
    SPADER v. NEW YORK ELEVATED RAILROAD COMPANY.
    
      N. Y. Superior Court; Special Term,
    
    
      September, 1877.
    City Parks. —Elevated Railways.'—Public Use.—Franchise.— Legislative Control over.—Nuisance, Abatement of.— Decision in Pari Materia.—Rapid Transit Act.— Injunction.
    The declaration of the legislature that the Battery in the city of New York should remain for public, and not be appropriated for private uses, is not a contract, under which any rights or easements passed to an adjoining owner, such as could be enforced by hb action individually as a cestui que trust.
    
    The use by the public of an elevated railroad comes within the limits of what is known as a public use.
    An individual cannot maintain an action to redress an injury which consists in the usurpation of a franchise, or the creation of a public nuisance.
    A covenant in a deed by a municipal corporation that lands in the neighborhood of the premises conveyed “ shall never be appropriated to private uses,”—does not prevent their being used for an elevated railroad.
    Section 36 of the rapid transit act is constitutional.
    The legislature has authority to regulate, direct and define the powers and privileges of ferry and railroad corporations, by a general law.
    
    Trial, by the court, of an action for an injunction.
    This action was commenced by Jeremiah V. Spader on April 28, 1876, against The New York Elevated Railroad Company, to enjoin the latter from extending and operating its railroad across the Battery in the city of New York.
    
      The plaintiff was the owner of No. 7 Bridge street, which constituted lot No. 15 of the government-house block, which was bounded by State street, Bridge street, Whitehall street and the Bowling green. He-claimed that by a covenant in the deed of June 15, 1815, from the city of New York, through which he-derived title, and by a provision in the act of the legislature of March 16, 1790 (Dames' Laws, p. 390), he had the light to have the defendants enjoined from constructing their road across the Battery under a revocable license to them from the department of parks, dated February 10, 1876.
    The act of the legislature of March 16, 1790, by which the Battery, it is claimed, became vested in the city, and a dedication to certain public uses was made of the lands afterwards known as the government-house block, contained a provision as to the latter that they were “to be forever reserved for the purpose- of erecting public buildings and such works of defense thereon as the legislature shall from time to time direct ; and, further, that the same shah not, at any time, or times hereafter, be sold or appropriated to or for any private use or purpose whatsoever.” It was also provided, as to the portions other than the government-house block, “ that they are to remain for the purpose of erecting public buildings and works of defense thereon; but without any power to dispose thereof for any other use or purpose whatsoever, and without any power of selling any part thereof” (Dames' Laws, p. 390).
    The comptroller of the State was authorized by an act of the legislature passed May 26, 1812 {Davies' Laws, p. 459), to sell and convey to the city that part known as the government block, and described as the government-house and grounds adjoining. This act contained a provision “thatthe said corporation shall not have the right of selling the said grounds, for the •erection of private buildings or other individual purposes.”
    The city delayed completing the purchase from the •comptroller, and did not do so until the legislature in 1813 repealed this restriction or proviso, when the ■comptroller of the State made the conveyance to the ■city of the premises. The lands thus released from the restriction, being the government block, were laid out in lots and sold by the city, and are now occupied by the warehouses of the plaintiff and others, being about eighteen lots in number.
    The lot in question was conveyed by the city to one Edmund Smith, June 15, 1815, for $5,200. This deed and the deeds of the other lots contained a covenant, on the part of the city, “ that the vacant lots then belonging to the grantors, in the vicinity of the premises by the said deed granted, and commonly called the Battery and the Bowling green, shall never be appropriated by the grantors or their successors to private uses.” The title to the lot in question, by various mesne conveyances, became vested in the plaintiff.
    The defendants claimed the right to proceed in the construction of their elevated railroad across the edge of the Battery and within .its limits, under authority conferred by the commissioners appointed by the mayor of the city of New York, in accordance with the rapid transit act (L. 1875, c. 606), and under a revocable license, granted to them on behalf of the corporation of the city of New York by the commissioners oi public parks. The legislature had conferred upon the department of parks certain power and authority possessed by the corporation of the city of New York with reference to its parks, and among them the Battery (L. 1857, c. 771 ; L. 1870, c. 383; L. 1871, c. 290).
    The plaintiff claimed that this permission, given for the use of the Battery, violated the covenant in the deed from the city to Edmund Smith in 1815, and that against such wrongful act he was entitled to be protected by injunction ; and he claimed that it was also-a violation of a trust created by the act of March 16, 1790, releasing to the city the rights of the State in the premises in question. The plaintiff also contested the right of the commissioners of public parks to grant the license to the defendants, and of the defendants to' construct and operate a road under it, claiming that the rapid transit act is unconstitutional so far as it affects the defendants.
    The defendants claimed that the city became the owner of the land crossed by the railway in question, by grants from the crown, known as the Dongan charter of 1686 and the Montgomery charter of 1728, and had the right to convey the same, irrespective of any authority or grant from the legislature. The reservation in the Dongan charter is as follows : “ sav- , ing to his most sacred majesty, his heirs, his successors and assigns, and the lieutenants, governors and commanders in chief, and their officers under him, and them, in Fort James, in or by the city of New York, and in all the liberties, boundaries, extents and privileges thereof, for the maintenance of the said fort or garrison there, all the right, use, title and authority which they or any of them ever had, used or exercised, there.”
    The grant in the Montgomery charter is as follows : “We do give, grant, ratify and confirm unto the-mayor,” &c., “all the waste, vacant, unpatented and unappropriated land lying and being within the said city of New York and Manhattan’s Island aforesaid, extending to low water mark.”
    The exception is “except our Fort George, in our city of New York, and the ground, full boundaries and' extent thereof and thereto belonging.” “Fort James and Fort George” appear to have been the names at different periods under which substantially the same, fortified post was known and referred to.
    
