side R. R., 6 Blatchf. 495; Wyman v. Mayor, 11 Wend. 494).
    The theory of the plaintiffs as to their easement in the street, whether for general passage or special access to their lots, is well treated in the Jersey City R. R. v. Hoboken R. R., 5 C. E. Green, 70.
    The power of the public authorities to affect the convenience of access to abutting lots is maintained in various cases (N. Y. & Harlem R. R. v. Forty-second Street R. R., 26 How. Pr. 70, 71; affi’d 32 Id. 500; 50 Barb. 285; Id. 309; Carver v. Paul, 24 Penn. 207; Godfrey v. City of Philadelphia, 637; Polack v. San Francisco Orphan Asylum, 38 Cal. 490; Fearing v. Irwin, 55 N. Y. 486).
    This is perhaps, however, the proper place in which to cite some authorities in refutation of the notion that there has arisen, from the proceedings by which lands in Sixth avenue have been appropriated and paid for, an implied covenant in favor of abutting owners. This notion seems to be, that by the payment of the assessment imposed upon them or their predecessors in the title for the benefit of the street opening, there has been created in such abutting owners a private interest in the street.
    In the exercise by the State of the right of eminent domain and of its taxing power, the citizens’ consent is ignored. Nothing depends upon that consent or the withholding of it, and no right arises from any declaration by the State, when it levies the tax or takes the property, of its then present intentions.
    The court of last resort has decided that a local assessment of this nature is a tax, and that “the payment of taxes is a duty, and creates no obligation to repay otherwise than in the proper application of the tax” (People v. Mayor of Brooklyn, 4 Comst. 424).
    2. The provision in the act of 1807, requiring the filing of a general map, which shall be final and conclusive, and enacting that after the streets around a block should be opened no public street should ever be made through the block, and similar provisions in other acts (Laws 1831, chap. 252) have never, been considered unalterable provisions creating a private right (Waddell v. Mayor, 8 Barb. 97; Wilson v. Mayor, 1 Den. 595).
    3. Even if there were any possibility of reverter, that interest is a nominal one merely, not entitling its holder to the intervention of equity (Wetmore v. Story, 22 Barb. 488). The value of a possibility of reverter is not assessible at more than one dollar, or at anything beyond a mere nominal sum (In re Thirty-ninth Street, 1 Hill, 194; In re Thirty-second Street, 19 Wend. 129).
    The value of a similar interest in a much larger part of a dedicated street, which would have been worth $7,000 if not burdened by the public use, was held to be correctly assessed at one dollar, in Livingston v. Mayor, &c., 8 Wend. 85.
    
    An injunction will not be granted where it would cause great injury tb the defendants, and might be of serious detriment to the public, without corresponding value to the complainants (Torrey v. C. & A. R. R., 18 N. J. Eq. 293; Cross v. Mayor, Id. 305, 313; Higby v. C. & A. R. R., 19 Id. 276).
    The erection proposed by us is auxiliary to the general public use; does not in any reasonable sense impair the convenience of any private person; and such obstructions, even if they do actually obstruct, are not to be enjoined where there is any doubt as to the law or the facts (Barnes v. South Side R. R., 2 Abb. If. 8. 415; Átt’y Gen’l». L. B. R. R., 9 O. E. Green, 49; Hodgkinson v. L. I. R. R., 4 Edw. 411; Thompson v. R. R., 3 Sandf. GJi. 625).
    Y. As to the trust supposed to exist under the act of 1813, § 107. The notion that the land in public streets in this city is, under the terms of the act of 1813, impressed with a trust which can be. availed of by plaintiffs to exclude the proposed use of Sixth avenue, is wholly without support in the language of the act, or in general public policy.
    The phrases “for ever” and “in trust,” in the act of 1813, do not constitute an irrepealable engagement between the State and the abutting lot owner. These words in the act of 1813 do not qualify the fee relinquished to the public, but the possession which is to be taken and held by the city after the fee has vested. They describe the municipal duty to the State, not the obligations of the State to the abutting owner. They do not imply an abdication of legislative power (People v. Roper, 35 N. Y. 636, 637; Embury v. Conner, 3 Comst. 511; 2 R. S. 6th ed. 526, § 20 ; Worcester City v. Worcester, 110 Mass. 353 ; Wellington v. Petitioners, 16 Pick. 88; Casey v. Harned, 5 Iowa, 14; Matter of Turfler, 44 Barb. 52; People v. Mayor of Brooklyn, 4 N. Y. 424; People v. Roper, 35 Id. 637; Brooklyn Park Commissioners v. Armstrong, 45 Id. 245; Smith v. City of Boston, 7 Cush. 254; Gould v. Hudson R. R. R., 6 N. Y. 522; Radcriff v. Mayor, 4 Id. 195; Wilson v. Mayor, 1 Den. 595; Lansing v. Smith, 8 Cow. 149; Garrison v. City of New York, 21 Wall. 203, 204).
    VI. The evidence as to obstruction and damages. Plaintiff’s claim has been stated thus :
    “Our affirmation is that the owners of houses and lots fronting on a street in a city are deemed to suffer peculiar injury when the street is closed anywhere, so as to obstruct their means of communication with the public.”
    Not one adjudged case can be found where such a doctrine is announced. Many authorities deny the doctrine in express terms (Tate v. Ohio R., 7 Ind. 483, 484; Williams v. Beardsley, 2 Car. [Ind.] 596).
    
