
    Robert Goelet et al., App’lts, v. Metropolitan Transit Co., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    1. Railroad—Action to restrain illegal construction—Parties.
    When the subject of an action is a common nuisance, or a private nuisance which is a common injury a bill by several parties or owners of separate properties can be maintained—owners of several distinct pieces of property may join in an action to restrain the illegal construction of a railroad in front of such pieces of property.
    2. Same—Authorized to construct main line and branches—Effect of ABANDONING MAIN LINE.
    A corporation authorized to construct a main line of railroad and branches, cannot abandon the construction of the mainline and still retain the right to construct the branches. Such right is extinguished from the time when the construction of the main line is abandoned.
    Appeal from judgment sustaining demurrer to the complaint.
    
      Elihu Boot, for app’lts; George W. Wingate and J. A. Davenport, for resp’t.
   Van Brunt, P. J.

—A large number of questions relative to the extent of the powers conferred upon the defendant, and as .to the validity of its charter and its existence were argued and discussed by the counsel upon this appeal. For the disposition thereof, however it seems necessary, only to-consider one question.

The demurrer states two grounds:

First. That there is an improper joinder of parties; and Second. That the complaint does not state facts sufficient to constitute a cause of action.

It is admitted that where the subject of an action is a common nuisance, or a private nuisance which is a common injury, that a bill by several parties or owners of separate properties can be maintained. But it is claimed that the road of the defendant would not be a public nuisance, as it is authorized by the sovereign power.

A consideration of the second ground of demurrer necessarily disposes of the first; because, we think, it is clear that in view of the allegations contained in the complaint, which are admitted by the demurrer, the defendants have no authority to construct their road in front of the premises of the plaintiffs, and in proceeding to do so the defendant would be a naked trespasser.

The authority conferred by the act under which the defendant claims to proceed, is to construct a main line with three branches. The construction to which the plaintiffs object, and to restrain the building of which in front of their premises this action is brought, is claimed by the defendants to be one of the branches authorized by the law.

The plaintiffs allege, which is admitted by the demurrer, that the defendant has never constructed or commenced to construct, its main line or any part thereof, that it has no pecuniary means that would enable it to construct such mainline, that it has no reasonable expectation of obtaining or possessing such pecuniary means; that it intends never to construct said main or stem line, and has long ago abandoned or surrendered its right to construct the same.

The question then presented is whether a corporation authorized to construct a main line and branches may abandon the construction of the main line and still retain the right to construct the branches. A mere statement of this proposition seems to carry its answer. As well might it be claimed under a power to build a house with an extension, the extension might be built without any house. The very use of the word “extension” means that it is an extension of something; and if there is nothing to extend, it is difficult to see to what the extension can attach itself. So in the case at bar, the defendant is authorized to con-, struct a branch.

This means that it shall be a branch of something; and if that something does not exist, then the branch cannot be called into being as a branch. If that which is to be a branch is built under such circumstances it necessarily becomes the main structure, and the defendant has no power to build their main structure in common with the Grand Central depot. It is only a branch of their main line that they are authorized so to connect.

If the position of the defendant were true then a railroad corporation having a right to construct a road, and incidently to condemn lands for depot purposes, could abandon. the construction of its road, and still exercise the right of eminent domain to condemn the land for the depot. A reiteration of similar instances can add no strength to the argument. It seems to be a self-evident proposition that a branch cannot exist without a stem, and as the defendant has only the right to build and maintain a branch, such right is extinguished when the construction of the main line is abandoned.

It was said upon' the argument that there was no evidence of any intention upon the part of the defendant to abandon the construction of the main line. But no evidence is necessary to establish this proposition. It is conceded by the pleadings. The fact is alleged in the complaint and admitted by the demurrer.

A careful examination of the act in question developes a fact, upon which no point has been made upon the part of the defendant, viz.: That the part of the road connecting with the Grand Central is not spoken of as a branch in the first instance. But it has been treated by the counsel for the defendant as a branch, and must necessarily be so considered; because in all the other provisions of the act in reference to its location, and to its maintenance and operation it is treated as a branch and called a branch and is distinguishable by the use of those words from the main line.

The defendant, therefore, has no right under the facts as they appear upon the pleadings to build the road in question, and in attempting to do so, would be a naked trespasser; and a bill by several parties or owners of property can be maintained to restrain such trespass.

The judgment should, therefore, be reversed, with costs and the demurrer overruled with leave to the defendant to answer on payment of the costs of the demurrer, and of the court below.

Macomber, J., concurs; Barker, J., taking no part.  