People v. Kerr

This action was commenced in July, 1860, to restrain John Kerr and his eleven associates from constructing the rail road authorized by the act of April 17, 1860, entitled “An act to authorize the construction of a rail road in the seventh avenue, and in several other streets and avenues in the city of Hew York,” (Sess. Laws of 1860, ch. 513, jo. 1042;) and to restrain the corporation—the defendants, the mayor &c.—from giving assent-to the construction of such rail road. The complaint was verified on the 11th July, 1860. On the 16th of the same month an order was made by a justice of this court in the first district, requiring the defendants to show cause at a special term to be held in said district at a subsequent day,1 why an injunction should not be granted as prayed for and demanded in the complaint; and in the mean time, and until the further order of the court in the premises, that the defendants and each of them, their agents, &c. be enjoined and restrained from entering into or upon either of the said streets or avenues mentioned in the complaint, for the purpose of laying.

The defendants, the mayor &c., demurred to the complaint, and the defendants Kerr and his associates put in their answer, before any order was made at the special term upon the order to show cause, &c. On the 9th day of January, 1861, an order was made, at special term, against Kerr and his associates, continuing the injunction until the final hearing of the cause; and on the 20th of March in the same year judgment was rendered, at special term, sustaining the demurrer of the defendants, the mayor &c. The defendants Kerr and his associates, who are denominated the private defendants, have appealed to the general term from the order made at special term continuing the injunction as to them, and the plaintiffs have appealed from the judgment sustaining the demurrer interposed by the defendants, the mayor &c. These appeals are now before us for adjudication.

I shall first consider the questions involved in the appeal from the order continuing the injunction against the private defendants.

Those defendants insist that the act of the legislature in question authorizes them and their assigns to construct, operate and use a rail road, and to carry passengers thereon for compensation, through, upon and along certain streets and avenues in the city of Kew York, commencing on the seventh avenue, at the southern extremity of the Central park, and running along and through a great number of streets and avenues, as particularly described and enumerated in the first section of the act. To this claim the plaintiffs interpose a number of objections. It will be proper to state and consider them in -the order in which they are presented.

1st. It is contended that the statute under which the defendants Kerr and his associates claim the franchise in

Whether the legislature had the constitutional power to grant to the persons named the unconditional right to construct and operate the said rail road within the public streets and avenues mentioned, in the manner provided in the act, and without paying for the land or otherwise acquiring the right thus to use it, is another question, which will be presently considered.

2d. The plaintiffs contend further, that if construed as an- absolute grant of the use of the streets, without compensation for such use, the act in question is void for its repugnance to the constitutional prohibition against the taking of private property for public use without compensation. (Constitution of 1846, art. 1, §§ 6, 7.) The parties who make this challenge to the validity of the act, are first, The People of the state of Hew York, by their attorney

This objection is a vital one, and if well taken, disposes of the whole case, as well against the right claimed by the grantees in the act, as against the validity of the act itself. If the act is void for want of power in the legislature to pass it, the acts intended and threatened by such grantees would, if committed, be a public nuisance; and either class of the plaintiffs, or both conjointly, may maintain this action for the injunction—the private plaintiffs, or a part of them, on the ground of the special damage or inconvenience to them as owners of lots adjacent to, or abutting upon, some of the streets in question, as alleged in the complaint, and the people of the state for the purpose of preventing the commission of a public nuisance. The defendants whose rights in this respect we are now considering, concede that a rail road is a special use, not embraced in the notion of a highway; that when not authorized by law, such use of a highway is a public nuisance; that when, for want of legal authority, it is thus a public nuisance, the adjacent proprietor may be specially incommoded by reason of his proximity, and may consequently maintain an action. The propositions contained in these concessions are unquestionably sound, and are well sustained by authority. But it cannot be doubted that if the act in question does not contravene any constitutional provision, the idea that the construction and operation of this rail road would be a public nuisance must be discarded; and in that case it is equally clear that none of the plaintiffs have any standing in court. The act, if constitutionally valid, must be sustained, whatever may be thought of the wisdom or expediency of its provisions.

Before proceeding to examine the question of the power of the legislature to pass this act, it is proper to premise: First, that the constitution declares the legislative power of the state to be vested in the senate and assembly, (Art. 3,

The way is now prepared for the examination of the principal question in the case, to wit: whether the statute authorizing this rail road is in conflect with the constitution, for the reason stated in the objection under consideration— that it omits mating any provision for compensation by the private defendants to the corporation of the city of New York, the private plaintiffs or any other other party, for the franchise granted. In order to maintain this objection, it must appear that private property is authorized to be taken for public use. But what private property is contemplated to be taken ? None whatever, that I have been able to discover, except such in respect to which it has been shown provision is made in the act for- compensation to the owners, provided it

Assuming that the occupancy of the streets and avenues by the rail road, as provided in the act, would be taking property, within the meaning of the constitutional inhibition, it would be taking public and not private property. The trust vested in the corporation proceeded from the sovereign power, either of the crown of Great Britain or of the state of New York, or from both, and exists for the use and benefit of all the people of the state, who are the beneficiaries or cestuis que trust, for whom the trust was created, and by whom, through their legislature, it is sustained and continued. The mayor, aldermen and commonalty are a municipal corporation—a public artificial existence—emanating and deriving all its powers from the same sovereign source. Like all other municipal corporations, it was created for public purposes only. It has been from time to time, by force of it charters, both ancient and modern, and by various legislative enactments, very properly vested with a great variety of corporate powers and privileges, many of which are probably incapable of voluntary legislative resumption. With the exception of these, the power of the state legislature over the city, its government, its inhabitants and all their interests, rights and obligations, is as perfect and absolute as it is over any other part of the state.

