
    John Trelford, Appellant, v. The Coney Island and Brooklyn Railroad Company, Respondent. William Lakeland, Appellant and Respondent, v. Same, Respondent and Appellant.
    
      Bail/road — effect of a voluntany temporary change in a pond of its route — rights of a railroad not lost by an moan'd, in proceedings to open a street, to its predecessor in title — when the People only can sue — condemnation of one public use for another.
    
    Upon the hearing of motions for the continuance, pendente lite, of preliminary-injunctions obtained m two separate actions brought by John Trelford and William Lakeland, respectively, against the Coney Island and Brooklyn Railroad Company to restrain it from constructing and operating an electric trolley railroad upon Neptune avenue, which is situated in that part of Brooklyn which was formerly in the town of Gravesend, it appeared that the defendant was incorporated in 1860, and that by chapter 324 of the Laws of 1861 it was authorized, upon its compliance with certain conditions, to operate a railroad from Pulton ferry in Brooklyn to a point on Coney Island; that it constructed a single-track horse railroad which, near its southern terminus, was built upon the “ old Coney Island Flank Road,” it having first acquired the rights of the plank road company by condemnation proceedings.
    In 1890 the authorities of Gravesend took proceedings to open Neptune avenue, whose lines, west of what was known as Ocean Parkway, corresponded with ■ the lines of the old plank road, while east of the Ocean Parkway the old plank road lay wholly within the lines of Neptune avenue.
    In 1890, in view of the opening of Neptune avenue, and the fact that the grading tLereof and the construction of a sewer therein would necessarily cause the operation of its railroad to be suspended during chat year, the defendant, at the suggestion of the town authorities, took up its rails from the plank road and constructed a branch over private property and over other streets to its terminus.
    The defendant now proposes to construct and operate its road as an electric trolley road over its old route through Neptune avenue.
    The court denied Trelford's motion and dissolved the preliminary injunction obtained by him, but granted Lakeland’s motion only so far, however, as to restrain the construction of a double-track road, the order entered in his case permitting the construction of a single-track road.
    
      Held, that as it had not been shown that either of the plaintiffs, Trelford or Lake-land, had any property interests in Neptune avenue, neither of them was in a position to urge that the defendant had voluntarily abandoned its route over' the plank road, and, therefore, had no right to reconstruct and operate its railroad over that part of such road as was now within the limits of Neptune avenue;
    That the plaintiffs’interests, being only those which were common to all the people, could only be protected by an action brought by the Attorney-General in the name of tlie people;
    That the fact that in the proceedings to open Neptune avenue an award of twenty dollars was made to the Coney Island Plank Road Company, to whose rights the defendant had succeeded, could not extinguish or affect the rights of the defendant, as the defendant was not shown to have been in any way connected with the award;
    That as there was nothing inconsistent in the use of Neptune avenue by a railroad company, after the avenue had been opened, the court must assume that the defendant’s rights in the plank road were preserved and now existed in the avenue so far as such road was incorporated into it;
    That the defendant acquired its rights from the Legislature, and that these rights could not be taken away in the interest of another and different public use except by express direction of the Legislature or by such a dmection clearly to be implied;
    That the court erred in limiting the defendant to a single-track road.
    Appeal by John Trelford, the plaintiff in the first above-entitled action, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23th day of February, 1896, denying his motion to continue, until the trial of the action, a preliminary injunction theretofore granted, restraining the construction by the defend-ant of an electric trolley road on Neptune avenue in the city of Brooklyn.
    Also, an appeal by William Lakeland, the plaintiff in the second above-entitled action, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of February. 1896, as permits the defendant to construct and operate a single-track electric trolley road upon that portion of Neptune avenue in the city of Brooklyn in which it formerly maintained a single-track railroad.
    Also, an appeal by the defendant, The Coney Island and Brooklyn Railroad Company, from that portion of the last-mentioned order which restricts the defendant to the construction and operar tion of a single-track electric trolley road upon that portion of Neptune avenue in which it formerly maintained a single-trank railroad.
    
      James C. Ch.urch, for the plaintiffs.
    
      William N. Dykman, for the defendant.
   Brown, P. J.:

The plaintiffs in each of the above-entitled actions are owners of land fronting upon Neptune avenue, a street in that part of the city of Brooklyn which was formerly the town of Gravesend, and seek a judgment restraining the defendant from constructing and operating a railroad upon said avenue. Motions to continue preliminary-injunctions theretofore granted pendente lite were made at the Special Term. In Trelford’s case the motion was denied absolutely. In Lakeland’s case it was granted so far as to restrain the construction of a double track railroad, but the order permits the construction and operation of a single-track road. The plaintiffs have appealed from both orders, and the defendant has appealed from the order in Lakeland’s case.

The defendant was incorporated in 1860 under the General Railroad Law of the State (Laws of 1850, chap. 140), and by chapter 824 of the Laws of 1861 was authorized, upon obtaining the consent of the common council of the city of Brooklyn, or the consent of a majority of the owners of property fronting upon any street or avenue in said city, through or over which it proposed to lay its road, to construct and operate a railroad from Fulton ferry, in said city, to a point in and upon Coney Island, through and over the- streets, roads and avenues designated and shown on maps of said railroad made by Jarvis Whitman, city surveyor. Pursuant to the authority conferred upon it the defendant constructed a single-track horse railroad, and near its southern terminus the road was built upon what is called the Old Coney Island Plank Road.”

