
    The Kinsman Street Railroad Company v. The Broadway & Newburgh Street Railroad Company et al.
    "The plaintiff, a street railroad corporation, obtained ’from the city council of Cleveland the right to construct and operate its road through certain streets of the city, upon certain terms and conditions expressed, and subject to such other'terms and conditions as the council might thereafter prescribe. Among the conditions expressed, it was stipulated that a certain other railroad company, then in existence, should be allowed to run its cars upon a portion of the plaintiff’s road, upon the payment ■of such reasonable compensation as the council should prescribe, if the parties were unable to agree. Afterward, another company was •organized, to which was granted the right of way along certain streets, .and also upon a portion of the route already occupied by the plaintiff, and upon its track, upon the payment to the plaintiff of a reasonable compensation. These companies failing to agree upon the amount to be paid, the council prescribed a certain sum, which was tendered, but refused by the plaintiff. Thereupon, the plaintiff brought suit against said other last-mentioned company to enjoin said company from using any portion of Its track, alleging, among other things, that the compensation so prescribed and tendered was inadequate, which allegation was negatived by defendant. Held,
    
    1. That the plaintiff did not acquire an exclusive right to use the route upon which its road was constructed. •
    S. That the property of the plaintiff in its track was subject- to he taken for a like public use in common, upon compensation being first made. -3. That the council stipulated for the right, in such case, to prescribe a reasonable compensation.
    •A That, without proof tha<t the amount of compensation so prescribed and tendered was inadequate, the plaintiff is not entitled to an injunction.
    Appeal. Reserved in the District Court of Cuyahoga ■County.
    This action is prosecuted by the plaintiff corporation against the defendant corporation, the president and directors thereof, the city of Cleveland, the mayor and members of the city council, for the sole purpose of obtaining an injunction perpetually restraining the defendant corporation from running its cars upon the track of the plaintiff corporation’s railroad.
    In the court of common pleas a decree was entered for the ■defendants, from which the plaintiff appealed to the district court, where the cause was reserved for decision in this court. The case is now submitted to this court, as it was to the common pleas, upon the petition of the plaintiff and the answer of the Broadway & Newburgh Street Railroad Company.
    From these pleadings and the exhibits attached, it appears that the rights of the parties depend on the following state of facts :
    On September 20, 1859, the council of the city of Cleveland passed “ an ordinance prescribing the terms and conditions of street passenger railways within the city of Cleveland,” of which the first section was as follows:
    That any company organized for the purpose of laying down rails for running street passenger cars to be drawn by horses or mules through the streets of Cleveland, shall be guided, governed and regulated by the following conditions, and such restrictions as the council may hereafter pass.
    On October 25, 1859, the following resolution was adopted by the council:
    “ WJiereas, the Kinsman Street Railroad company have complied with the second section of the ordinance, entitled “ An. ordinance to prescribe the terms and conditions of street passenger railroads, in the city of Cleveland,” passed September 20, 1859, by publication of the notice therein prescribed, and have also presented to the council the written assent of two-thirds of the holders of the land fronting on the respective streets proposed to be occupied by said railway, therefore,
    “ Hesol/ved, That said Kinsman Street Railroad Company be, and hereby is, permitted to lay a single track railway from the east end of Kinsman street on and along the center of said street, to its intersection with Erie street; thence on and along the center of Erie street to Superior street; thence on and along the center of Superior street to the east line of the Public Square; thence on and along the center of the roadway around the north side of said square to Superior street; thence on and along the center of Superior street to Bank street; thence on and along the center of Bank street to Wall street; and thence on and along the center of Wall staeet to Bath street, under the terms and conditions prescribed by said ordinance, or which may hereafter, be prescribed by the city council; provided, that said company shall commence the construction of said railway by the 1st day of January, 1860, and complete the same by the 1st day of January, 1861; and provided, also, that the East Cleveland Railroad Company shall be allowed to use the track of said Kinsman street Railroad Company, from the intersection of Prospect street with Erie street to the Public Square, upon reasonable terms, to be prescribed by the council, unless agreed upon by the parties. This license shall continue 20 years from and after the passage of the ordinance regulating street railroads, passed September 20, 1859; provided, that said railroad company shall comply with the ordinance now existing and the further order of the council in relation to keeping the streets, through which said roads shall be laid, in repair, as the council shall, from time to time, direct; and, at any time said company shall fail to comply therewith, this, their said license, shall cease.”
    Afterward the Kinsman Street Railroad Company, by resolution of the council, was authorized to construct a double-track railroad, and to so change the route of its road as to cross Erie street to Pittsburgh street (now Broadway) ; thence along the center of Broadway and Ontario streets to the Public Square (now called Monumental Park); thence west and north on the street leading around the Public Square to Superior street, on -the line of its first location, “ subject, however, to the same terms, conditions and restrictions as are now imposed by ordinance, or in the permission heretofore granted to said company by resolution of the council, passed October 25,1859, and that the said Kinsman Street Railroad Company be allowed until January 1, 1862, to finish and complete their road.”
    Under the grant of privileges thus obtained from the city, and subject to the terms and conditions contained in the ordinance and resolutions above referred to, the plaintiff constructed its road upon the streets of the city above, named, and continued to use and operate the same without interruption until the happening of the alleged grievances hereafter mentioned.
    
