
    THE FORTY-SECOND ST. AND GRAND ST. FERRY R. R. CO., Respondent, v. THIRTY-FOURTH ST. R. R. Co., Appellant.
    
      Statutes—construction of—Chapter 262, Laws 1884—meaning of “ any portion of a sPreeV'—Public nuisance—Street rail/road,—Jurisdiction of court—irmocable by individual.—Special damage, sufficiency of.
    
    Statutes must be construed in their plain, obvious sense, according to the signification among the people to whom they were directed.
    The phrase “portion of any street,” in Laws of 1884, chapter 262, § 14, includes not merely the space occupied by the tracks, but the space on each side of, and between the tracks (in fact, the whole width of the street), along the whole line of the .track.
    A street surface railroad constructed without legal authority, is a public nuisance.
    The fact that one is about to commit an act which would cause a public nuisance, gives the court jurisdiction to restrain it.
    In such case,—i. e., public nuisance,—it is sufficient to enable an individual to maintain an action for an injunction, that he has suffered, or will suffer therefrom, substantial damage that is special and peculiar to him, as distinguished from the damage which he has suffered or will suffer, as one of the community. The nature or extent of the damage is immaterial, as the injunction does not depend on them.
    Houston, etc., R. R. Co. v. Forty-second St. R. R. Co., and Allen v. Same (Daily Register, September 9, 1884), distinguished.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided June 1, 1885.
    Appeal by defendant from an order continuing an injunction.
    The motion for a continuance was heard on the complaint, verified by Charles Curtis, the president of the plaintiff, and an affidavit of said Curtis. The complaint was as follows :
    “ The plaintiff, by Frehng H. Smith, its attorney, complains and alleges :
    “1. That the plaintiff is a corporation duly incorporated under chapter 515 of the laws of 1860, of the state of New York.
    
      
      “ 2. That the plaintiff has heretofore lawfully constructed and operated a street surface railroad over the entire route provided for by its franchise ; that it has lawfully constructed and operated, and now owns, is maintaining and operating a double track street surface railroad from the foot of West Forty-second street, through and upon said Forty-second street to Tenth avenue; thence southerly down Tenth avenue through and upon the same to Thirty-fourth street ; thence easterly through and upon Thirty-fourth street to Sixth avenue ; thence south-easterly to the Grand street ferry on the East river.
    
      “ 3. That the distance from the foot of West Forty- , second street to Sixth avenue is about one and three-fourths miles. *
    
      “4. That the defendant is a private corporation organized under chapter 252 of the laws of 1884, of the state of New York to construct, operate and maintain a street surface railroad from the foot of West Forty-second street through and upon Forty-second street to Tenth avenue ; thence through and upon Tenth avenue to West Thirty-fourth-street ; thence through and upon said Thirty-fourth to the East river.
    