The 16th section of the charter of 1730, granted in the fourth year of the reign of George II, called the “ Montgomerie charter,” gave to the common council power to establish, direct, lay out, alter, repair and amend streets, lanes, alleys, highways, water-courses and bridges throughout the city and island. The late Chancellor Kent, in his notes on the char

It will not be denied that it was competent for the legislature to have subjected the grant in question to the payment of damages or compensation. Indeed it is contended, on the part of the plaintiffs, that such a provision was indispensable to the validity of the act. And I entertain no doubt that it was equally competent to direct such damages or compensation to be paid into the state treasury, to the credit of any or either of the state funds. This, I think, follows from the fact that the corporation hold the streets for the use of the people of the state. It would be simply absurd to say that they hold them in trust for themselves. If the legislature had thought proper they could, in the exercise of their supreme legislative power, have directed such .damages or compensation to be paid into the city treasury, or have devoted the money to general or local, educational or charitable purposes, or have given it such other direction as, in their judgment, they deemed discreet and best. If this be so, it seems to follow that the power to exempt the grantees from the payment of any damages or compensation for the franchise granted, is clearly within the scope of legislative authority.

But the occupation of the streets for the purpose of constructing and operating this rail road does not involve the talcing of property, in such a sense as to come within the

The legislature might constitutionally have passed a law for the construction of this rail road at the expense of the state or of the city, as a street improvement, to be used and operated by all persons who desired, with vehicles adapted to the improved or changed condition of the streets, subject to the payment of tolls or license fees, either to the state or the corporation of the city, or without such payment, under such regulations as the common council might prescribe. (Davis

3d, The plaintiffs also challenge the validity of the act, upon the ground that it contravenes section 9 of article 1 of the constitution. That section provides that “ The assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill appropriating the public money or property, for local or private purposes.” The plaintiffs contend that the act confers the public property for a private purpose, in surrendering to the grantees a portion of the public easement in the streets. It is hardly necessary to devote much time or labor to this objection. The plaintiffs, if I apprehend them rightly, do not place much reliance upon it. If the views herein put forth, in considering the second objection—that the grant of the franchise in question is for a public and not a private use—are sound, or the conclusion arrived at on that subject be correct, a perfect answer is furnished to this objection, assuming that the act did not receive the assent of two-thirds of the members elected in each branch of the legislature, but that it was passed by a vote of two-thirds of a quorum present in each house, pursuant to section 9 of art. 4 of the constitution.

I have thus, at much greater length than I could have wished, considered and disposed of the general propositions of the plaintiffs in support of the injunction, and am brought to a conclusion adverse to their right to maintain it.

Since the argument in this case, this court, sitting in general term in the second district, has. decided the case of The Brooklyn City and Newtown Rail Road Co. v. The Coney

For the foregoing, among other reasons, I think the order of the special term continuing the injunction should be reversed, and the injunction discharged.

In relation to the order and judgment sustaining the; demurrer by the mayor &c., it follows as a necessary consequence, from the views expressed upon the appeal just .considered, that such order and judgment should be affirmed: Because, if the conclusions arrived at are correct, or in other words, if the statute in question is free from any constitutional objections, and I am not in error in the interpretation I have given it, none of the plaintiffs have any legal ground of complaint, or any legal standing in court. If this were not so, the de

I think it is immaterial to the decision of any question presented by the appeals from the orders made at the special term in this case, whether the fee of thd streets upon or through which the rail road is to be constructed and operated, is in the city corporation, or in the abutting lot owners. Whether they have been opened and devoted to public use under the street acts, or have come by grant, dedication or usage, these streets are public highways, as much so as the Hudson river, or as an old country common highway, or a country public road laid out under the highway act. (2 R. S. 5th ed. 394 et seq.) The grant in the Dongan charter, of the streets, &c., was a grant of them for .public use. Land taken under the street acts, without the consent of the owners, has been deemed taken for public use. (Matter of Albany street, 11 Wend. 148 . Embury v. Conner, 3 Comst. 511.) Land in the city which has been expressly or impliedly dedicated for streets, has been dedicated to the public: the ^public are the people of the state, and not the inhabitants of the city merely.

The jus .publicum, or right of the people in common in a highway, is not property, whether viewed in the abstract, or in the concreta; nor does it rest on' or arise from contract. It can hardly be said to be derived from government; but it is evident that there must be some power in every state to lay out, alter and discontinue highways, and to regulate the public use of them. What power has been conceded by the courts to the legislature of this state over its public highways, will be shown hereafter.