      Man & Parsons, for plaintiffs.
    
      E. C. Delavan, for defendant.
    
      
       Compare Patten v. N. Y. Elevated R. R. Co., p. 306 of this vol., and other previous cases, and Burnett v. Bagg, 67 Barb. 164, and cases cited.
    
   Curtis, Ch. J.

[After stating the facts.]—The reservations in these two charters [the Dongan and the Montgomery], prevent that portion of the shore subsequently known as the Battery passing to the-city. The language indicates the intention of the-crown, and has to be construed in view of the situation at that time, and the. reservations are sufficiently broad, to prevent the title to the fort, and its liberties,, boundaries, extents and privileges, passing from» the-crown to the city. As the city was then fortified from river to river near the line of Wall street, to protect it landward, and as the fort was constructed at the earliest settlement of the island, to protect it from foreign enemies approaching through the harbor, it cannot be presumed, that the crown intended to convey to the city, the land between high and low water mark lying immediately under its seaward walls.

It must be regarded, that whatever title the city had, or has had, to the lands in question, has been .derived from the State, as the successor to the crown.

■ The plaintiff is in the same position as the other-various owners of lots in the government-house block.. His deed and their deeds contain this covenant on the-part of the city, that the Battery and the Bowling green shall never be appropriated by the city to private uses.

The wrong complained of by the plaintiff, if any,, arises from some violation of this covenant in the deed of 1815 from the city, under which he claims, or of the restriction in the act of March 16, 1790, or some infractions of both. The provision in the act of 1790, is a matter between the State making a declaration and enacting a restriction, and the city in which the Battery thereby became vested. The act of March 27, 1821 (Davies’ Laws, p. 645), purporting to convey Castle Garden to the city, contains substantially the same restriction. When the effect of this latter restriction was considered at the general term, in Phoenix v. The Commissioners of Emigration, 12 How. Pr. 5, this language was regarded as simply a dedication of the lands granted to the use, for the specified purposes, of the public at large, and it was deemed that no trust was created “for the benefit of individuals, such as private persons as cestuis que trust were competent to enforce.”

