
    Rosalia Dailey, Appellant, v. Nassau County Railway Company and Others, Defendants; The Trustees of the Village of Sea Cliff, Respondents.
    
      Injunction — not granted to restrain a village from passing, a resolution which is a nullity upon its face — what prospective trespass is too speculative tó sustain an injunction.
    
    A resolution of the trustees of a village, authorizing the construction of a railroad upon a private street within the corporate limits,- is ultra vires and a nullity upon its face, and, therefore, does not create a cloud upon the title of an owner of land abutting upon the private street, entitling her to maintain an action against the village to enjoin the passage of such resolution."
    The complaint in such an action will not be sustained solely ■ because it asks relief against a .prospective trespass by the railroad corporation, as the danger that the railroad company will attempt to trespass upon the plaintiff’s property is too speculative and too remote.
    Appeal by the. plaintiff, Rosalia Dailey, from a judgment of the Supreme Court in favor of the defendants, the trustees of the village of Sea, Cliff, entered in the office of the clerk of the county of Nassau on the 20tli day of February,. 1900, upon the decision of the court, rendered after a trial .at the Nassau Special Term, sustaining the said defendants’ demurrer to the complaint and dismissing said complaint absolutely ; and also, from an order entered in said clerk’s office on the 20th day of February, 1900, sustaining said demurrer.
    
      A. H. Dailey, for the appellant.
    
      Alexander S. Bacon, for the respondents.
   Jenks, J. :

The Special Term sustained the demurrer of the trustees that the complaint does' not state a cause of action. The plaintiff would ■enjoin the trustees of the incorporated village of Sea Cliff, as the local authorities thereof, from granting consent to the defendant the Nassau County Railroad Company t-o construct a street surface road in certain streets in front of the plaintiff’s premises. Read with all intendments for the plaintiff, the complaint is that the trustees have proceeded upon an application and propose to give such consent as ' to streets which, though within the corporate limits of the village, are not public highways, in that they lie in a tract owned by a certain religious corporation and its grantees, and were laid out by said cor'poration and are now owned by it or by its said grantees. The plaintiff complains that as such a grantee she owns and is in possession of premises abutting upon the said streets, and that she also owns to the •center of such a street in front of her premises. Plaintiff complains that by chapter 361, Laws of 1872, said religious corporation was ■“ ‘ authorized and empowered to erect and maintain suitable parks, piers, wharfs and landing places along the shore of the lands which they have acquired or may acquire in the town of Oyster Bay, in Queens county,,and shall have exclusive control thereof, and of the property which they may own, and no railroad shall be opened or laid out over or through said property without the consent of said •corporation.’ ” Plaintiff does not allege waste or fraud or corruption, but that the consent would be illegal and void.

Assuming, as we must, that the facts alleged by the plaintiff are true, her grievance against the local authorities is that such a resolution of consent would affect private property. The giving •of such consent is an exercise of sovereign power, conferred by the -Constitution of the State and by the statutes which make consent from the local authorities a prerequisite, in that the trustees are the local officers in charge and in control of the public highway in the interest of the public therein. (Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Adamson v. Nassau Electric R. R. Co., 89 Hun, .261; approved in Kittinger v. Buffalo Traction Co., supra; Matter of Rochester Electric R. Co., 123 N. Y. 351, 357.) The consent then would not be based upon any claim of property rights of the village.

The right to construct and to operate a street railway is a franchise which has its source in the sovereign power. (Fanning v. Osborne, 102 N. Y. 447.) Under the Railroad Law such a corporation cannot construct its road through private property without •compensation, so there is no longer any room for the query (which hardly, however, indicated a doubt upon this proposition) in Fanning v. Osborne (supra). Until the corporation comply with “ the .statutory conditions of its right,” it has no apparent right, no apparent authority. (Matter of Rochester Electric R. Co., supra ; Brooklyn Heights R. R. Co. v. City of Brooklyn, 152 N. Y. 248.)

