Majority
p. 388James M. Waterbury and The East River Ferry Company vs. The Dry Dock, East Broadway and Battery Railroad Company, and The New York and Harlem Railroad Company. The Dry Dock, East Broadway and Battery Railroad Company vs. The New York and Harlem Railroad Company, The East River Ferry Company and Oliver Charlick.
Headnote
W. and the East River Ferry Company claimed title to a certain strip of land - lying between First avenue and the East river ferry, in the city of New York", as assignees of a grant from the corporation of the city to the Farmers’ Loan and Trust Company. By that grant certain lands under water, east of First avenue, except a space of 100 feet in width eastward from First avenue, in continuation of 34th street, were conveyed to the grantees, and the latter covenanted that they would, within three months after being
p. 389
required to do so, by the grantors, at their own expense, build and erect a wharf, avenue or street, 100 feet in width, from First avenue to Avenue A, and that they would keep in good order said street, wharf and avenue embraced in said 100 feet, and that it should thereafter continue to be a public street of the city. Under this conveyance W. and the ferry company had been for several months, and at the commencement of this action still were, engaged in filling in the land owned by them, adjacent to the said 100 feet, as well as said space of 100 feet, and in constructing a sewer across the same, and were preparing to grade and pave said space. Although no proceedings had ever been taken by the city corporation to lay out 34th street as a public street, from First avenue to the ferry-house, the strip of land between those points had been so far filled out and graded as to be constantly used by the public, in going to and from the ferry, and for common highway purposes, generally.
Two railroad companies having the right, under their respective charters and the permission of the corporation of the city, to extend their tracks across the strip of land in question, commenced, on different days, laying, constructing and extending their respective tracks in and through 34th street, and in continuation thereof, across the said strip, between First avenue and the East river ferry.
Held, 1. That 34th street, or the strip of land in question, having been, at the time when the railroad companies commenced constructing and extending their tracks in and through it, so far filled out and graded as to be constantly used by the public as a street, those companies had a right, so far as the plaintiffs were concerned, to construct and extend their several tracks through and over 34th street, or the strip of land in question, as far easterly as the grading or the condition of the street or strip of land would permit.
2. That the legal title to the strip of land in question was not in the plaintiffs, or in either, and neither had any beneficial interest in the soil thereof.
3. That considering that such strip of land was already devoted to the public use, it did not sufficiently appear that the devotion of it to an additional public use by the construction and operation of a railroad, or railroads, upon or through it, would appreciably injure either of the plaintiffs, by interfering with the filling up, or the grading, or the construction of the sewer, so as to authorize an injunction at their suit, on the ground of such interference.
4. That even though the plaintiffs might suffer some slight damage or inconvenience, from such interference, still, considering that all railroads must be deemed to be constructed and operated for public use,- an injunction ought not to be sustained, where the ability of either railroad company to pay any damages that might be recovered in an action at law was not questioned.
6. That as between the two railroad companies, both having the right to extend their tracks in and through 34th street to the ferry, until one of them had actually commenced taking a qualified possession of the center or
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middle of 34th street, by locating and constructing their extension thereon, either had the right to make its extension there, to the exclusion of the other from that particular location.
6. That the company which first actually took a qualified possession of the center or middle of the street, or strip of land, by locating and constructing their extension for a part of the distance, until interfered with by the agents or servants of the other company, acquired the right to complete the construction óf, and to operate, their extension, to the ferry, or as near to it ■ as the condition of the street or strip, and the convenient operation of the ferry, would permit, to the exclusion of the right of tire other company to interfere, in any way, with the construction and operation of the first mentioned company’s extension as thus located.