The act of the legislature, authorizing John Kerr and his associates named in the act, to construct and operate the rail road, with its turnouts and switches, is a mere legislative license to do so. It does not authorize them to alter the

The act does not declare or require as a condition, or otherwise, that Kerr and his associates shall obtain the consent of the city corporation, or of the abutting lot owners, to the construction of the road; nor does it declare or require as a condition, or otherwise, that Kerr and his associates shall acquire the fee of the streets, or any estate or interest in the soil or bed of the streets, as distinguished from the public use to which they have been devoted or appropriated; but the third section of the act contains this provision: “And should any real estate or interest therein he required for the purpose of constrcting said rail road on said route or routes, as above specified and authorized, for which the said persons above named, or their assigns, shall be unable to agree with the owner or owners for the use or purchase thereof, they may acquire the right to use, or title to the same, in the manner specified in the fourteenth, eighteenth, nineteenth, twentieth and twenty-first sections of the said act of April second, eighteen hundred and fifty, (the general rail road act,) except that in any of the proceedings for any of the purposes authorized by this section, it shall not be necessary that the petition to the supreme court shall make an allegation of or reference to any incorporation, capital stock, surveys or maps, or of the filing of any certificate of location. But in all cases the use of said streets and avenues for.the purposes of said rail road, as herein authorized, shall be considered a public use, consistent with the uses for which the mayor, aldermen and commonalty of said city hold said streets and avenues,”

The legislature cannot. take_the property either of the city corporation or of the abutting land owners, and give it to Kerr and his accociates, without consent and without due compensation, even for public use; nor can the legislature take such property, without consent, for private use, even ytithjujl compensation; and to deprive one of the use of his land, is .depriving him of his land; for, as Lord Coke long ago said, “What is land but_the uses, thereof ?” An act of the legislature undertaking to authorize the construction and operation of a rail road over a man’s land, in his possession, and of which he has all the present uses, without taking it, but leaving the fee or title in him, without his consent and without compensation, would be just as unconstitutional as if it undertook to take the land, or to transfer the fee of it, without consent and without compensation. The existence of the road would be a continuing trespass. If such road should be constructed under a paroi license,

It will be noted that in the case just cited the action was not trespass, but case, for consequential damages, and that the rail road was constructed upon a street in Auburn, but that the question as to the right of the company to locate and continue their road on the street, without the consent of the plaintiff, an abutting land owner, without being liable to him for any direct injury as having the fee of any portion of the street, did not arise, and was not decided.

The rail road to be constructed by Kerr and his associates is to be constructed and operated through or upon certain public streets in the city of Hew York, every inch of the surface of which is devoted to public use as highways ; and it is plain, if the privilege conferred on them, of using the streets for the construction and operation of the rail road, is consistent with the public use as highways for which the streets were opened under the street acts, or dedicated or appropriated by the owner or owners of the fee, that it is immaterial where the fee of the streets is; for then- such use of the streets, though it may be a new mode of using them for public travel, is within the purpose for which they were devoted to public use, and such new mode of using them cannot be said to deprive the owner or owners of the fee, of any private property, or private possessory right, in or to the streets.

The'act confers on Kerr and his associates the privilege of constructing and operating the rail road, and of carrying passengers on it for compensation. I cannot see why this privilege must not be considered as conferred for the purpose of facilitating public travel, and as consistent with the use to which the streets have been appropriated as public highways 5

The indirect or consequential injury.to the abutting lot owners, which may be caused by the construction or operation of the rail road, will be precisely the same, whether the fee of the streets he in them, or in the city corporation. I cannot see how either its construction or its operation, as authorized by the act, can be or cause any direct injury to the owner or owners of the fee of the streets, simply as such, whether the fee be in the city corporation or in the abutting lot owners. It is plain, that the whole question of damage is one, as to indirect or consequential, not direct damage.

My intellect is not acute enough to see how the carrying of- passengers in cars on iron rails, inserted in the pavement of a street, can be or cause any greater injury to the fee of the street, or to the owner or owners of the fee as such, than the carrying of passengers in omnibuses through the street. Considering the complete and extensive servitude in favor of the public, with which the fee of the streets through which the rail road authorized by the act is to be constructed, is charged, I do not know that it is using too strong language to say, that it is absurd to say that either use of these streets can possibly be any injury, either to the fee, or its owner or

These views, as to the immateriality in this case, of the question which has been so much discussed, whether the fee of the streets in the city of New York is in the city corporation, or in the abutting lot owners, is. sustained -by the decision of the general term in the second district, in the case of The Brooklyn City Rail Road Co. v. The Coney Island and B. R. R. Co., ( 35 Barb. 364 .) They are also in accordance with the views expressed by the supreme court of Connecticut, per Ellsworth, J., in Elliot et al. v. Fair Haven Rail Road, (Law Reporter, Feb. 1861, p. 619, &c.) They appear to me to be sustained by the views expressed by Ch. J. Shaw, in Commonwealth v. Temple, (Am. Law Reg., Sept. 1861, p. 678, dec.) In the case of The Philadelphia and Trenton R. R. Co., ( 6 Whart. 25 ,) it was directly held per Gibson, Ch. J., that the provision in the constitution of Pennsylvania, that private property shall not be taken for public use without compensation, did not prohibit the legislature of that state granting to a rail road company the privilege of laying rails on the streets'of Philadelphia, and of .using the rail road so made. At page 45, Ch. J. Gibson, after citing cases to show that the legal title of the ground probably remained in him who owned it when the street was laid out, says, “but even that is an immaterial consideration; for an adverse right of soil could not impair the right of way over it, or prevent the legislature from modifying, abridging, or enlarging its use, whether the title were in the corporation or a stranger.” He afterwards says, “ what then is the interest of an individual inhabitant as a subject of compensation, under the constitutional injunction that private property be not taken by a corporation for public use, without it ? Even agreeing that his ground extends to the middle of the street, the public have a right of way over it. Neither the part used for the street, nor the part occupied by himself, is taken

The whole opinion of Chief Justice Jones, in Drake v. Hudson R. R. Co., ( 7 Barb. 508 ,) goes to show that he considered it immaterial, in that case, whether the fee of the streets was in the abutting lot owners, or in the corporation. I think the like remark may be made as to the opinions of the judges in Milhau v. Sharp, ( 15 Barb. 194 . See also Hamilton v. The N. Y. and Harlem R. R. Co., 9 Paige, 171; Adams v. Saratoga and Washington R. R. Co., 11 Barb. 450 ; Chapman v. Albany and Schenectady R. R. Co., 10 id. 365; Lexington and Ohio R. R. Co. v. Applegate, 8 Dana, 290 .)