      The Broadway and Newburgh Street Railroad Company, having a road or the right to construct one, for several miles In length, terminating at the initial point named in the following ordinance, the city council, on April 7, 1874, ordained as follows:
    “ Section 1: Be it ordained by the city council of the city of Cleveland, that the Broadway & Newburgh Street Railroad Company be, and the same is hereby authorized and permitted to use and occupy for a double-track street railroad the following parts of streets and public grounds: commencing at the point near, the southerly end of Central Market, where the track of the Kinsman Street Railroad Company intersects Broadway; thence northerly along Broadway to its intersection with Ontario street; thence along Ontario street to Monumental Park ; thence along the carriage way around the southwesterly part of said park to Superior street; and thence westerly along Superior street to Water street, but subject to such rights as the Kinsman and East Cleveland Street Railroad Companies now have therein, and also to the following terms and conditions:
    “ First. — The present charge for carrying passengers by the Broadway & Newburgh Street Railway Company, as fixed by ordinance, shall not be increased by reason of the authority and permission hereby granted.
    
      “Second. — Said company shall be subject to such liabilities and restrictions as are imposed by ordinance on any other street railroad company now permitted to use'and occupy any portion of the described parts of said streets and grounds.
    
      “ Section 2. This ordinance shall not be construed as authorizing the laying down of any other than the existing street railroad tracks in the described parts of streets and grounds, nor shall said Broadway & Newburgh Street Railroad Company exercise authority and permission granted by the first section of this ordinance until it shall have lawfully acquired the right to run its cars on said existing street railroad track.”
    On July 14, 1874, the second section of the above ordinance was amended so as to read as follows:
    “ Section 1. Be it ordained by the city council of the city of Cleveland, that section two of ‘An ordinance granting the Broadway & Newburgh Street Railroad Company the right to use and occupy certain streets for a street railroad, and prescribing the terms and conditions thereof,’ passed April 7, 1874, be and the same -is hereby so amended as to read as follows: This ordinance shall not be construed as authorizing the .laying down of any other than the existing street railroad tracks in the described parts of streets and grounds. But said Broadway & Newburgh Street Railroad Company may run its cars ■on the street railroad tracks now laid in said described parts of said streets and grounds, on such terms of compensation to the Kinsman Street Railroad Company as may be agreed upon by the parties, and in case of failure or inability to make such agreement within thirty days from the date of the passage of this ordinance, such terms of compensation shall be prescribed by the city council.”
    And on October 27, 1874, the following ordinance was adopted by the council :
    “ An Ordinance — Prescribing the terms upon which certain railroad companies shall occupy certain streets of the city for ¡street railroad purposes. „
    “ Section 1. Be it ordered by the city council of the city of Cleveland, that the terms of compensation, as contemplated by the amendatory ordinance passed July 14, 1874, be, and the same are hereby prescribed as follows : ■
    
      “First. Said Broadway & Newburgh Street Railroad Company shall pay to the Kinsman Street Railroad Company the sum of throe thousand five hundred and twenty-two ($3,522) dollars, the same being one-half of the ascertained value of the said tracks in Broadway and Ontario street, including the street railroad pavements laid therewith, and shall pay to the Kinsman Street Railroad Company one-half the expenses hereafter incurred in keeping said tracks and pavements, in repair, as the ordinance of the city requires, or in making such ■changes or alterations in said track as the city council may hereafter require. -
    “ Second. Said Broadway & Newburgh Street Railroad Company shall pay to the Kinsman Street Railroad Company .and the East Cleveland Street Railroad Company, or to either of said companies having the right to receive the same, the-sum of two thousand one hundred and fifty-three ($2,153) dollars, the same being one-third the ascertained value of the said tracks on Monumental Park and Superior street, including the street railroad pavements laid therewith, and shall pay to said company or companies one-third the expense hereafter incurred in keeping said last named tracks, turn-tables and pavements in repaii-, as the ordinance of the city requires.
    