THESE actions involved the right of the several parties to the use of a strip of land one hundred- feet wide, east of First avenue, in continuation of 34th street, in the city of Hew York, extending to the East river ferry.[1] Waterbury and the East River Ferry Company, the plaintiffs in the first suit, claimed a right in the premises in question superior and paramount to either of the other parties,-and insisted that neither of the railroad companies had any authority to enter upon the said premises, or to lay down rails and run their cars thereon. The title of those plaintiffs was founded upon a grant from the mayor, aldermen and commonalty of the city of Hew York, made on the 29th of January, 1847, to the Farmers’ Loan and Trust Company, and a subsequent transfer of that title, from the trust company to them. The East River Ferry Company also insisted that the use of the premises by the defendants, the railroad companies, was an interference with the rights incident to- the franchise which had been conferred upon them. By virtue of the above mentioned grant, certain lands under water, east of First avenue, except a space of one hundred feet in width, eastward from First avenue and in continuation of 34th street, were conveyed to the Farmers’ Loan and Trust Company ; and by that conveyance the grantees covenanted and agreed with the grantors, and their suc
p. 392
cessors and assigns, that they would, within, three months after they should be thereunto required by the grantors, &e., at their own proper costs and charges, build, erect, make and finish, or cause to be built, erected, made and finished, according to any resolution or ordinance of the corporation, a good and sufficient wharf, avenue or street, one hundred feet in width, from First avenue to Avenue A, being the space in controversy in these actions. The grant also provided that the grantees, &c., should keep in 'good order said street, wharf and avenue embraced in said one hundred feet, and that it should thereafter continue to be a public street of the city of New York; and in case of a failure to comply with any of the said covenants, a right of entry was reserved to the grantors. Under this conveyance Waterbury and the East ¡River Ferry Company had been for several months, and at the time of commencing this action still were, engaged in filling in the land owned by them adjacent to the said one hundred feet, as well as said space of one hundred feet, and in constructing a sewer by and under the direction of the Croton aqueduct department; and were preparing to grade ■ and pave said space as soon as the city authorities should fix and determine the grade lines to which they must conform, as required by the covenant in the deed. No proceedings have ever been taken by the corporation of New York to lay out 34th street as a public street, from First avenue to the ferry-house, and there has been no interference- with the ferry company and Waterbury, in performing the work, until the railroad companies attempted to take possession of, and occupy the land, by laying down their tracks.
The land in respect to which this controversy arose was originally a part of the East river, and entirely under water. In 1807 an act of the legislature was passed, by which commissioners- were appointed to lay out the city of New York north of a certain line, and to prepare and
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file a map of the streets, &c. Section 8 of that act declared that said plan should be final and conclusive. A map was accordingly made, in pursuance of the provisions of that act, and the space of one hundred feet beyond First avenue, in continuation of 34th street, is not there laid down as a street.
The Dry Dock, East Broadway and Battery Railroad Company was organized under, the general railroad act, and is in the enjoyment of franchises conferred by an act of the legislature, passed April ■ 17, 1860, (Laws of 1860, ch. 512,) which authorized certain individuals therein named, and their assigns, to construct a railroad through certain streets in the city of Hew York to 34th street, and thence through and along 34th street, with a double track, to Avenue A; and thence through and along Avenue A, with a double track to, and to connect with, the double track in 14th street. Avenue A, referred to in the act, is on the East river, beyond the ferry-house of the East River Ferry Company, and was and is entirely under the water.
The Hew York and Harlem Railroad Company was chartered in 1831, to build a railroad from the city of Hew York to the Harlem river. (Laws of 1831, eh. 265.) In 1832 they were authorized by the legislature to extend their railroad through certain other streets in the city of Hew York, as the mayor, aldermen and commonalty of said city would, from time to time, permit. (Laws of 1832, eh. 93, § 1.) In 1849 they were authorized to construct a branch from their railroad to the East river, to such point as might be designated and permitted by the corporation of the city of Hew York. (Laws of 1849, ch. 75, § 3.) In March, 1864, the city corporation delected a point on the East river, to which such branch might be constructed, and gave the requisite permission to the company to extend the same, through 34th street, to the East river.