      “5. That that portion of Forty-second street lying between Tenth avenue and the Hudson river; that portion of Tenth avenue lying between Forty-second street and Thirty-fourth street; that portion of Thirty-fourth street between Tenth avenue and Sixth avenue, are already occupied _ by the street surface railroad, constructed, owned, and maintained by this plaintiff as aforesaid.
    “6. That, although by section 14, of chapter 252, of the laws of 1884, no street surface railroad company can construct, extend or operate its road or tracks in that portion of any street, avenue, road or highway in which a street surface railroad is or shall be lawfully constructed, except with the consent of the company owning and maintaining the same, the defendant wrongfully, unlawfully, in violation of the statute and of the rights of this plaintiff, proposes and threatens to construct and operate without the consent of the plaintiff, a street surface railroad from Sixth avenue to the foot of West Forty-second street along the route heretofore described, and in that portion of the said streets and avenues in which is situated the street surface railroad owned and maintained by this plaintiff.
    “U Upon information and belief, that the defendant has already applied to the department of public works for leave to take up the pavement, to the end that it may construct and operate said railroad in violation of the plaintiff’s rights as aforesaid.
    “ 8. That the construction of a railroad by defendant over such route will inflict irreparable damage upon the plaintiff.
    “9. That the plaintiff has no remedy against the violation of its rights aforesaid, nor any way in which it can restrain said violation except this court restrains the same by injunction.
    “ Wherefore, plaintiff prays, etc.”
    The affidavit was merely as to those allegations in the complaint not made on said Curtiss’ own knowledge. The motion was argued before Ingraham, J., who, on granting it, wrote as follows :
    “ The defendants are organized under chapter 252 of the laws of 1884, for the purpose of constructing and operating a street surface railroad in Forty-second street, Tenth avenue and Thirty-fourth street, in the city of New York.
    “The plaintiff for many years prior to the passage of the act of 1884, under legislative authority, operated a street surface railroad in a portion of Forty-second street, Tenth avenue and Thirty-fourth street, included in the route of the defendant’s company.
    “ Section 14, chapter 252 of the laws of 1884, provides that except for necessary crossing, no street surface railroad company shall construct, extend, or operate its road or track in that portion of any street, avenue, road or highway, in which a street surface railroad is or shall be lawfully constructed, except with the consent of the com- • pany owning or maintaining the same.
    “ The defendant claims that the prohibition contained in this section, applies only to that portion of the railway or street included within the track of the plaintiff’s road.
    “It is an elementary principle governing the interpretation of statutes, that the words of the statute must be construed in their plain obvious sense, according to the signification among the people to whom they were directed (Matter of O’Neil, 91 N. Y. 516), and taking the words of section 14 in that sense, I think the words ‘ portion of any street, avenue, road or highway in which the street railroad is or shall be lawfully constructed,’ mean more than the part of the roadway upon which the tracks of the existing railroad are laid. A street in the city of New York includes the roadway and the sidewalk. Thirty-fourth street includes within its Emits the whole strip of land one hundred feet wide from the East to the North river. A portion of such street is not a strip of the roadway or of the sidewalk, but is a part of the whole street. The meaning of the section is not very clear; but taking the words in their e plain, obvious sense,’ I am of the opinion that a corporation organized under said act, can have no right to construct a railroad in the streets in which the plaintiff’s road is constructed.
    “The power of the legislature to .restrict the powers of corporations created by them, cannot be seriously disputed, and the legislature in authorizing the organization of railroad corporations for the purpose of constructing and operating railroads, has power to provide that corporations organized under the provisions of that act, should not operate railroads in certain excepted streets and avenues.
    It has been settled by many adjudications in this state, that the construction of a street railroad in one of the streets of this city without legal authority, is a public nuisance (Davis v. Mayor, etc., 14 N. Y. 506 ; Milhau v. Sharp, 27 lb. 611).
    
    “It is well settled, however, that an action to restrain the continuance of a public nuisance cannot be maintained by an individual, without proof that such individual has suffered, or will suffer peculiar or special damage, not sustained by the community at large. The nature or extent of the damage he must sustain in order to be entitled to maintain the action, is not material. The nuisance must cause him a substantial damage, and it must be special to himself as distinguished from one of the community at large. The rule as to the proof of the nature and extent of the damages laid down in the case of McHenry v. Jewett (90 N. Y. 62), and cases like it, however, do not apply to the case at bar. In this case the threatened erection of a nuisance gives a court of equity jurisdiction to restrain the illegal act, and a court of equity at the suit of the people would have power to restrain by injunction the proposed erection. “The fact that defendant has committed, or is about to commit an act which would cause a public nuisance, gives the court jurisdiction to restrain the commission of the act (People v. Vanderbilt, 26 N. Y. 290). To entitle an individual, however, to maintain such an action, it is necessary to show that the act complained of will cause special damage to the individual (Doolittle v. Supervisors, &c., 18 N. Y. 155). It is sufficient, however, if it appear that the injury complained of will cause damage that is peculiar to the individual, as distinguished from the damage he has suffered as one of the community at large, and such a case should be distinguished from the cases in which the nature and extent of the injury give the court jurisdiction.
    “ It has been held in many cases in this state, that an action can be maintained by the owner of abutting property to restrain, by injunction, the commission of a nuisance in the street in front of his property. In Corning v. Lowerre (6 Johns. Ch. 439), the chancellor held that an abutting owner suffered a special grievance from an obstruction in the street, and that such obstruction worked a special injury (Clarke v. Blackman, 41 N. Y. 153 ; Milhau v. Sharp, supra).
    