    The learned judge at the trial excluded all evidence of diminution of value as immaterial. In this he followed, as he was bound, the settled doctrine of this court, in Dougherty v. Bunting (1 Sandf. 1), reaffirming Lansing v. Smith (8 Cow. 146), that where an unauthorized obstruction of a highway decreases the rental value, and the damage is common to a whole class, no one member of the class can sue.
    VII. Crossing Broadway. The technical objection that there was no coincidence between the routes determined on by the Rapid Transit Act and that previously granted to the appellant, is without even colorable formation, and is set at rest by the opinion of Church, Ch. J., in the court of appeals. It rests on an exception made in section 4 of the Rapid Transit Act, of certain streets in New York and Buffalo.
    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.
    The exception should not be held to apply to routes on the continuous line of streets crossed by Broadway, which so traverses the city diagonally, that it intersects most of the avenues.
    But, in any view, there is no prohibition against selecting a route across Broadway. The exception is merely to a grant of power, and if the commission had actually required the companies to cross Broadway with steam engines, it would at most have been an excess of their power, which would be void to the extent of the excess, and would not affect the validity of the “ routes ” up to Broadway on either side.
    But the objection is untenable in any aspect, for, as matter of fact, the commissioners excluded from the “routes” determined upon by them, all the excepted streets, including Broadway, and every part thereof.
    This exclusion, however, did not prejudice the prior and unrestricted right of the Gilbert Company to cross Broadway.
    The coincidence provided for in section 36 was not-of the entire “route or routes” selected by the commissioners, with the entire route of any one existing company; but the priority of right was reserved to any such company to the extent of such coincidence, and whether it was on one or more routes.
    
    
      Evarts, Southmayde & Choate, attorneys, Joseph H. Choate and George E. Comstock, of counsel, for respondent, urged, in substance :
    —I. The legislature has no power to authorize a company to enter upon and appropriate a highway for purposes other than those to which it had originally been dedicated in pursuance •of the highway acts, without first providing the just compensation therefor (Trustees of the Presbyterian Society in Waterloo v. Auburn & Rochester R. R. Co., 3 Hill, 567; Milhau v. Sharp, 27 N. Y. 611; Craig v. Rochester City & Brighton R. R. Co., 39 Id. 404; Mahon v. N. Y. Cent. R. R. Co., 24 Id. 658; Carpenter v. N. Y. Cent. 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).
    II. The dominion of the legislature over the streets of the city of New York, under the act of 1813, is not absolute and unlimited. Its power over them has the same limit as the power over the highway in other parts of the States has under the above-cited cases.
    The case of Heywood y. The Mayor (3 Seld. 214), shows the difference between land acquired for public use, over which the dominion of the legislature is absolute, and that acquired for street purposes, over which its dominion is necessarily limited to the perpetual maintenance of the street as a highway.
    III. The use proposed to be made of the Sixth avenue by defendant is more inconsistent with its uses as a highway than were the uses to which the highways were proposed to be put in the above-cited, cases.
    As the evidence shows, it is proposed to plant in the road-bed double rows of columns, which, at the bases, including the fenders, are to be thirty inches in width, two of them opposite each other in the street, occupying together one-twelfth of the whole roadway in a street sixty feet wide, and constituting a complete exclusion of the public, and of the abutting owners, from so much of the road-bed, upon which, in many parts of the route, and probably in front of plaintiff’s premises, are to be erected platforms and depot buildings and staircases, which are in practical effect indistinguishable from the erection of so many houses on the street in front of the plaintiff’s property.
    
