
    Oliver W. Ingersoll, App’lt, v. Nassau Electric Railway Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Railroads—-Street—Consent op property owners.
    A railroad company can run its cars over the road of another company, already constructed and in operation in the street, without first obtaining the constitutional consent of the property owners.
    Appeal from a judgment in favor of defendant.
    
      Wood & Hill, for app’lt; John C. Church, for resp’t.
   Dykman, J.

The plaintiff in this action is the owner of real property on the south side of Bergen street, between Rogers avenue and Nostrand avenue. Tbe suit is instituted for the procurement of an injunction to restrain the defendant from constructing, operating, or maintaining any surface railroad or tracks through Bergen street, between the avenues above mentioned. Bergen street, between those two avenues, is included in the route of the defendant’s railroad; but there is in that street already a double-track railroad, owned and operated by the Atlantic Avenue Railroad Company, and the defendant has obtained the permission of that company to run the cars of the defendant over the tracks of the Atlantic Company on that block. At Rogers avenue and Nostrand ave'nue, curved tracks are to be laid to connect the defendant’s track with the track of the Atlantic Company, but the complaint contains no claim of injury from the construction of such connecting track. The action is based upon the constitution and the statute, and the constitutional provision invoked is this:

“ No law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one half in value of the property bounded on, and the consent also of the local authorities having control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained.” Article 3, § 18.

Section 91 of the act of 1893 (chapter 434) contains substantially the same interdiction.

The complaint alleges that the defendant, in pursuance of the consent of the common council of the city of Brooklyn, is constructing, and preparing to maintain and operate, its tracks or road on Bergen street, between Rogers and Nostrand avenues, and that such construction and operation would irretrievably injure the value of the plaintiff’s property, and infringe his rights. The facts, however, fail to sustain those charges of the complaint, because, as we have seen, the defendant is not constructing, and does not propose or intend to construct or operate, its tracks of road on Bergen street at all. The tracks of the Atlantic avenue Company are laid there, and we must assume that the consent of the property owners and of the local municipal authorities has been obtained for the construction and operation of that road through Bergen street. All the constitutional and statutory requirements are therefore satisfied. The Atlantic Company may operate its road in any legal manner consonant with the purposes for which it was organized. It may hire out its line, or it can permit other railroad companies to run their cars over its tracks, according to statutory provision upon that subject. The legal use of the franchises of the Atlantic Company is untrammeled. The defendant does not intend to appropriate Bergen street to any new use. The interests of the locality have been consulted in relation to the construction and operation of the railroad already there, and the street is to be no further obstructed. The defendant does not intend to lay down or operate its railroad tracks in that street. It is quite conceivable that the right to use the tracks of the Atlantic Company, and operate its road, may be transferred to another company by a voluntary or forced sale; but it will not be contended that any new consents from property owners or local authorities would be necessary, in such a case, to the continued operation of the railroad by a new transferee of the property and franchises of the old company. The right to exercise the franchises of the Atlantic Company became vested upon the procurement of the necessary consents. In re Rochester Electric Ry. Co., 123 N. Y. 351; 33 St. Rep. 695. The constitutional inhibition under consideration is leveled against the construction and operation of a new railroad without the proper consents, but there is neither a constitutional nor a statutory prohibition against the use of one Tailroad, by the cars of another without such assents. Moreover, the question seems to be set at rest by the decisión of the court of appeals in the case of People v. Brooklyn F. & C. R. Co., 89 N. Y. 75. It was there decided that one railroad company could run its cars over the road of another company without obtaining the constitutional consents. In any view, however, the defendant intends to do nothing of which the plaintiff can complain in this suit. To sustain his action, he must show that the defendant is doing, or intends to do, something in Bergen street that will be of especial and peculiar injury to him or his property. This is not a taxpayer’s suit to prevent waste or injury or a public wrong. It is a private action to restrain the defendant from doing an act in a public street in a great city which is under the control of the municipal authorities for the benefit of the whole people, and in which the plaintiff has no peculiar interest. He does not stand for the community. He must show an infringement of some private right, or, in other words, he must show that the defendant is doing, or is about to do, some act in Bergen street from which he will sustain some injury to him or his property. Injuries sustained by the plaintiff in common with the whole people cannot be redressed in a private action by him. It already appears that the defendant has done nothing in Bergen street, and only intends to run its cars in that street over the railroad tracks now laid down and in use. No change is contemplated, no additional space is to be occupied and it is impossible to see how the plaintiff can sustain any peculiar injury from the use of the tracks which the defendant proposes to make.