    
      “The case of Houston St., &c. R. R. Co. v. Forty-second street R. R. Co., contained in the Daily Register, of September 9, 1884, only held that the plaintiff in that action could not ask the court to prevent the construction of its road in any part of Forty-second street, except the portion occupied by the plaintiff’s road. Allen v. Forty-second street R. R. Co., in the same paper, was an action by an abutting owner, and the court held that the defendant had legal authority to construct the road in front of plaintiff’s property. Neither of the cases therefore apply, and after a careful examination of the other cases cited by counsel for the defendant, I think the allegations in the complaint that the plaintiff will suffer special damage from the construction of a railroad by defendant, make out a prima facie case to justify the granting of an injunction during the pendency of the action.
    “ Motion must therefore be granted, with ten dollars costs to abide the event.”
    
      Wákeman & Ratting, attorneys, and Grosvenor P. Lowrey, of counsel for appellant, on the questions considered in the opinion, argued:
    The plaintiff’s cause of action, as pleaded, may be considered in several aspects :
    I. As charging the defendant with an attempted usurpation of power without special damage properly alleged.
    The legal offense implied in such action is the usurpation of powers not possessed ; and when contemplated by corporate bodies is restrainable in equity only by the attorney general, unless facts showing a special and actionable injury to the plaintiff are averred (Houston, West St., &c. R. R. Co. v. Forty-second St., &c. Ry. Co., Daily Reg. Sept. 9, 1884 ; Christopher & Tenth St. R. R. Co. v. Central Crosstown R. R. Co., 67 Barb. 315). Such injury does not, in contemplation of law, arise by the mere diversion of traffic, proximity of tracks or diminution of revenue (N. T. & Harlem R. R. Co. v. Forty-second Street R. R. Co., 50 Barb. 285 ; Smith v. Lockwood, 13 Ib. 209 ; Pudsey Gas Co. v. Bradford, &c., 5 Eng. R. [Moak’s ed.] 188 ; Stockport v. Manchester, 9 Jurist N. S. 266 ; McHenry v. Jewett, 90 N. Y. 58).
    II. As charging a threatened violation of plaintiff’s rights, and a consequent legal injury to it by disregarding a special franchise pertaining to it, to control the introduction of other surface railways, into a certain part of Thirty-fourth street.
    The use of a street by surface railroads is “merely a mode of exercising the right of public travel ” (Brooklyn City R. R. v. Coney Island R. R., 35 Barb. 368), and was in 1860 withdrawn from the control of the local legislature. Since then, by the constitution, the control of this subject has been confided to, (1) the legislature ; (2) the local authorities ; (3) the property owners, who must coincide to authorize such use. And. now (upon the plaintiff’s construction of this act), the legislature has added a fourth, viz., any existing surface railroad company, in possession of a constructed road, and thereby interested to refuse, or make terms for granting, its consent to an exercise of this right of public travel. Now, the plaintiff’s claim is that the public shall not have full means of passage through Thirty-fourth street, because it has a special franchise to forbid railroads in a certain portion of Thirty-fourth street (Mayor v. Broadway, &c. R. R., 97 N. Y. 281; Mills v. St. Clair Co., 8 How. 569 ; Dolsen v. New York, 17 Fed. Rep. 611; Turnpike Co. v. Illinois, 96 U. S. 68 ; Rice v. Railroad, 1 Black, 358 ; Ruggles v. Illinois, 108 U. S. 526 ; Martin v. Wardell, 16 Pet. 367). Upon the principles shown in these cases, it is clear that a consequence so unjust and unreasonable as the exclusion of a part of the public from full use of a public street, unless with the consent of a particularly interested carrier company will not be submitted to if the words in question can be made to bear any other reasonable construction. This brings us to the interpretation of chapter 252 of the laws of 1884. To assume that the legislature has intended to grant an exclusive privilege in any given section of the street to a private railroad company, is to assume that it has by public bill attempted the granting to a private