If the use of the streets authorized by the act would be a nuisance if unauthorized, and if the fee of the streets is in the abutting lot owners, it does not follow that the abutting lot owners could maintain trespass for such use, or that such use will be inconsistent with the purpose for which the streets were laid out or dedicated as highways; there may be traveling nuisances; there maybe a use of a street as a highway, which, if unauthorized, will be a nuisance.

If a full grown elephant, however docile, should be driven

Driving droves of cattle through the streets of a city may be a great nuisance, and the drovers liable for consequential damages, for such use of the streets, after an ordinance forbidding it—but could the owners of the soil of the streets maintain trespass for such forbidden use, on the ground that such use of the streets was inconsistent with the purpose for which the streets were laid out or dedicated as highways, or on any other ground ?

The city authorities might undertake to grant to a manufacturing company, or to an individual, the privilege of carrying gunpowder or some foetid article through a particular street of the city in a way so dangerous or offensive, as absolutely to drive those living in the street out of it. If made without authority, the grant would not protect the company or individual thus using the street under the grant against actions for consequential damages ; but who would suggest, if those living in the street owned the ground to the middle of the street, that they could maintain trespass for such use of the street ?

Steam may yet be used to move ordinary wagons and coaches, carrying freight and passengers, up hill and down hill, over common country highways.. I can see that such new use of a country road, the noise and smoke of the engine, with its train of wagons or coaches, might be a nuisance to the farmers and others living on the road, and to all traveling the road with horses—but can it be pretended that the farmers and others owning the fee of the road could maintain trespass for such use of the road; or that the legislature would not have power to authorize such use, without com

What has been said does not at all interfere with the cases holding that the owner of the soil may maintain an action of trespass for obstructing a country highway, or for an unauthorized interference with his private possessory rights in it. (Lade v. Shepherd, 2 Strange, 1004. Harlow v. Humiston, 6 Cowen, 189. Dygert v. Schenck, 23 Wend. 446 , and other cases cited by counsel.) But I doubt, considering that the ordinary public use of the streets in the densely inhabited portion of the city, under the regulations of the city authorities, practically leaves to those living on them no private use or private possessory right of or in them, whether the doctrine of these cases can reasonably be applied as to obstructions in these streets, assuming the fee in them to be in the abutting lot owners.

I think the cases, The Trustees of the Presb. Church in Waterloo v. The Auburn and Roch. R. R. Co., ( 3 Hill, 567 ,) and Williams v. New York Central R. R. Co., ( 16 N. Y. Rep. 97 ,) should be considered as having been decided on the theory that the acts of the legislature authorizing the construction of the roads (the Auburn and Bochester in the first case, and the Utica and Syracuse in the other case, to the rights and liabilities of which the Hew York Central by the act of consolidation succeeded,) required these companies to acquire the title to the soil of the highway, and to. compensate the owner therefor. The first rail road act passed in this state, (the Mohawk and Hudson, passed in 1826,) and all those passed subsequently, authorized the company (if not enjoined absolutely as a condition) to acquire title to the land necessary for the construction of the road. The acts also contained a clause substantially the same in all of them, authorizing the company to construct their road across or upon any highway, but upon condition of restoring the highway so as not unnecessarily to have impaired its usefulness. The universal practice had been for the rail road companies to

But in any view of the cases in 3 Hill and 16 N. Y. Rep., above spoken of, they do not apply, and probably were not intended to apply, to horse rail roads in cities, conforming to the grade of the streéts. So also, the case of Brown v. Cayuga and Susquehanna R. R. Co., ( 12 N. Y. Rep. 486 ,) must be deemed to have been.decided ón the ground that the authority given by the act of- the legislature to construct the rail road across any stream, &c., only authorized the company which constructed'the rail road, to construct it across the stream in such a manner as not to cause injury to those owning adjoining

It is plain to me, that this question as to the fee of the streets of the city of New York, has had too important a place given to it in these city rail road cases. What is this fee, and what is its value ? It is the mere legal skeleton fee in the ground or soil of the streets divested of all private uses, and of all private possessory rights, of, or in, the surface of the streets at least, by the complete devotion of the surface to public use; which public use is so extensive as, under proper regulations of it by the city authorities, practically to leave no room for any private use or private possessory_right. ft may be called the legal organic remain of the body of living public uses rising from it. It is not a possibility of reverter, like that by the feudal law left in the feoffer or grantor, on every feoffment or grant in fee, before the statute of quia emptores ; but as to value, it is of no more value than such possibility of reverter would have been, divested of all feudal services. It is a present legal estate, but really only of nominal value, for its value as to any particular street is the value of the possibility of the public use ceasing by the discontinuance of the street; and as the privilege of the use of the streets granted to Kerr and his associates must probably be deemed to have been granted subject to the right of the city authorities to discontinue the streets, under the act of 1818, or otherwise, I do not see h.ow this privilege can affect this possibility .of re.vert.er,__not of the fee, but-of the uses of the fee. If the fee of the streets, upon or through which the rail road is to be constructed, is in the city corporation, (as it certainly is, if they were opened under either the street act of 1807, or of 1813;) and if the use of the streets by the city corporation

' It is curious, and I must confess not very agreeable to me to see, with what tenacity the courts have held on to this skeleton fee in public highways, with the avowed purpose of protecting..private rights from legislative power, as if by way of compensating for the apparently little struggle, with which such rights have been yielded up to legislative power in respect to indirect or consequential damages, however great or destructive, caused by the grant and exercise of legislative monopolies.