      IV. Upon justly considering the great multitude of , cases in the courts of this and other States, decided upon the principle that for mere consequential damages the sufferer is not entitled to compensation, though occasioned by the exercise of the right of eminent domain, where no property is taken from him ; it will be found that there is nothing in them which militates at all against the rights which we now claim for the property owners.
    The very gist of our claim here is that a substantial right of property is taken away by the blocking up of the street.
    We venture to commend to the attention of the court the enlightened view of this subject taken by the English courts, in the most recent cases involving the construction of the Lands Clauses Consolidation Act (Vide Metropolitan Board of Works v. McCarthy, L. R. 7 App. Cas. 243; Becket v. West of London R. W. Co., 2 B. & S. 605).
    The supreme court of the United States has also strongly intimated its opinion in favor of the view now presented (Pumpelly v. Green Bay Company, 13 Wall. 166). Vide also the following cases in Ohio, which emphatically support the rights for which we here contend: Crawford v. Delaware, 8 Ohio St. 459; Cincinnati, &c. Ky. Co. v. Cumminsville, 14 Id. 523; Roberts v. Easton, 19 Id. 78.
    
    V. The authorities on this subject of the appropriation of corporate franchises, by virtue of the right of, eminent domain, are numerous and harmonious. They establish that the only true rule of policy as well as of law is that a grant for one public purpose must yield to another more urgent and important, and this can be effected without any infringement on the constitutional rights of the owners of the franchises; but, in such cases, suitable and adequate provision must be made by the legislature for the compensation of those whose franchise is injured or taken away. And it cannot be doubted that the section of the constitution of this State which we invoke makes ample provision.
    On the general subject of the condemnation of corporate franchises, we cite the following authorities: Cooley on Constitutional Limitations, 626; 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; Commonwealth v. Penn. Canal Co., 66 Id. 41; New Castle, &c. R. R. Co. v. Peru & Ind. R. R. Co., 3 Ind. 464; Charles River Bridge v. Warren Bridge, 11 Pet. 571.
    It is impossible not to see that the proposed construction of the Gilbert road, and its operation by steam power over that of the plaintiff, will seriously impair, if not wholly destroy, its value.
    The findings of the learned court below, on this head, are all that are needed to lead the judgment of the court to this conclusion.
    The twelfth finding shows that the tracks of the plaintiff are to be wholly covered and substantially surrounded by the structure, of the defendant, which is to be built within eighteen inches on either side of the plaintiff’s cars, as they run; that the superstructure is to be not more than fourteen feet in height from the surface of the ground, with cars to be propelled by locomotives, upon an open bridge, so as to be visible to the horses and passengers below ; and that the plan of defendant’s proposed road involves the running of trains about once in five minutes over the road in each direction at great speed, with stoppages'at every half mile. And it is expressly found, in the same finding, that the row of columns on each side of the plaintiff’s track will exclusively use and occupy spaces in the street that the plaintiff is entitled to nse for the purposes of its franchise; that the damage- that is suffered by the plaintiff is peculiar to it, and is otherwise than is suffered from the same cause by the public or others.
    Upon the ground, then, that we are entitled to compensation for our valuable corporate rights, franchises, and property, that are proposed to be taken away, as a condition precedent to their appropriation we insist with absolute confidence that the decree appealed from should be affirmed, and the defendants perpetually enjoined from proceeding with their proposed structure.
    VI. The route laid out by the commissioners through the Sixth avenue, in front of the plaintiff’s property, is illegal and void, and therefore no authority to construct that section of the road, at least, can be derived from their action, because the route there, as so laid out, is an express violation of the prohibitions of the fourth section of the act, by crossing Broadway in two places, as the court below finds, at Fifty-third street, and again at Thirty-third street. The fourth section of the act, which gives to the commissioners power to locate the route over, under, through or across the streets, avenues, places or land in such county, except Broadway and í’ifth avenue below Fifty-ninth street, and Fourth avenue, above Forty-second street, in the city of New York,” is an absolute prohibition, as strong as language could make it, against the legality of any route which crosses Broadway within the excepted region. The commissioners not only exceed their power, in so crossing Broadway, but the whole route so laid out in that part of its course, at least within the prohibition limits, is illegal, and leaves the case as if no such route had been designated.
    The court of appeals has not decided this proposition against us. All that they have decided is that the crossing of Broadway at Thirty-third street and Fifty-third street, between which limits it is clear that the legislature intended that no such route should be built, is not fatal to the rights of the company to an order to appraise the damages of an owner of property in South Fifth avenue, at a distance of more than two miles from the prohibited limits.
    VII. If the corporate property, rights and franchises of the plaintiffs are to be taken away, destroyed or substantially impaired, or, in the significant language of Judge Allest, ‘i the beneficial enjoyment of them disturbed or interfered with” by the construction and operation of the defendant’s proposed railway, by virtue of the Gilbert Act or the Rapid Transit Act, or of both combined, without just compensation being first paid or secured, then these acts are in plain violation of that provision of the constitution of the United States which says that no State shall pass any law impairing the obligation of contracts, and of the Fourteenth amendment of the constitution, which provides that the citizen shall not be deprived of his property without due process of law (Milhau v. Sharpe, ut supra).
    