      “ Section 2. That the terms of compensation prescribed by the first section of this ordinance be and the same are hereby made conditions of the license heretofore granted to said street railroad companies to use and occupy the described streets and public grounds, and said companies are hereby required to assent to said terms as part of said licenses.”
    The amount of compensation thus fixed was tendered by the defendant corporation, but was refused by the plaintiff. Whereupon the plaintiff commenced this action, and alleged, among other things, in its petition, that the terms of compensation as stated in the ordinance of October 27, 1874, was wholly inadequate aud un just, and the several sums of money fixed by the council as such compensation are not one-fourth the cost or value of plaintiff’s track along the route indicated in said pretended ordinance, and does not allow the plaintiff any compensation whatever for the paving of said streets and carriage-ways by plaintiff, which paving was done by plaintiff pursuant to and under the requirements of the ordinance of said city, granting to plaintiff the'right to use and occupy such streets and ways; and said terms of compensation do not include the damage to plaintiffs’ franchise and right to collect fares from passengers between Atwater Block and Central Market, and the consequent diminution and decrease of plaintiff’s revenue, derived from the carrying of passengers, and collecting fares for the same over and upon said streets and ways ; which said damage would amount to more than $50,000. And said terms of compensation do not include the damage which plaintiff would sustain by reason of the inconvenience and loss of business resulting to plaintiff by the necessary inconvenience and trouble resulting to plaintiff by its track being used by ¡said Broadway & Newburgh Company, and by the running of its ears during short intervals over plaintiff’s road, and which use of plaintiff’s tracks and running of cars could not be controlled by plaintiff. Plaintiff says such inconvenience, trouble, •and consequent loss of business would damage the plaintiff to the extent of $5,000 or more.
    
    The allegation of inadequacy of such compensation, is, however, negatived by the answer of the Broadway & Newburgh Railroad Company.
    