If the streets through or upon which the rail road is to be constructed are public highways; and neither its construction or operation will deprive the owner or owners of the fee of the streets, whether the fee be in the city corporation or the abutting lot owners, of any private right of property, use or possession in or to the streets ;'jit follows,jthat the only question presented by the appeal from the order of the special term continuing the injunction, is simply one as to the power of the state legislature over a public highway; as to the public, whom I consider the attorney general as representing in this case; as to the private plaintiffs as abutting lot owners or occupiers, who allege that as such they will suffer certain special resulting or consequential damages, by the construction and operation of the rail road; and as to the city corporation, having or claiming certain chartered rights.

As the corporation is a defendant and not a plaintiff, I am not entirely satisfied that the question of legislative power, as to it, is in the case; but the justice at special term held, if the act of the legislature was unconstitutional and void as to the city corporation, that the construction and operation

The question of power as to the public, and the question of power as tojbhe private plaintiffs, as alleging apprehended individual consequential damages merely, may he considered as qne question; for it is perfectly settled, as the cases cited hereafter on the question of legislative power will show, if the legislature had the constitutional power to authorize Kerr and his associates to construct and operate the rail road as to the public, so that neither its mere construction, nor its mere operation in pursuance of the act, will not and cannot be a public nuisance, it had the constitutional power to authorize the construction and operation of the road as to the private plaintiffs in this case, or any other individual or individuals, "without their consent, and without providing for any compensation to them for mere consequential damages; and it may be conceded, if the legislature had not this power as to the public, that then the construction or operation of the road would he a nuisance; and any individual suffering special consequential injury thereby, would have an action for the same; and that the private plaintiffs, as alleging apprehended individual consequential damages, or the attorney general in behalf of the public, or both jointly, would have a right to the injunction asked for, restraining Kerr and his associates from proceeding to construct the road under the act.

So far as the cases, Fletcher v. Auburn and Syr. R. R. Co., ( 25 Wend. 462 ,) and The First Baptist Church in Schenectady v. The Schenectady and Troy R. R. Co., ( 5 Barb. 85 ,) hold, or the court therein intended to hold, that

All questions as to any direct injury to the private plaintiffs, as having any individual or private rights of property, use or possession, in or to the streets through or upon which the rail road is to be constructed, being out of the way; the first question to be considered then is, had the legislature the constitutional power to authorize Kerr and his associates to construct and operate the rail road, as to the public; and as to the private plaintiffs, without their consent, and without providing for any compensation to the private plaintiffs for their alleged indirect or mere consequential damages, as abutting lot owners or occupiers, or otherwise ?

It is clear that at common law a common highway could not be changed without the "king’s license, first obtained upon a writ of ad quad damnum, and an inquisition thereon first found, that such a change would not be prejudicial to the public. (1 Hawk. P. C. 201, chap. 76, § 3. Jacobs’ Law Dictionary, Highway, p. 208, § 34. Thomas v. Sorrell, Vaugh. 340, 341. The King v. Warde and Lyme, Cro. Ch. 266. For form of lorit, see Jac. Law Die., Ad quad damnum.) From the form of the writ, and the cases cited, I think it clear that the writ of ad quad damnum stood between the crown and the jus publicum, or the right of the

Parliament is. theoretically omnipotent; and of course this jus publicum, or public right in a highway, within its jurisdiction, is, and always has been, entirely under its control; and so indeed are all the property rights of the king’s subjects. Theoretically, there is no limit to .the power of parliament within its jurisdiction, other than physical impossibility ; but it would appear that parliament has generally thought it right, in authorizing the construction of rail roads, to extend its protection to private property so far as not only to require compensation to be made for property directly taken, but for mere consequential damages, or when property not taken is injuriously affected by the construction or operation of the road. (See Sedg. on Stat. and Con. Law, 523, 524, n.; Queen v. Eastern Counties R. Co., 10 Adol. & El. 531; Glover v. North Staff. R. Co., 5 Eng. Law & Eq. 335; Act of the 6th and 7th Wm. IV. ch. 109; Turner and others v. The Sheff. and Roth. R. Co., 10 Mees. & Wels. 425; The Act 8th and 9th Victoria, ch. 18, commonly called, the Land Clause Consolidation Act; East and West India Lochs and Birmingham June, R. Co. v Gatthe, 3 Man. & G. 115; Glover v. North Staff. R. Co., 15 Jur. 673, 20.) It may be stated as a well settled American doctrine, that the state legislatures have unlimited power over public rights in a highway, and can obstruct, modify, impair or extinguish them, as to any highway, or portion of a highway, except so far as the state power is qualified by the commercial clause in the constitution of the United States, without malting any compensation to individuals for resulting or consequential damages.