The declaration of the legislature, that the Battery should remain for the erection of public buildings, and such works of defense as the legislature shall direct, and shall not be appropriated for private uses, is not a contract, under which any rights or easements have passed to the plaintiff, more than to any other citizen, nor did such declaration create a trust for his benefit, to be enforced by his action individually as a cestui que trust. The only beneficiary was the public at large, and by it as such, through its proper officers, if it has sustained any wrong, redress is to be sought. x

The plaintiff to sustain his action, must rely on the covenant in the deed from the city to Edmund Smith, through whom he claims, and establish that the Battery has been appropriated by the city, in violation of such covenant, to private uses, and that he is in a position as plaintiff to maintain this action.

In the rapid transit act, it is enacted, “ that the use of all streets and public places by corporations building and using railroad tracks under any authority derived from that act, or for the purposes intended to be served by that act, is, and is to be regarded by all courts as a public use.” Without discussing the legal effect of this definition, it is certain that there are some settled principles that indicate a difference between public uses and private uses. Improvements of a public character, are those in the use of which, and in the enjoyment of the advantages of which, the public at large may become sharers, or may become benefited. When such improvements are authorized by the State, the latter necessarily acts through its agents, and may act through corporate bodies or individuals. The construction and operation of a railroad or a canal is a public work, and though individuals may be pecuniarily benefited by them, or directly participate in the profits arising from their use, still their purposes and business remain a public use, and land appropriated for their use cannot be regarded as appropriated for private uses. The use by the public of an elevated railroad across the Battery, comes within the limits of what is known as a public use.

It is, however, claimed that this use was one not - known or contemplated, at the time of the execution of this deed from the city in 1815, and in addition to that, it is argued that unless the defendants can show legal authority for their use of the Battery, such use is that of trespassers, and is merely a private use. Doubtless at the time of the making of the covenant in this deed, such a public use as traversing the Battery with the modern structure, known as an elevated railroad, was not in contemplation, in the minds of the parties, but notwithstanding that, it is apparent that these lands have been reserved from the earlier period for public uses. They were appropriated at first to works of defense, and for such purposes reserved in the grants by charters from the crown to the city. They after-wards were reserved for public works generally, and there is no just reason for holding that their occupancy must be confined to precisely such public uses as were known at the time. If it had been intended to exclude such public uses and works as the exigencies and developments of the future might call into existence for the public advantage and enjoyment, it should and would have been so expressed.

The evidence fails to show that the plaintiff, whose lot in Bridge street does not face the Battery, but is at a distance of some two hundred feet or more from it, actually suffers any injury from the acts of the defendants. His position is that of one of a class of owners of lots, in respect to which he claims that the defendants have violated the covenant of the city, to hold the Battery inviolate against being appropriated for private uses. If the defendants wantonly and without lawful license from the city, or those in that behalf representing the city, have entered upon the Battery, and appropriated it to a private use, the city or the plaintiff might be aggrieved, and rightfully entitled to redress, and to have such action restrained.

The proceedings under which the defendants are constructing their railroad are upon their face legal, and show that they are proceeding apparently under the authority of the law. The question is raised, that the privileges granted to the defendants under section 36 of the rapid transit act, are in conflict with the provisions of the constitution. It is just, that where a judicial determination is sought, as to the constitutionality of a provision of a statute, where the rights of the city and the rights of the public are involved, that the city and the public should be legally represented, and also be parties to the action. It does not appear that the plaintiff has sustained any damage, or that he probably will, from the acts of the 'defendants. His position in respect to such acts, is the same as that of a large class of other owners in the government-house block. The power of a court of equity, to arrest by injunction the progress of the work under construction by the defendants, and which causes no damage to the plaintiff, who sues as one of a large class of owners, ought not inconsiderately to be exercised. Neither is there such a substantial departure from a line along the edge of the Battery, as in view of the preservation of trees and the public enjoyment sought to be thereby promoted, as calls for the restraint of an injunction.