So far, then, as the trustees are concerned, this legislative act of such an inferior body is limited, by'its very letter of' authority, to-public highways, and, therefore, any attempt to legislate as to private property is %iltra vires the local authorities,'and the resolution would be a nullity upon its face. Follett, J., in Geneva & W. R. Co. v. N. Y. C. & H. R. R. R. Co. (24 App. Div. 335, 340), says:: “ The determination of the commissioners does not deprive any individual of a private right. The rights of individuals are otherwise protected, and the determination simply affects the rights of the public committed to the charge of the commissioners.” (See,, too, McCruden v. Rochester R. Co., 5 Misc. Rep. 59; affd., 151 N. Y. 623.) The mere resolution of consent is not evidence of any rights in the premises, nor is it made presumptive evidence of any authority over them.

So far as the defendant, the railroad corporation, is concerned,. such resolution in its hands would not avail unless the street was-shown to be a public highway when the resolution was enacted, and so it could be made effective only by proof of what plaintiff says is-not the fact. The plaintiff is in possession. Before any cloud could be cast by such resolution, complainant must * * * show inlimine'' that the resolution creates “ at least a prima facie liability against him, or incumbrance on his land, which he must overcome by extrinsic proof.” (Town of Springport v. Teutonia Savings Bank, 75 N. Y. 397.) And in this case,, the court say that.no ruléis more fully established than that equity will not interfere in the-case of an instrument invalid on its face, nor where its invalidity will appear upon the proofs of the party claiming under it, even where it affects the title to land.” (See, too, Dederer v. Voorhies,, 81 N. Y. 153; Guest v. City of Brooklyn, 69 id. 506; Scott v. Onderdonk, 14 id. 9, 14.)

The plaintiff lays stress upon the fact that the statute provides-that such consent shall be filed in the office of the county clerk. The filing is proof of nothing but of the fact of the passage of the= resolution. The statute is silent as to either purpose or effect, which,. I infer, is but to keep the evidence and to facilitate the proof. Such filing would not embarrass the owner or impair his power of alienation, which are the grounds of equitable interference. (Bissell v. Kellogg, 60 Barb. 617, citing authorities; affd., 65 N. Y. 432.) And the court does not hear a suit “ to remove a doubt which might-be created in the minds of persons dealing with the title, provided the means of forming a correct legal judgment are patent on the face of the instrument or proceeding, by which the existence or nonexistence of the right in question must be determined.” (Mellen v. Mellen, 139 N. Y. 210, 219. See, too, Sherman v. Adirondack R. Co., 92 Hun, 39; Leach v. Day, 27 Cal. 643.)

The learned counsel for the appellant overlooks an important distinction stated by Mr. High in his book on Injunctions (Vol. 2, § 1243).: .“A distinction, however, is properly drawn between the case of restraining an illegal act attempted under the authority and sanction of a municipal body, and restraining the corporation itself from granting such authority. And while courts of equity will not enjoin municipal bodies from the passage of ordinances- or resolutions, yet after the passage of such ordinances or resolutions the courts may and will, on a proper case being shown, prevent their enforcement, and for this purpose may enjoin proceedings thereunder which would otherwise result in irreparable injury.” The learned counsel for the plaintiff cites Clark v. Davenport (95 N. Y. 477) and King v. Townshend (141 id. 358) as authorities that the creation of a cloud upon title may be restrained by injunction. The first case is an authority for the general principle (p. 483), though it denied the relief". The second case deals with the giving of a lease upon a tax sale, which lease was armed ” with presumptions. My conclusion does not deny this principle, but the application of it.

The plaintiff has ample and speedy remedy if the corporation attempt to trespass upon her property. (Clark v. Middletown-Goshen Traction Co., 10 App. Div. 354; McCruden v. Rochester R. Co., supra ; Syracuse Salt Co. v. R., W. & O. R. R. Co., 67 Hun, 153.) But so far as she seeks-it against the railroad corporation in this suit, as incidental and supplementary to the main relief asked, suffice it to say-that the danger appears too speculative and too remote to uphold this complaint solely for such a purpose. (Sanders v. Village of Yonkers, 63 N. Y. 489; Reynolds v. Everett, 144 id. 189,194.)

The judgment should be áffinned.

All concurred.

Judgment affirmed, with costs.  