      J. K. Ilorcl, for plaintiff in error:
    The council could not acquire a power by an act of reservations. A right can only be reserved when it is already possessed. New York City v. Second Avenue Railroad Co., 34 Barb. 416 ; s. c., 33 N. Y. 261.
    The rails and material used in constructing the track, turntables, switches, &c., of the Kinsman street road are strictly the property of the plaintiff. Jersey City & B. R. R. Co. v. Jersey City & Hoboken R. R. Co., 20 N. J. Equity, 61; Metropolitan R. R. Co. v. Quincy R. R. Co., 12 Allen, 262-267, 270.
    In addition to this material property, the plaintiff has ac•quired a right to use the streets of the city to lay its rails, and the exclusive right to run its cars and collect fares for the •carrying of• passengers thereon. These constitute its franchise, which is also a right of property equally entitled, with its •material property, to the protection of the law. New York v. Harlem R. R. Co., 50 Barb., 285; Broolyn Cen. R. R. Co. v. Brooklyn City R. R. Co., 32 Barb. 358 ; Attorney-General of N. Y. v. Mayor of N. Y., 3 Duer, 114.
    And this franchise and incorporeal right has been in part acquired by the act of appropriation, and the exercise of the ■delegated right of eminent domain. See the language of the •statutes of Ohio, S. & S. 136, §§ 104, 137; § 107; S. & C. 278, § 29, Act of 1852; Hilliard on Injunctions, 516, §§ 13, 14; People of N. Y. v. Kerr, 27 N. Y. 188-191; People of N. Y. v. Law, 34 Barb. 494; Cin. & Spring Grove Av. R. W. 
      v. Cummins, 14 Ohio St. 523; Roberts v. Easton, 19 Ohio St. 78.
    This right of property in the material and franchises of the-plaintiff can be appropriated to a public use by the exercise of the right of eminent domain. But such appropriation can only be made by legislative authority, and in the mode prescribed by law. Sixth Avenue R. R. Co. v. Kerr, 45 Barb. 138 ; Boston v. Lowell R. R. Co., 2 Gray, 1 ; Metropolitan R. R. Co. v. Quincy R. R. Co., 12 Allen, 262; Matter of Kerr, 42 Barb. 119-121; Waterworks Co. v. Burkhart, 41 Ind. 364.
    The right to re-appropriate or take from a corporation the-properties which it has acquired by an act of appropriation is-an exercise of the high prerogative of eminent domain, and cannot be exercised without express legislative authority. It. cannot be exercised under a merely implied authority. Hatch v. R. R. Co., 18 Ohio St. 92-119 ; Hickox v. Hine, 23 Ohio St., 523-531; Railroad. Co. v. Dayton, 23 Ohio St. 518 ; Springfield v. Conn. River R. R. Co., 4 Cush. 61, 69-72.
    Exjaress legislative authority was necessary to enable a railroad company to take or appropriate public streets or alleys, or grounds appropriated in any way to a public use (S. & C, Statutes, 378, § 29), or to appropriate or use a bridge constructed by another company. 57 Ohio L. 10, § 12.
    The right to take, appropriate, or use the track or other-material of plaintiff, or its franchise, has not been conferred upon the B. & N. Company by the legislature, neither directly nor indirectly. S. & C. Statutes, 278, § 29; S. & S. Statutes,. 136, §§ 104-107, 108, 113.
    One competing street railroad company cannot take, by the exercise of the right of eminent domain, a part of a competing-road in successful operation, and the most valuable part of it.. Central City Horse R. W. Co. v. Ft. Clark R. W. Co., 81 Ill. 533.
    In this case the attempt was made by one company to condemn and appropriate, in the regular way, a part of the track of another company. To prevent this an injunction was-allowed and made perpetual. No right has been conferred upon the city council to take private property, except for its own use, and no authority has been conferred upon it to take-any other than real property for any purpose, and no authority, either express or implied, has been delegated to it to take-the property of one corporation for the rise of another. 66-Ohio Laws (Municipal Code), 217, §§ 411, 412, 413, 414 ; & S. Statutes, 137, §§ 105, 106; 67 Ohio L. 72, § 199, and. p. 74; par. 33.
    The legislature has supreme control over the streets of a. city. People v. Kerr, 27 N. Y. 188-192.
    The attempt of thé city council to appropriate the use of plaintiff’s property to the B. & N. Company is a usurpation of power, and is not warranted by law. People v. Law, 34 N. Y. 494.
    The right of plaintiff to lay its rails upon the streets of the city was granted by the council, “ subject to such restrictions as the council may hereafter pass.” ■ This reservation does not confer upon the council the right to interfere with plaintiff’s franchise, nor to place upon its track the cars of a competing company. A right of appropriation cannot be acquired by a mere reservation. The “restrictions” mentioned in the ordinance only refer to such police regulations as the council may impose upon any person or corporation using the streets of the city. Mayor of N. Y. v. Second Avenue R. R. Co., 34 Barb. 41-45; affirmed by the court of appeals in 32 N. Y. 261; Paterson & Passaic R. R. Co. v. Mayor of Paterson, 24 N. J. Equity, 158-164.
    The passing of an ordinance by the city council, authorizing plaintiff to occupy parts of certain streets for a street railroad, subject to certain conditions, and the acceptance of the conditions by plaintiff, and laying its track and perfecting its read under the ordinance, constitutes a contract between the city and plaintiff, which cannot he arbitrarily changed by the council without the plaintiff’s consent. East Hartford v. Hartford Bridge Co., 10 How. U. S. 510; 18 Curt. 483; Mayor of 
      