If the injury complained of is the usurpation of a franchise, or the creation of a public nuisance, the public must protect itself through its own officers, and by invoking the proper remedies established by law. It is not for every private individual, or any one of a class of individuals, to litigate on behalf of the public, and thus to champion or perhaps complicate or defeat their rights. Public policy, and the necessity of protection from a multiplicity of litigations, justify the decisions of the courts sustaining this doctrine (Lansing v. Smith, 8 Cow. 156; Davis v. The Mayor, 14 N. Y. 526; Doolittle v. Supervisors, 18 Id. 163; Milhau v. Sharp, 27 Id. 626; Osborne v. Brooklyn City Railroad Co., 5 Blatch. 366).

But passing from this, it appears that when the proceedings under which the defendants justify their action came before the general term of the supreme court, it was objected, that the act was local and private, and therefore unconstitutional. These objections-were considered, in the opinion rendered by the court, and were overruled.

In a suit where the question is again presented between parties who have already had an opportunity to-be heard and where a carefully considered opinion has been delivered upon the question, and concurred in by the judges, at the general term, there is a propriety in giving weight to that decision in this suit for an injunction, especially where no material interests of the-plaintiff are affected by the acts sought to be enjoined, and where the public and the city, whose interests are mainly affected, are not before the court as parties.

The acts of the legislature heretofore referred to, . confer upon the department of parks the power possessed by the city, with reference to granting a revocable license to use the Battery, for a public purpose, for a limited period of time. In the matter under consideration, their action is that of the city, whose agents for such pupose the legislature has made them.

The provisions of "the constitution, as now amended, are these, as contained in section 18 of article 3 :

“The legislature shall not pass a private or local bill granting to any corporation the right to lay down railroad tracks, or granting to any private corporation any exclusive privilege, immunity or franchise, but shall pass general laws providing for these cases.” And “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 the street or highway upon which it is proposed to construct or operate such railroad shall be obtained,” &c., or, in case such consent cannot be obtained, "the general term of the supreme court for the district in which it is proposed to be constructed may, upon application, appoint three commissioners, who shall determine, after hearing all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property-owners.”

Section 36 of the rapid transit act provides that the commissioners may fix and determine the route or routes by which any elevated steam railway or railways now in actual operation may connect with other steam railways, or the depots thereof, or with steam ferries ; upon fulfillment by such elevated steam railway, so far as it relates to such connection, of such of the requirements, &c., of section 4, as are required to be fulfilled by section 18, article 3 of the constitution, thereupon such connecting elevated railway shall possess all the powers conferred by section 26 of the act, and when such connecting route shall be so designated such elevated railroad may construct such connection with like effect as though the same had been a part of the original route of such railway.

The defendants have not violated the constitutional requirement by proceeding without the consent of the adjacent owners, on the substituted permission of commissioners appointed by the court. That has been obtained. The question is raised as to whether this section 36 of the rapid transit act is not unconstitutional, in so far as the defendants claim a right under and in accordance with it to make a ferry and depot connection across the Battery. The acts of the defendants are not the construction of a new, projected railroad, such as- would be apparently in conflict, but the authorized exercise of a right in its nature incidental, and, in a sense, appurtenant to what they already held, subject to the public control, and for the public use and convenience, and which the public have by this limited license permitted them, at its volition, in a specified way, to exercise and enjoy.

This ferry and depot connection is not shown to be a violation of those rights secured to the public by the constitution, because of any abuse or evasion on the part of the defendants. It is simply the direction and adaptation of a franchise already given, and not the conferring of a new franchise by a private and local bill.

The legislature has authority in respect to the powers and privileges of this class of corporations, and whether there be one or more in operation or in existence, it may by a general law regulate, direct and define their priviléges.

The plaintiff has not established his claim to a judgment for the injunction sought by his action. The complaint should be dismissed upon the merits, with costs.  