In 1890 proceedings were taken by the local authorities of Gravesend to open and grade Neptune avenue, a street laid out on the map of the town survey commission. This street ran east and west across Coney Island avenue and Ocean Parkway. As I understand the affidavits, west of Ocean Parkway its lines correspond with the lines of the old plank road, but east of the Ocean Parkway it is wider than the plank road, the old road lying wholly within the lines of the avenue.

In 1890 the defendant was engaged in changing its motive power from horses to the electric trolley from Prospect Park to its Coney Island terminus, and being informed that Neptune avenue was about to be opened and graded and a sewer constructed therein, and that the operation of the railroad would necessarily be suspended thereon during that year, at the suggestion of the supervisor and highway commissioners of the town, took up its rails from the plank road and constructed a branch or extension over private property and Sea Breeze avenue and West Fifth street to its present terminus, which extension it has ever since operated. The defendant now proposes to construct and operate its road upon its old route through Neptune avenue.

The. first point urged by the plaintiffs is that the defendant voluntarily abandoned its route over the old plank road and has no right after such abandonment to reconstruct and operate its railroad upon the same. Assuming that this claim is sound, wo are of the opinion that it is not available to the plaintiff's in these actions. It does not appear that either of them have any property interests involved in the question. Lakeland’s deed is not in evidence, and the allegation in his complaint that he owns the land to the center of Neptune avenue is denied by the answer, and without some evidence to sustain the allegation a temporary injunction -was properly refused. Trelford’s deed is referred to in Hoffman’s affidavit, and it appears from the description therein given in connection with the map and the commissioners’ report in the proceedings' to open Neptune avenue that he lias no title to any land within the line of the street. No property or easements of the plaintiffs, therefore, are taken by the defendant, and it is not liable to the plaintiffs for any consequential injury they may sustain by the use of the street for railroad purposes. (Fobes v. R., W. & O. R. R. Co., 121 N. Y. 505.)

' The plaintiffs, therefore, have no interest in the fact of abandonment. except such as is common to all the people. The matter affects public interests only, and the fact can be made the basis of an action against the corporation only when brought by the Attorney-General in the name of the people. (People v. Albany & Vermont R. R. Co., 24 N. Y. 261 ; Matter of N. Y. Elevated R. R. Co., 70 id. 327.)

The plaintiffs’ second point is that the defendant has no right to relay its track upon Neptune avenue without first obtaining the consent of the local authorities having control thereof, and of the owners of one-half of the property abutting thereon. This proposition rests upon the assumption that such rights as the defendant liad in the plank road were extinguished by the proceedings taken to open Neptune avenue; that its franchise therein having been by such proceedings destroyed, it cannot now construct and operate a railr'oad in the avenue without proceeding de novo in compliance witli the Constitution' and the General Railroad Law of 1890 (Chap. 565). The plaintiffs’ argument on this branch of the case goes far beyond the facts printed in the record. There is nothing before us to show that the defendant’s franchise in the plank road was taken from it by the proceedings, to open the avenue. All the appeal papers show is that an award of twenty dollars was made to the Coney Island Plank Road Company. The plaintiffs assume that, because'the defendant when it originally constructed its road acquired by condemnation proceedings the rights of the plank road company in the land upon which the plank road was built, the award of twenty dollars was made to the defendant and extinguished its franchise therein. There is not a word in the appeal papers to support this assumption. If we are to be permitted to speculate on the subject, the probability is that it was made to the plank road company to extinguish any possible rights it might have in the old road. It is sufficient to say, however, that the defendant, in the papers before us, does not appear to be in any way connected with this award. Moreover, we are not informed as to the early history of the plank road. That road may have been constructed upon a public highway or upon land purchased or acquired by the company for the purposes of its road. (Chap. 210, Laws 1847, §§ 8, 11, 26.) By chapter 324 of the Laws of 1861 the defendant's road was specifically located upon the plank road. (In re C. I. & B. R. R. Co., 12 Hun, 451.) This act was a valid exercise of legislative power, and the rights thus created cannot be held to have been taken from the defendant for another and different public use, except by the express or clearly-to-be-implied direction of the Legislature. (Matter of Buffalo, 68 N. Y. 16Y.)

If the plank road was originally constructed upon a public highway we are of the opinion that the highway still continued after the defendant had acquired the rights of the plank road company •and had constructed its railroad. The two uses would not be inconsistent with each other, and the occupation of the railroad was not exclusive. If it was constructed upon private property acquired for the purposes of the plank road, the defendant could not be ■deprived of the rights it had acquired therein except by clear legislative authority.

The plaintiffs have not embodied in their moving papers, nor referred in their brief, to the law under which Neptune avenue was laid out and opened, and as there would be nothing extraordinary ■or unusual in the use of the avenue by a railroad after it was opened ■and graded, we are compelled, in the absence of any information •on the subject, to assume that the defendant’s rights in the plank road were preserved, and now exist in the avenue, so far as the }ilank road was incorporated into the new street. The fact that the .avenue is graded several feet higher than the plank road is not a fact of any importance.

We are unable to perceive upon what ground the order in Lake-land’s case limited the rights of the defendant to a single track. As already stated, it does not appear that Lakeland has any title in the street, and until he establishes Ins allegation of title, he is not •entitled to an injunction.

The order in Trelford’s case must be affirmed.

The order in Lakeland’s case, so far as appealed from by the plaintiff, must be affirmed, and so far as appealed from by the defendant, must be reversed, with ten dollars costs and disbursements to tbe defendant.

All concurred.

Order in Trelford’s ease affirmed, with ten dollars costs and disbursements ; order in Lakeland’s case affirmed, so far as appealed from by plaintiff; so far as appealed from by defendant, reversed, with ten dollars costs and disbursements.  