      N. Y. v. Second Avenue R. R. Co., 34 Barb. 41-45; affirmed in 32 N. Y., 261; Brooklyn Cen. R. R. Co. v. Brooklyn City R. R. Co., 32 Barb. 358-364; Attorney-General of N. Y. v. Mayor of N. Y. City, 3 Duer, 119, 146-149; Mayor v. Troy, 49 N. Y. 657; B. & L. R. R. Co. v. S. & L. R.R. Co., 2 Gray, 1; ordinance of city council, September 20, 1859, §13. See Compilation of City Ordinances, 1868, p. 652 ; ordinance February 10, 1832, § 9; Compilation of 1863, p. 299.
    The action of the city council in such a case is not a legislative act, but is the same as would be the act of an individual dealing with rights of property. See. 34 Barb. 41-45 ; 32 N. Y. 261.
    When a railroad has been laid down in the streets in pursuance of the statute and with the assent of the municipal corporation, it does not become a part of the street, so as to authorize the public at large or another company, with the consent of the council, to use the railroad with cars in common with the owners of the franchise. Brooklyn Cental R. R. Co. v. Brooklyn City R. R. Co., 32 Barb. 358-361. See also 20 N. J. Equity, 61; 21 N. J. Equity, 550; 12 Allen, 262, 272, and 24 N. J. Equity, 158-164, previously cited.
    A company, having lawfully laid its track in the streets, is entitled to compensation from another, company using the whole or a part of its track. 45 Barb. 138; 12 Allen, 262-271; 42 Barb. 119-121; 41 Ind. 364, and 34 N. Y. 494-507, previously cited.
    And the first company is entitled to all fares collected on its road, less cost of transportation, which should be included in estimating compensation to be paid for the use of the company’s track. 12 Allen, 271.
    If a competing company is' permitted to lay its own track in a street occupied by the track of another company, the owners of the first tract are entitled to compensation. 45 Barb. 138, previously cited.
    The right of the legislature. to repeal or amend acts of incorporation does not include a right, on the part of the legislature or city council, to interfere with vested rights, nor rights •of property, nor to pass laws or ordinances affecting the validity of contracts. McArthur v. Kelly, 5 Ohio, 139 ; Toledo Bank v. Bond, 1 Ohio St. 622; Shaw v. Starret, 4 Ohio St. 494; Lamb v. Lane, 4 Ohio St. 167; Matheney v. Golden, 5 Ohio St. 361: Ross Co. Bank v. Lewis, 5 Ohio St. 447; Sandusky City Bank v. Wilber, 7 Ohio St. 481; Dartmouth College v. Woodworth, 4 Wheat. 518 ; 32 Barb. 358 ; 3 Duer, 119, previously cited.
    Injunction is the proper remedy in a case of this kind. People v. Law, 34 N. Y. 494, 506, 507; Boston Water Power Co. v. Boston, 16 Pick. 512, 525, 526; B. & L. R. R. Co. v. S. & L. R. R. Co., 2 Gray, 1; Hilliard on Injunctions, 362, § 8, and 516, §§ 13, 14; C. C. Horse R. W. Co. v. Ft. Clark Horse R. W. Co. 81 Ill. 533.
    
      John Goon, for defendant in error:
    We submit:
    1. That the plaintiff had acquired no exclusive privileges in the streets and grounds mentioned. Railroad Co. v. Kerr, 45 Barb. 138; 18 Ohio St. 262 ; Railway Co. v. Cumminsville, 14 Ohio St. 523.
    2. That the plaintiff retains no such right of property in the material composing the tracks in question, as can support its •claim to an exclusive right to use the same. 1 S. & 0. Statutes, 278, § 12.
    3. That the permission granted to the defendant to use said •tracks jointly with the plaintiff, is not a taking of private property. People v. Kerr, 47 Barb. 357; 27 N. Y. 188; Railroad Co. v. Brownell, 24 N. Y. 345; Railroad Co. v. Kerr, 45 Barb. 138.
    4. Granting a proprietary interest in such material to the plaintiff, the permission to the defendant contains just and lawful provision for the’ ascertainment and adjudication of the plaintiff’s damages; and by such adjudication the defendant acquired the right to use the tracks, and the plaintiff acquired •a right of action to recover the damages awarded as compensation. Railway Co. v. Railway Co., 21 N. J. Eq. 550.
    
      5. The city of Cleveland holds its public streets and grounds for only the purposes and uses of their dedication; and the permission to the defendant is within the requirements of this trust.
   McIlvaine, C. J.