In 1797 the legislature of the state of New York passed an act (20th Session, ch. 70) granting to Anthony Dobbin and another, for a term of years, the exclusive privilege of running stage wagons or other carriages for the transportation of passengers between Groshen, Orange county, and the

The acts of the legislature of the state of Hew York, passed in 1797 and 1803, granting to Robert R. Livingston and Bobert Fulton, for a term of years, the exclusive right of navigating by steam all waters lying within the state, with severe penalties against all others who should do the like, were held valid by the court of errors. (Livingston v. Van Ingen, 9 John. 507 . Ogden v. Gibbons, 17 id. 488.) These acts were held to be unconstitutional and void as against Gibbons who had taken out a United States coasting license for a steamboat, by the supreme court of the United States, solely on the ground that they were in conflict with the commercial clause in the constitution of the United States. Gibbons v. Ogden, 9 Wheat. 1 .) In Commonwealth v. Breed, ( 4 Pick. 464 ,) it was held that an act of the legislature of

Although I do not suppose, considering the absolute omnipotency of parliament, the nature and history of our written constitutions, and the infirmities of the language in which they were necessarily expressed, that any generality as to state legislative powers, so bold and perilous as that stated by the chancellor in this case, can be uttered with the full force of judicial authority; yet the orderly administration of justice compels me to yield to the decision itself the highest respect and authority.

In Gould v. The Hudson River R. R. Co., (2 Seld. 522,)

The 3d section of the turnpike act of 1807, (1 R. L. 231, 232,) and the 29 th section of the turnpike act, (1 R. S. 583,) and the 26th section of the act concerning plank and turnpike roads, passed in 1837, giving turnpike and plank road corporations a right to enter upon and take possession of any highway on appraisal of the public interest, and without making any. compensation for the fee, or for any resulting damage to individuals, assumed this unlimited power of the state legislature ; and this provision in those acts has been held to be constitutional. (Benedict v. Goit, 3 Barb. 459 .)

The act of April 20th, 1818, (Davies’ Laws, 620,) providing for the closing of streets in the city of New York, implies a complete power in the legislature over those streets as highways. The act provides for compensation to owners of the estate for loss or damage by or in consequence of closing streets; but the cases on-this question of power will not permit a doubt, that the legislature had the power, at least as

The power to close a street, without compensation to individuals for resulting damages, certainly implies the power to qualify the public use of a street, by the construction and operation of a rail road without such compensation.

I think it may be said, that the power of the legislature to authorize the construction and operation of a rail road in a street of the city of New York, with the consent of the city corporation, without any compensation to the abutting lot owners for resulting damages, if the fee of the street was in the city corporation ; or if the fee of the street was in the abutting lot owners, and the act authorizing the construction of the' road required such fee to be taken and paid for, upon compensation to the abutting lot owners for such fee only, without compensation to them for consequential damages ; was assumed by the court of appeals, in Davis v. The Mayor &c., ( 14 N. Y. Rep. 506 . See Judge Denio’s opinion, pp. 522, 524.) But whether assumed in that case or not, such power inevitably follows, from the cases above cited, and many others which might be cited on this question, of the power of the state legislature over public highways.

Of course it follows that the legislature has this power with the consent of the city corporation, without compensation to the abutting lot owners for consequential damages, assuming the fee of the street to be in them, if the act authorizing the construction and operation of the road does not require this fee or any estate or interest of the abutting lot owners in the street to be taken and paid for, and such new.- use of the street, being for the purpose of public travel, is consistent with the public use of such street as a highway, for which it was laid out or dedicated, and therefore will not deprive the abutting lot owners of any private property, use, or posses-^ spry right in the street.

It undoubtedly.follows from, the doctrine of the unlimited power of the state legislature 07er_high ways, thafjh^legijdature has power to authorize an individual _px a corporation Jo do a thing which at common law would be a publiejmisance. however destructive it may be in its consequences Jo indixid,ual property or rights, or however inconvenient. It maypbe, to the public, without any compensation for consequential damages. Indeed, this, is only stating the doctrince in.. a hifferent form.

I have expressed the opinion, and endeavored to show, that neither the act, nor the construction of the rail road under the act, requires the taking of any private property directly; and if this is so, the question whether the privilege was granted for public use, or from public considerations, is not in the case; but if the act enjoined it as a condition, that the fee of the streets should be acquired and paid for, it is perfectly settled, that the act would not be unconstitutional because it does not provide compensation for indirect or consequential damages. (Radcliffs Ex’rs v. The Mayor &c. of Brooklyn, 4 Comst. 195. The Canandaigua and Niagara Falls R. R. Co. v. Payne, 16 Barb. 273 . Hatch v. Vermont Central R. R. Co., 25 Verm. B. 49. Miffin v. Rail Road Co., 16 Penn. R. 193. Clark v. Saybrook, 21 Conn. R. 313.)

And independent of the declaration, on the face of the act, that the use of the streets authorized by it shall be deemed a public use, &c., it is, perhaps, equally well settled that the use of the streets authorized by the act must be deemed a public use. (Bloodgood v. The Mohawk and Hudson R. R. Co., 18 Wend. 9 .)