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The complaint in the first' action alleges that the plaintiff, the Bast River Ferry Company, is a body corporate and politic, formed and organized under and pursuant to the act of the legislature of the State of Hew York, entitled “ An act authorizing the formation of companies for ferry purposes,” passed April 9th, 1853, and are the assignees and owners of a grant or lease executed by the mayor, aldermen and ' commonalty of the city of Hew York, of the right and privilege of running a ferry from the foot of 34th street, across the East river to Hunter’s Point, Long Island. That the plaintiff James M. "Waterbury is the owner, in' fee, of a block of ground east of First avenue, between a line in continuation of the northerly line of 33d street, and a line in continuation of the southerly line of 34th street, and the exterior bulkhead line of the city, as established , by law, except of that part thereof which is owned by the plaintiff, the East River Ferry Company. That the plaintiff, the East River Ferry Company, is the owner in fee of that portion of said block which is at the northeast corner thereof, and is about one hundred feet square, and of the southeast corner, being about one hundred feet square of the block north of the line, in continuation of the northerly line of 34th street and southerly line of 35th street, and east of First avenue. That on thé 29th day of January, 1847, the land east of the First avenue, from the line in continuation of the northerly line of 33d street, and from the line in continuation of the northerly line of 35th street, to the exterior pier line, as established by law, was covered by the waters of the East river, and was the property of the mayor, aider-men "and commonalty of the city of Hew York. The complaint then sets forth the above mentioned grant from the city corporation to the Farmers’ Loan and Trust Company, and alleges that the plaintiffs, claiming and holding under the title of the Farmers’ Loan and Trust Company the premises in question, have, for several months past been
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and now are engaged in filling in said land so as aforesaid belonging to them, and also said space of one hundred feet wide as aforesaid, but have not completed the filling in of their own land, nor of said space of one hundred feet, nor have they as yet regulated or paved said space of one hundred feet wide, nor any part thereof, as required „by the covenant in the corporation deed. That no part of the same has been regulated or paved, nor has any part of said work been accepted by said the mayor, aldermen and commonalty as a complete compliance"with or performance of said covenant to fill in, regulate and pave as aforesaid. That neither the plaintiffs, nor the parties through whom they derive their title, have been guilty of any breach of said covenant to fill in, regulate and pave said space of one hundred feet wide as aforesaid. That it is necessary to the plaintiffs in prosecuting the work of filling in, regulating and paving said space of one hundred feet wide, that they should have the possession and control of said space. That the defendants, the Dry Dock, Bast Broadway and Battery Railroad Company, claim and insist that they are a corporation incorporated under the act to authorize the formation of railroad companies and to regulate the same, passed April 2d, 1850, and of the acts amendatory thereof, and are the assignees of the franchise and rights granted by the act of the legislature to certain persons therein named, which act is entitled “ An act to authorize the construction of a railroad in Avenue D, East Broadway, and other streets and avenues of the city of Hew York,” passed April 17th, 1860. That part of the route designated in the said grant or franchise is described in the said act as being “ through and along Birst avenue, with a double track, to 34th street; thence through and along 34th street, with a double track, to Avenue A; thence through and along Avenue A, with a double track, to and to connect with the double track in 14th street.” The plaintiffs further allege that it is physic
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ally impossible to build or extend the said railroad through or along the track thus designated. That much of the space thus designated is covered by the waters, of the East river, and is beyond the exterior line defined and prescribed as the bulkhead line and the pier line in the act to establish bulkhead and pier lines for the port of New York, passed April 17th, 1857. That the said.bulkhead line crosses Avenue A at a point near 25th street, and said line is distant from the intersection of First avenue and 34th' street about three hundred fe.et. That the defend* ants, the New York and Harlem Railroad Company, were incorporated by the act entitled “An act to incorporate the New York and Harlem Railroad