corporation of an exclusive privilege, immunity or franchise, which is what the constitution forbids to be done by the only method reasonably to be apprehended, i. e.. by private or local bill. The prohibition by section 14 of the act, obviously applies to “the use by oné company of the tracks or ways of another. ” This is evident from, the exception which allows “ necessary crosssings,” and from the proviso which empowers the court to compel the previously constructing company to give “ the right of such use ” upon compensation for the use by one company of the tracks of another. The real object of the legislature was, doubtless, to give to existing companies, as agencies of public travel, a more exclusive control of their own tracks by abolishing the application to such property of the power of eminent domain; thus requiring new companies to meet the demands of the old one, or build outside its lines.
    III. As attempting to obtain the restraining power of the court, an advantage over the defendant preliminarly to the coming on of negotiations for a joint use of the tracks under the powers given in the act.
    The statute is invoked to make plaintiff’s consent a necessary condition precedent for us; the action is brought to declare its refusal to consent and to restrain us from proceeding without it; and the next practical step will, doubtless, be the naming of a price at which the consent may be had. For this favoritism they have paid nothing, ventured nothing, sacrificed nothing, nor rendered any public or meritorious service whatever. The public and the property owners were adequately protected by the constitutional provision making their consent a condition precedent. The new power of consenting (even when the public interest does not require it), and of objecting (even when local authorities, the general public and property owners unanimously consent), is manifestly not for the protection of either property owners or public. What other interest, then, can the legislature have had in view % Manifestly, only the private interest of existing companies. That interest is divisible into, (1) an interest not to be disturbed in exclusive possession of tracks and ways, (2) an interest not to be competed with in business. It was legitimate for the legislature to guard the first interest by hmiting the then existing liability of such property to be expropriated, or otherwise applied to competing public uses. It was not legitimate, and therefore was presumably not meant, to carve out from the general public right still other franchises, and engraft them for its sole use and benefit upon the existing privileges of a private company. But if this was meant, and was sought to be effected by imposing a condition impossible of performance, then the court must consider, (1) Whether the condition is not void, (a) As operating to diminish the right of the people as cestuis que trust under the act of 1813; (b) The power of “local authorities” (acting as public agents, in conjunction with property owners), effectively to control the degree of public use which any street shall serve (Const, art. 3; § 18); (c) As an appropriation and assignment to one company (not for jmblic use, but in restraint of such use), of the entire easement-bearing capacity of a street, without compensation to the mayor, &e., as owners of the legal estate therein ; (d) As in derogation of the private right of adjacent owners to have (subject to constitutional conditions only), the entire street kept forever fully available for all modes of public travel (Brooklyn City R. R. v. Coney Island R. R.; Mayor, &c., v. Broadway R. R., supra); (e) As conferring on a.private company a function political in its nature, and, therefore, beyond the power of the legislature to grant, and the capacity of the grantee to receive. (2) Or, if the condition must be held valid because it does not contravene any specific terms of the constitution, then the court must consider whether the condition can be pleaded, except by the people suing by their own attorney, to restrain an unlawful usurpation of power, and for the protection of purely general and public interests (Smith v. Lockwood ; Houston, &c. R. R. Co. v. Forty-second, &c. R. R., supra).
    