\ It is hardly necessary to say that the act of the legislature, conferring on Kerr and his associates the privilege in question, cannot be held void on the ground that it creates or confers a monopoly. Many if not most of the cases above cited on the question of legislative power are cases in which the question of power arose between the grantee or grantees of a legislative monopoly, and third parties, claiming that they had been or would be injured thereby. I am not aware of any case in which an act of a state legislature has been held void on f the ground, alone, that it created or conferred a monopoly, j

The only other question to be considered in this case then is, whether the legislature had the constitutional power to authorize Kerr and his associates to construct and operate the rail road, through or upon the streets of the city, without the consent of the city corporation. The legislature, by the act, not only undertake to grant this privilege without the consent of the city authorities, but the act expressly prohibits them from doing any act 11 to hinder, delay or obstruct the construction or operation of said rail road.” The question is, whether the city corporation is protected by its charter from an act of the legislature like this.

At common law, corporations were divided into aggregate and sole; and there was another division of corporations, either aggregate or sole, into ecclesiastical and lay, and lay corporations were of two sorts, civil and eleemosynary. (1 BL

There was no such distinction between corporations, as public and private, taken with reference to the power of the crown over their charters or franchises, known to the common law. (See Hale’s Analysis of the Law, 51-54. Also authorities before cited on this point.) The king could not abolish any lay corporation, or new model it, or alter its powers without assent. (King v. Passmore, 3 T. R. 244, 246. Rex v. Vice Chancellor of Cambridge, 3 Burr. 1656.)

Upon a change of government, too, it may be admitted that such exclusive privileges attached to a private corporation as are inconsistent with a new government, may be abolished. “ In respect also to public corporations which exist only for public purposes, such as counties, towns, cities, &c., the legislature may, under proper limitations, have a right to change, modify, enlarge or restrain them, securing however the property for the uses of those for whom, and at whose expense, it was originally purchased.” So far as I have been able to investigate the point, this was the first judicial intimation in the United States of the reasonableness or propriety of a division of corporations into public and private, with reference to the power of the state legislatures over

The considerations of public policy, and even of personal liberty, which might be urged against the propriety of instituting this classification of corporations, with reference to state power, I have never seen adverted to; nor havej ever "been able_to_see whyjhe charter of a city was not just as much a cqntrac_t, _as the charter of a bank, or of Dartmouth College. It is certain that Mr. Webster’s argument in the Dartmouth College case, and the common law authorities cited by him, in the main, applied with as much force to the charter of a city, as to that of Dartmouth College.

It is plain that I am right in calling the remarks which I have quoted from Justice Story’s opinion in Terrett v. Taylor and others, a dictum. What was the question in that case? The Episcopal church of Virginia, previous to the revolution, had certain lands which were confirmed to her by various statutes of the state, passed from 1776 to 1788; the legislature afterwards, by two statutes, repealed the statutes confirming the right of the church to the lands, and thus

In Angell & Ames on Corporations, § 31, the distinction between public and private corporations is stated thus: “ The main distinction between public and private corporations is, that over the former the legislature, as the trustee or guardian of the public interest, has the exclusive and unrestrained control, and acting as such, as it may create, so it may modify' or destroy, as public exigency requires or recommends, or the public interest will best be subserved. Private corporations, on the other hand, are created by an act of the legislature which, in connection with its acceptance, is regarded as a compact, and one which, so long as the body corporate faithfully observes, the legislature is constitutionally restrained from impairing,” &c.; citing the Dartmouth Col

In the case of Bonaparte v. The Camden and Amboy R. R. Co., (1 Bald. Cir. Ct. R. 222,) it was said, “generally speaking, public corporations are towns, cities, counties, parishes, existing for public purposes; private corporations are for banks, insurance, roads, canals, bridges, &c., where the stock is owned by individuals, but their use may be public.” In this state the distinction between public and private corporations, with reference to the power of the state legislature over them, was recognized and applied in The People v. Morris, ( 13 Wend. 325 .) In this case it was held that political powers conferred upon a corporation for the local government of a place, such as cities and villages, are not vested rights against the state, and may be abrogated by the legislature as well by á general law affecting the whole state, as by a special act altering the powers of the corporation. It was also held in this case, that an individual corporator cannot object to an act of the legislature altering, modifying or abrogating any power or franchise conferred by the charter upon the corporation. In this case, it was said by Nelson, J. “It is an unsound and even absurd proposition, that political power-conferred by the legislature can become a vested right as against the government in any individual or body of men. It is repugnant to the genius of our institutions,” &c. Again he says: “ Many of the English charters, incorporating cities and towns, were likewise acquired by means of an appeal either to the fears, avarice, or generosity of the crown, and like those on the continent are to be viewed, as they are in truth, in the nature of a bill of rights. It was the acquisition of so much liberty conceded by, or extorted from, a sovereign claiming nearly absolute power; and hence the idea of

I cannot- avoid saying with diffidence, that I cannot see why a legislative encroachment upon the charter of a city is not just as much a violation of the freedom of its inhabitants, as an encroachment by the crown would have been. The violation of the freedom of the citizen or subject depends certainly upon the extent and character of the encroachment, and not upon the form or source of the power from which it c unes.