The true relation between the city of Cleveland and the Kinsman street Railroad Company is the question of prime importance in this case. The power to-regulate and control the public streets of the city is lodged in the municipal authorities. The object in conferring this-power, and its exercise by the city council, are, and should be, to conserve the public welfare and convenience. One of the-modes of promoting this welfare and convenience is through the establishment of street railroads. The plaintiff corporation, organized under the general incorporation act of May 1,, 1852, by section 12 of the act was bound to recognize this-power of the municipal authorities oyer the streets of the city. Section 12, as amended April 15, 1857, provides : “ If it shall be necessary, in the location of any part of any railroad, to-occupy any road, street, alley or public way or ground of any kind, or any part thereof, it shall be competent for the municipal or other corporation or public officer or public authorities-owning or having in charge thereof, and the railroad company, to agree upon the manner and upon the terms and conditions upon which the same may be used or occupied; and if said, parties shall be unable to agree thereon, and it shall be necessary in the judgment of the directors of such railroad company to-use or occupy such road, street, alley or • other public way or ground, such company may appropriate so much of the same-as may be necessary for the purposes of such road, in the same-manner and upon the same terms as is provided for the appropriation of the property of individuals,” &c. Under the-authority of this section, the plaintiff and the city authorities-agreed upon the terms and conditions upon which the plaintiff’s road was constructed upon the streets ofthe city.

"While we think that it was not within the power of the municipal authorities, by such agreement, to confer upon the plaintiff the right to use these streets for railroad purposes, to the exclusion of all other persons or corporations, if the public welfare of convenience should require a further similar use; we also think that no such exclusive right was intended to be conferred. If an exclusive privilege was intended, it should have been expressed, and we find in the ordinance and resolutions relied on, not only the absence of such expression, but, on the other hand, a different intention indicated. In the ordinance of September 20, 1859, it was declared that “ any company organized for the purpose of laying down rails and running street passenger cars to be drawn by horses or mules through, the streets of Cleveland, shall be guided, governed and regulated, by the conditions (therein expressed) and such restrictions as-the council may hereafter pass.” And in the resolution of' October 25, 1859, containing the grant of right to the plaintiff " specially, it is provided that the right is granted under the terms and conditions prescribed by said ordinance ” (of September 20, 1859), “ or which may hereafter be prescribed by the city council.” And a like stipulation is contained in the subsequent resolutions authorizing a change of route. ■ We-have no doubt, that under the power thus stipulated for (if such reservation had been at all necessary) the municipal authorities might at any time thereafter (if it was thought the-public convenience required it) grant the like privilege to another company to use and occupy the same streets, and indeed the same route, for railroad purposes, to be used in common •with tñe company or companies to whom the privilege was-first granted. ,

What we have already said in refutation of an exclusive-right in the plaintiff to use the route upon which its tracks-were laid for street railroad purposes, does not in the least conflict with its right of private property in the material of which •its road is constructed. Buell material, in place, is as strictly the private property of the corporation as it was before it was-placed, save in this only, that having been placed in a public-street, it was thereby dedicated to the ordinary use of the public; but, as a railroad, such material remains the private property of the company, and for such purpose it is subject to the use and control of the owner exclusively. When, therefore, a right of way for street railroad purposes is granted over the same ro.ute to another company by the municipal authorities,, the private property of the former cannot be appropriated by the latter company until compensation is first made by the latter to the former company. And, in the absence of a stipulation to the contrary, it is quite clear to ■our minds, that the municipal authorities have no more power to fix the amount of compensation that should be paid by the latter to the former company for the right to the joint use of ■such material, than it has to determine the compensation to be paid to other owners of private property taken for the same public use. In such case, if no agreement be made between the companies as to the matter of compensation, or the same be not assessed by a jury as in other cases of the condemnation of private property to public uses, the latter company should be' enjoined from the forcible appropriation.

But in this case we find a stipulation to have been made ; namely, that the plaintiff would lay its tracks under the terms .and conditions prescribed by the ordinance of September 20, 1859, or which might thereafter be prescribed by the city ■council; and, also, that the East Cleveland Street Railroad Company (a corporation then in existence) should be allowed the use of the plaintiff’s track upon reasonable terms, to be prescribed by the' council, unless agreed upon by the parties. 'The right of the council to prescribe “ terms and conditions ” ' in the future, it seems to us, was sufficiently broad to cover a future exigency like the one then existing, and specially provided for ; namely, an exigency arising from the necessity to provide for the public welfare by running the cars of other street railroad companies over the track of the plaintiff. And this being so, the only question remaining is, was the condition as to the compensation to be paid by the Broadway & New-burgh Company to the plaintiff reasonable ? In other words, was the compensation, as fixed by the council, fair and adequate? Upon this question issue was joined, but no testimony offered. The burden of showing its inadequacy rests upon the plaintiff. Under these circumstances, the injunction prayed for must be denied.

Petition dismissed.  