The judgment should be affirmed, with costs.

Brown, P. J., concurs.

Pratt, J.

(dissenting.)—I have been unable to satisfy my mind that the act of 1890 and the amendments of 1893 and 1894 do not prohibit any street-railway company organized under the several laws of 1890 operating any railway in any street except on condition that it shall first obtain the requisite consent of property owners on the street. The defendant was organized under the general railroad law of 1890. Its route runs through Bergen street, in front of plaintiff's premises. It has obtained the consent of the local authorities to construct and operate its road, but has obtained no consent of any property owners on Bergen street. The consent of the local authorities was conditioned upon its compliance with all the provisions of the railroad law, and, acts amendatory thereof. The railroad law requires consent of one-half in value of the property owners on the several streets on its route. The contention of the defendant is that such consents were unnecessary, under that law, because it does not propose to construct any railway on Bergen street, but merely to use the tracks of the Atlantic Avenue Railway Company already existing in that street, under a contract with the latter. As I construe the statute, the prohibition extends disjunctively to the building, extension, or operation of street railways. It forbids the operation of a street railway quite as much as its construction or extension. Nor does it matter that the defendant does not propose to construct in Bergen street, or that the Altan tic Avenue Railway was constructed before these special statutory provisions, or even the constitutional prohibition. The acts under which the Atlantic Avenue Company was organized rendered it subject to future legislation. The constitutional prohibition was aimed at the future. We find such future legislation in the acts of 1890,1893, and 1894, and in the railroad law, which, in effect, prohibits any street-railway company organized since those acts took effect from operating a railway without such consent, unless, perhaps, as the successor of the owner of the pre-existing franchise of the pre-existing road. True, the railroad law authorizes a contract by one company for the use of a part of its tracks by another, but that is subject to the other provisions of the law. Such a contract may be lawful, but, the moment the hirer of the track attempts to use it, then quoad hoc, it begins the operation of that railroad. _ For all practical purposes, the portion thus used becomes the road of the hirer, and the act of running cars over it is the “operation of'the road.” Let us test this question by an easy illustration of the design of these prohibitions both in the constitution and in the statute. Take the- case of a railway constructed and operated by consent of local authorities and property owners. What did the property owner consent to? Was it that his street should be thrown open to any use of the tracks to which the consentee might agree ? I think not. He consented to the construction and operation of the railroad proposed by the company which applied for and obtained the consent,—a railroad having definite termini a recorded route and plans ; something which the judgment of the property owner could comprehend, and upon which he might act intelligently ; something from which he could form some estimate of the probable advantage of the scheme to his property, and the probable burden or servitude which it would impose. It is idle to say that any one consenting to the construction and operation of, say, the Bergen Street Railroad, with its specific route, plan, termini, etc,, could have contemplated that the passenger traffic of a new cross-town line, from some grand central depot connection to the seashore, should be poured over that track in front of the consentor’s door. He might well have consented to the one, thinking that it would be an advantage to his property, when the other, either alone or in conjunction with the former, would be a positive injury. Instead of the ordinary street-railway traffic, involving one car in five or ten minutes, there might be as many cars as congregate about the City Hall Square; for, if this sort of thing may be done for one railway company, it may be done for a dozen. Thus a totally uncontemplated burden or servitude would be imposed on the consentor’s property. His consent would be wholly misconstrued. This, to my mind, illustrates the design of these constitutional and statutory provisions,—namely, to give the property owner some sure guaranty against the encroachment of street-railway corporations upon private property. Such a ruling in the case which I present would be simply to whittle away into nothing that which was intended to be a safe and reliable guaranty,— namely, the voice of a majority in value of the property in any street. As I look upon this case, the defendant and this Atlantic Avenue Company, at the commencement of his suit, stood in precisely the legal relation to property owners which I put by the foiegoing illustration. The defendant proposes to operate a part of its line of railroad, and which, quoad fyoc, is to become its railroad and railrord track, in direct violation of the spirit, if not of the very letter, of these statutory and constitutional prohibitions, and, without complying even with the conditions on which the consent of the local authorities was given. These views lead to a reversal of the present judgment, and to a new trial, with costs to abide the event of the action.  