
    The Central Crosstown Railroad Co., Plaintiff, v. The Metropolitan Street Railway Co., Defendant.
    (Supreme Court, New York Special Term,
    August, 1896.)
    •Railroads — Injunction against construction — Nuisance.
    Defendant, which operates a street railroad on ■ West street in the city of New York, Claims the right to lay a spur therefrom to the Christopher street ferry, which will ■ run for 250 feet parallel to plaintiff’s track, which has been in operation for many years. Held,- that such action by defendant would constitute a public nuisance, causing special and peculiar injury to plaintiff; that It would be in violation of section 102 of the Railroad Law, aiid that • plaintiff was entitled to an injunction to restrain it.
    Action for injunction.
    George Hoadly and Merrill & Rogers, for plaintiff.
    Elihu Root and S. B. Clarke for defendant.'
   Pryor, J.

The adjudication in Forty-second, etc., R. R. Co. v. Thirty-fourth, etc., R. R. Co., 52 N. Y. Super. (20 Jones & S.) 252, sustains the right of the plaintiff to-maintain this action, on the ground that the diversion- of traffic- by a competing line is a special and, peculiar injury from the public nuisance of an . unauthorized railroad in a highway. Fanning v. Osborne, 102 N. Y. 441; Hussner v. R. R. Co., 114 id. 433; Flynn v. Taylor, 127 id. 596. Indeed, the exclusive occupancy of the highway between West street and the Hoboken ferry house, accorded to plaintiff by section 102, article IY, of the Railroad Law (White on Corporations, 315), involves, by necessary implication, a remedy to vindicate the right. A public nuisance is an infringement of a public right, but here is an invasion as well of plaintiff’s private right; and ubi jus ibi remedium. Like v. McKinstry, 41 Barb. 186, 188.

The conclusion, however, proceeds on the assumption that the. plaintiff’s railroad is rightfully upon the space between West street. and the ferry house. Of the validity of the proposition there can be no question. The franchise of plaintiff’s predecessor in title authorized the construction of a surface railroad “ to the Christopher Street Ferry.” In Christopher Street, etc., R. R. Co. v. Central, etc., R. R. Co., Mr. Justice Van Brunt held expressly that this plaintiff “ has a right to continue its line on tracks * * * upon and across the said West street, and the space between the old and the new bulkhead lines at the foot of Christopher, street to its terminus at the ferry house.” And in People v. Central, etc., R. R. Co., the same learned judge again declared that the legislature did in terms and in fact authorize the building and operating of plaintiff’s railroad “to the bulkhead line at the North river at the foot of Christopher street, wherever the said bulkhead line might be.” Indeed, plaintiff’s railroad, being a line of transportation from the East to the North river, possesses, from the very object and use .of the enterprise, a right to. convey passengers to the ferry house at each terminus.

Being, therefore, lawfully in occupancy of the space in question, the controversy is whether the defendant be privileged to encroach with its railroad upon the same locality.

By the'section of the Railroad Law above cited, it is provided that “ no' street surface railroad corporation shall 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 * * * without first obtaining the consent of the corporation owning and maintaining the same.” Forty-second, etc., R. R. Co. v. Thirty-fourth, etc., R. R. Co., 52 N. Y. Super Ct. 252; Matter of Thirty-fourth Street R. R. Co., 102 N. Y. 343. That the space in question is a street and public highway is conclusively settled by authority. Taylor v. Atlantic, etc., Las. Co., 37 N. Y. 275, 283; Oceanic S. N. Co. v. Comp. Trans. Esp., 134 id. 461, 465. Hence, without plaintiff’s consent, the defendant may not construct or maintain its railroad upon the debatable ground. Forty-second, etc., R. R. Co. v. Thirty-fourth, etc., R. R. Co., supra; Matter of Thirty-fourth, etc., R. R. Co., supra.

Other provisions of the Railroad Law (art. IV, §§ 90-110) likewise forbid the. proposed extension of defendant’s road.

Authority for- the projected extension defendant professes to find in the franchise of its predecessor, the Central Park, East & Forth River Company. But that franchise was to maintain and operate a railroad in certain streets, including West, “ with the privilege of laying all necessary sidings, turnouts, connections and., switches for the proper working and accommodation of the railroad in the specified streets, and to run over any tracks which, might lie along the specified streets.” Supposing the restrictions of the Railroad Law inapplicable to the extension, here, certainly, is no authority for a divergence and prolongation of defendant’s road beyond West street, across the intervening space to the ferry. To call so incongruous and substantial an addition to defendant’s-railroad a mere, adjunct and accessory of its authorized line involves a confusion of ideas and an abuse of language. McAboy v. Pittsburg, etc., R. R. Co., 107 Penn. St. 548.

As the defendant does not pretend to found the right it claims to exercise upon the license of the dock department, I have no occasion to show what, indeed, is already apparent, that the defendant can derive from the deck department no authority to construct and operate this railroad across this bulkhead.

Judgment for plaintiff, with costs.  