The Montgomerie charter of the city of Sew York, dated January 15, 1730, authorized the aldermen of the city, with certain other officers, to hold and keep courts of general sessions of the peace in and for the city and county of New York. The legislature, by an act passed May 14, 1840, annulled the power conferred on the aldermen of the city by the charter of 1730, to officiate as judges of the court of general sessions. This act was held to be constitutional in The People v. Purdy, ( 2 Hill, 31 .) The court, per Bronson, J., said (p. 33) : “ The power of the legislature to alter the charters of public corporations without their consent—provided rights of property are not affected by it—cannot be doubted. Cities and villages exercise powers of government—a portion of the sovereign power of the state—within a limited district. Such privileges cannot, from their very nature, be the subject of an inalienable grant. They may be recalled at pleasure. Whether the act of 1840 was a wise or politic exercise of the legislative power, is a question with

The nineteenth section of the Montgomerie charter, conferred upon the corporation the office of gauger of all gaugable liquors and vessels, and of measurer of salt, grain and all measurable merchandises ; and of ■ surveyor and packer of bread, &c., with all the fees and perquisites arising therefrom. An act of the legislature was passed in 1832, regulating the measuring of grain in the city; which authorized the appointment of a measurer general, and between ten and twenty measurers by the governor and senate. The act declared that no persons except those appointed under the act should measure any grain in New York for hire or reward. This act of the legislature was declared valid by the superior court of the city, Ch. J. Jones delivering the opinion. The case is cited note 34, Kent's Char., but I do not find it reported.

Without adverting particularly to the numerous instances in which the state legislature has, particularly of late years, altered and remodeled the charter and franchises of the city, without its assent; and which have been submitted to by the city authorities, apparently without their dissent—the recognized division of corporations into public and private, with reference to legislative power; the consequent well settled doctrine that the state legislatures have full power and control over the charters and mere governmental or political franchises of cities ; and the cases last cited, relating to legislative interference with the charter of the city of New York; will not permit an escape from the cqnclusion,.that the legislature

The act of the' legislature, granting to Kerr and his associates the use of the streets for the rail road, undoubtedly interferes with the full power given in the sixteenth section of the Montgomerie charter to the common council of the city, “ not only to establish, appoint, order and direct the making and laying out of all other streets, &c. not already laid out, but also the altering, amending and repairing all such streets,- &c. heretofore made or laid out, or hereafter to be made or laid out, &c., in such manner as the said common council, for the time being, or the major part of them, shall think or judge to be necessary and convenient for all inhabitants and travelers there.” This power is a franchise. I do not see that the privilege granted by the act can interfere with any other franchise or charter power of the city. The question then is, whether this power over the streets and the laying out oft-he same, can be called property, or a property franchise ?

Chancellor Kent, speaking of this grant of power over streets, says (Kent’s Char. note 31) : “ This is a grant of a public nature, without any private' interest or property or revenue connected with it, and it has always continued with the common council, subject, nevertheless, at all times, to legislative interference and direction and he refers to various acts, colonial and state, as instances of such legislative interference and direction. It is plain that this power over the streets cannot be called a property, franchise. It is a power to lay out streets and regulate them as highways, for public use.

The complaint in this case alleges that the privileges and franchises attempted by the act of the legislature to be con

If the corporation had power to grant this privileged use of the streets, and had grantéd it, and received a million of dollars for it, the money would have been property; but surely such sale of the privilege would not have made the power granting it a property franchise. If the legislature had accepted the offer alleged in the complaint in this case, and the privilege had been granted to those making the offer, and the money had been paid to the city corporation, would this have made the power of legislation a property franchise ? Those asking for the favors of political or governmental power, may be very willing to pay for them; but if they do, it cannot he said that it changes the nature of the power. " •

The corporation has certain revenues as incidental to the power of licensing hackney coaches and public carriages, conferred, I believe, by the act of 1813; but this power, I suppose, ^of^^tiiejiiature^of^aJ^licejmwer, and the revenues incidental to it as such. The same remark may probably be made as to the license fees for running rail road cars, the right or practice of exacting which would seem to be acknowledged by the act in question.

In every aspect, then, of this question of the- power of the legislature to confer this privileged use' of the streets on Kerr and his associates—as to the public—:as to the private plaintiffs alleging apprehended consequential damages—as to the

As to the order of the special term, sustaining the demurrer of the mayor &c., I concur in the conclusion of Judge Welles, that the order should be affirmed, on the ground stated by him. It may also be observed that there is no allegation in the complaint, of any fact to show that the mayor, &c. had any intention to act adversely to the rights claimed by the plaintiffs.

After careful consideration, I am unable to concur with my associates in reversing the order continuing the injunction.

I disagree with the learned justice who writes the leading opinion for reversal, in holding that the coporation of the city of New York have no beneficial interest in the streets. Every new use which is not inconsistent with the original use by the public under the trust by which the title is held by the municipal corporation for a highway, belongs to the municipality, and not to the people of the state at large. The rail road track when laid makes use of a certain portion of the land constituting the street. It is a new use, which enures, pecuniarily, to the profit of the grantees, and, as a convenience, only to the advantages of the public. The corporation, with, the permission of the legislature, may construct the rail road and enjoy the profit. That right flows from and is attached to the fee of the land constituting the street, and is vested in the corporation. The right of the public in the streets of the city is for a highway only, as heretofore used and enjoyed; not for laying a rail road. It is

[New York General Term,

July 21, 1862.

For these reasons, and those referred to in my opinion at the special term, I am convinced that the right demanded is one which the public may not take from the municipality of the city of Hew York without payment. That the payment, when made, must go to the city treasury, for the relief of local tax payers, and not for any other public use.

I dissent from the opinion reversing the injunction order.. I concur in the order- sustaining the demurrer of the mayor, &c. of the city of Hew York to the complaint, with costs.

Order continuing injunction reversed, and order for injunction discharged. Order and judgment sustaining demurrer to complaint affirmed.

Sutherland, Leonard and Welles, Justices.]