    
      Freling H. Smith, attorney, and of counsel for respondent, on the points considered in the opinion, argued :
    I. The claim that section 14 requires the consent of the constructed road, only when the proposed route lies directly over the space included within its tracks, or covered by its cars, is clearly untenable. If such were the case, said section would be meaningless, for without it the road could not be used without its consent. But the language of the section is too plain for doubt. It says : “Ho street surface railroad company shall construct, extend or operate its road or tracks in that» portion of any street, ” &c.
    II. The defendant’s proposed road being in violation of section 14 of chapter 252 of the laws of 1884 (under which the defendant is incorporated), is a public nuisance (Davis v. Mayor, etc., 14 N. Y. 506 ; Doolittle v. Supervisors of Broome Co., 18 Ib. 155 ; Harlow v. Hunston, 6 Cow. 189 ; Congrove v. Smith, 18 N. Y. 79). And any person sustaining a particular injury thereby may maintain an action (Moshier v. Utica & Schenectady R. R. Co., 8 Barb. 427; Doolittle v. Supervisors of Broome Co., supra), and have an injunction (Pennman v. N. Y. Balance Co., 13 How. Pr. 40 ; Davis v. Mayor, &c., 14 N. Y. 506 ; N. Y. & N. H. R. R. Co. v. Pixley, 19 Barb. 428 ; Doolittle v. Supervisors of Broome Co., supra; Corning v. Lowerre, 6 Johns. Ch. 439 ; First Baptist Church v. Sche. & Troy R. R. Co., 5 Barb. 79 ; Hart v. Mayor of Albany, 9 Wend. 571; 2 Redfield on Law of Railways, 379, 380 ; Spencer v. London & Birmingham R. R. Co., 8 Simons, 193 ; Sampson v. Smith, Ib. 272 ; Clark v. Blackmar, 47 N. Y. 150).
    III. There can be no serious question as to the special damage which will be inflicted on plaintiff, if defendant is not restrained from constructing the nuisance in question, or that the plaintiff can have no adequate remedy at law. The defendant seeks to parallel plaintiff’s road for nearly two miles, and in doing so will have to cross plaintiff’s tracks at Sixth avenue and Thirty-fourth street. The court must take judicial notice of the' facts that in the work of construction, the streets on each side of plaintiff’s tracks must be torn up, and passage to and from its cars obstructed ; that in constructing its road across plaintiff’s tracks, plaintiff’s traffic will be interfered with ; that in running its cars, defeiidant must necessarily, to a considerable extent, interfere with the ingress and egress of passengers to and from plaintiff’s cars In addition to the above, defendant, by operating its proposed road, would become a direct competitor with plaintiff for the carriage of passengers, and would divert a large part of its traffic, and thus diminish its revenues. All these damages must, in the nature of things, follow from the facts stated in the complaint. When the complaint states that the defendant is seeking to construct and operate a street railway in the same streets with plaintiff, under chapter 252 of the laws of 1884, it is equivalent to alleging all these items of damage in detail. Among other reasons, McHenry v. Jewett (90 N. Y. 58), has no application, because in case of public nuisance it is not necessary to show irreparable injury. It is sufficient to maintain the action for the plaintiff to show that he will sustain special injury by the threatened act.
    TV". The case relied on by the defendant (N. Y. & H. R. R. Co. v. Forty-second street, &c. R. R. Co., 50 Barb. 285, 309), to show that diversion of traffic, &c., is not sufficient to authorize this action, does not apply to this ' case. In that case, the defendant had the legal right to construct its road, and it was proceeding to construct it in accordance with the act of its creation. The case is an authority directly in point in plaintiff’s favor ; for the injunction would have been sustained, if the defendant had not been clothed with authority to construct its road. The above is an answer to the position that the attorney general only can bring the action. All the authorities cited by the defendant hold the contrary.
    V. Will then the plaintiff suffer special damage if the defendant is permitted to carry out its threats to erect its unlawful structure ? Of this there can be no question. Plaintiff is not one of a class who would suffer from loss of traffic, obstructions, &c., but it is the only person or corporation who would suffer in like manner. The damage would be special and peculiar to the plaintiff. It is well settled that an abutting property owner may maintain an action to prevent an unauthorized construction of a street surface railroad, because specially injured (Milhau v. Sharp, 15 Barb. 193 ; S. C., 17 Ib. 425 ; 27 N. Y. 611 ; Wetmore v. Strong, 22 Ib. 414 ; Doolittle v. Supervisors, &c., 18 N. Y. 264 ; Clark v. Blackmore, supra).
    
   Per Curiam.

The order appealed from is affirmed with costs, on the opinion of the court below.  