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Western New York v. F. V. R. Stillman

143 A.D. 717 Court Fourth Department, Decision date 1911-03-08 English

Delivered by Williams, J.:

Contents

Majority

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Western New York and Pennsylvania Traction Company, Appellant, v. F. V. R. Stillman, Respondent.
Fourth Department,
March 8, 1911.

Headnote

Railroad — right to use public streets —municipal • corporations — use of street for moving building — injunction prohibiting interference with trolley wires — terms on vacating injunction — stay.
While a street railroad company has vested rights in city streets they are subject to a reasonable use of the street by the public for travel and other purposes. The question as to whether the use of a public street for moving a building under a municipal permit is reasonable or unreasonable depends upon the circumstances of each particular case.
A street railroad company is not entitled to a continuance of a temporary injunction restraining a defendant who is preparing to move a house through the streets under a municipal permit from interfering with its wires and overhead construction when the court vacates the injunction upon the condition that notice he given to the railway company; that it be allowed to handle the wires and overhead construction by its own servants, and that the defendant pay all expenses and damages sustained.
A contention that such damages are irreparable because they cannot be measured in money is untenable.
Where such temporary injunction is vacated, defendant’s proceeding should not be stayed.
Appeal by the plaintiff, the Western Hew York and Pennsylvania Traction Company, from an order of the Supreme Court, made at the Allegany Special Term and entered in the office of the clerk of the county of Cattaraugus on the 26th day of July, 1910, vacating a temporary injunction theretofore granted herein, and also
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from an order entered in said clerk’s office on the 5tli day of August, 1910, denying the plaintiffs motion to stay proceedings upon the former order.
C. G. Bullis and Allen J. Hastings, for the appellant.
Dana L. Jewell and C. S. Andrews, for the respondent.

The orders should be affirmed, with costs.

The defendant desiring to move a building through the streets of the city of Olean procured leave from the city, and was preparing to do the moving when this action was brought, and the preliminary injunction obtained restraining the defendant from in any manner interfering with the wires and overhead construction of the plaintiff. The order appealed from vacated this injunction upon condition that notice be given to plaintiff and it be allowed to handle the wires and construction ivitli its own men, and that defendant pay all expenses and damages it might sustain. Very likely the building has been moved in accordance with the terms of the order since the injunction was vacated. Something to that effect was stated at the time the case was argued, and I suppose it is true, though I do not find any such fact stated in the record or briefs. We may as well determine the appeals without reference to such consideration, inasmuch as the record is silent on the subject. The plaintiff claims it had vested rights in the streets which the defendant, with the permission of the city itself, could not interfere with. (New York Steam Co. v. Foundation Co., 195 N. Y. 43 .) It is true it had vested rights, but what were the nature and extent of such rights ? They were subject to the reasonable use of the streets by the public for travel and other purposes. (American R. T. Co. v. Hess, 125 N. Y. 641 , 645; Brooklyn EI. R. R. Co. v. City of Brooklyn, 2 App. Div. 98 , 101.)

It cannot be said that in all cases the moving of buildings through the streets is a reasonable or unreasonable use of the streets. For a great many years the streets of municipalities have been so used under reasonable restriction and control. In Olean such has been the usage. (Hinman v. Clarke, 121 App. Div. 105 ; affd., 193 N. Y. 640 .) Each case must be considered by itself, and this ques

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tion settled as one of fact in the particular case. We do not regard it as important upon this appeal to pass upon the question of fact as to reasonable use under the circumstances of this particular case. This should be left to be determined at the trial. It was suggested that the damages were such as could not be fixed or measured in money, and were, therefore, irreparable. This claim is not well founded, and seems not to be pressed in this court seriously. The main damage was the expense of labor in taking down and replacing the wires. All the damages were provided for by the order. The order refusing a stay of proceedings was properly granted. If it would not continue the injunction it would be of no advantage to the plaintiff. If it would continue it in force it should not be granted, because the court desired to remove the injunction so as to permit the building to be moved.

All concurred.

Orders affirmed, with ten dollars costs and disbursements in each order.

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