    The nature and quality of the plaintiff’s rights and interests as a railroad company, thus happily defined for us by the highest authority in Milhau v. Sharpe, and made completely valid by the act of 1854, confirming them on the part of the State, come clearly within the protection of the provisions of the constitution which we invoke.
    All the property of the Sixth Avenue Railroad Company, including, as part of it, the right to be in the avenue for the purpose of operating its road, is the private property of the corporation, having all the sanctity of any other private property, and entitled, so far as it rests on grant from the State, or valid contract with city or State, to the constitutional guaranties referred to (West River Bridge Co. v. Dix, 6 How. U. S. 507; Boston and Lowell R. R. Co. v. S. & L. R. R. Co., 2 Gray, 35 ; 3 Kent’s Com. 458 ; Benson v. The Mayor, &c., 10 Barbour, 223 ; The Binghamton Bridge, 3 Wallace U. S. 51; Wilmington R. R. v. Reid, 13 Id. 264.
    
      
       The case at special term is reported in 41 N. Y. Superior Court, p. 489.
    
   By the Court.—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 section 36 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 Railway 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 const!-. tutional prohibition against the appropriation of pri-, vate 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.

1. 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 any wise 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, stairways, 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. Forty-second St., &c. R. R. Co., 50 Barb. 285, affi’d Id. 309).

The alleged appropriation or invasion of any part of the plaintiff’s road is expressly negatived by the finding that the running of defendant’s cars and engines upon the Sixth avenue, over plaintiff’s road, in case the defendant’s road were constructed, would not prevent the practical running of plaintiff’s 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 St. R. R., ut supra).

Moreover, plaintiff’s 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 Pet. 420 ; Auburn Co. v. Douglas, 9 N. Y. 444; Rensselaer R. R. v. Davis, 43 Id. 137; Ft. Plain Bridge Co. v. Smith, 30 Id. 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, off 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.

2. 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 any 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 aveiiue 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 o£ 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 bene-, fit 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 avenue, 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 y. Armstrong (45 N. Y. 245), commend themselves to our approval, and if sound they are conclusive against the claim of the plaintiff to compensation for the deprivation of any supposed property right in the avenue, 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 Railroad 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. Goit, 3 Barb. 459 ; First Baptist Church v. Utica & Schenectady R. R. Co., 6 Id. 313 ; Drake v. Hudson R. R. Co., 7 Id. 508; Radcliff v. Mayor of Brooklyn, 4 N. Y. 195 ; Gould v. Hudson River R. R. Co., 6 Id. 522; People v. Kerr, 37 Barb. 357; S. C., 27 N. Y. 193; Coster v. Mayor of Albany, 43 Id. 414 ; Kellinger v. Forty-Second St. 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 appears 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 co-extensive 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 defendant’s 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 defendant’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 defendants with respect to the whole o£_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, Ch. J., and Freedmah, J., concurred.  