Company,” passed April- 25th, 1831; and by an amendment thereto, and of other acts amending the same, passed March 6th, 1849, said company were authorized to construct a branch from' their railroad (which was located on the Fourth avenue, in the city of New York,) to the East river, at such point as might be designated and permitted by the corporation of the city of New York. That at the time of the passage of said amendment, the line ,of high water mark of the East river, across 34th street, was between 167 and 246 feet west of the First avenue; but the land east of First avenue was under the waters of the East river. That no such permission as was above authorized was given,' ox-pretended to be given, by the corporation of the city of New York until the 8th day of March, 1864, when by a resolution of that date the same was attempted or assumed to be given, as follows: “ And they, the sai*d the New York and Harlem Railroad Company, are also permitted to extend their road from the Fourth avenue, with double track, through 34th street to the East river, with the necessary switches and turnouts; with the privilege, in case they should deem the grade of 34th street' impracticable, to connect their Fourth avenue track with 34th street through 32d street and Lexington avenue; provided,
p. 397
however, that said tracks be laid under the direction of the street commissioner; and that said company shall, within ten days from the passage of this resolution, notify the mayor in writing of their acceptance thereof. That while the plaintiffs were engaged in the performance of the work of filling in, and regulating and paving said space of one hundred feet wide in continuation of 34th street, east of First avenue, and on or about the night of the 17th day of June,. 1865, the defendants, the Dry Dock, East Broadway and Battery Bailroad Company, claiming to act under the alleged assignment of the grant or franchise contained in the act of the legislature, passed April 17,1860, as aforesaid, without obtaining the consent or permission of the plaintiffs, or, as the plaintiffs are informed and believe, of the mayor, aldermen and commonalty of the city of Yew York, and against the will and consent of the plaintiffs, entered upon the said space of one hundred feet wide, which is in continuation of the line of 34th street, and dug rtp the surface thereof, and made great excavations in parts thereof, and piled up large quantities of timber, ties and sleepers on the ground, and attempted to lay heavy iron rails over a portion of the distance between First avenue and the .exterior bulkhead line, so as to construct a railroad with a double track, and now give out and insist that they intend forthwith again to enter upon the said premises, and place thereon other ties, timbers, sleepers and iron rails, so as to form a railroad with a- double track from a point near the First avenue to a point as near the exterior bulkhead line as they may be able to approach. That on or about the 19th of June, 1865, the defendants, the Yew York and Harlem Bailroad Company, claiming to act under the authority of the permission granted by the common council as aforesaid, but not acting under the direction or supervision of the street commissioner, also entered upon the said space east of First avenue, on the line in continuation of 34th street, and placed thereon large
p. 398
quantity of ties, timbers and iron, rails, and have con-^ structed a railroad with double tracks in continuation of their 34th street branch aforesaid, and are now. running cars thereon. That the tracks so attempted to be constructed bj the defendants, the Dry Dock, East Broadway and Battery Railroad Company, were intended to be, and the tracks so constructed by the defendants, the Hew York and Harlem Railroad Company, are so laid as to interfere with the construction of a sewer being built by the plaintiffs, and greatly hinders and impedes the plaintiffs in the prosecution of the work of filling, regulating and paving the said space, and imposes upon them large extra delay, cost and expense, and greatly hinders and embarrasses and prejudices the plaintiffs in complying with the terms of the covenant as to filling in, regulating and paving said space of one hundred feet wide. That the plaintiffs are advised and believe that such entry upon the said premises and interference with the plaintiffs while engaged in their work of filling in; regulating, and paving the same, is wholly unauthorized by law, and of great damage and injury to the plaintiffs. That the said space of one hundred feeif wide in continuation of the line of 34th street, east of Eirst avenue, has not been opened as, nor has the same been declared by law to be or to constitute, one of the public streets or avenues of the city of Hew York; and that neither of the said defendants have agreed' with the said mayor, aldermen and commonalty of the city of Hew York for the use or purchase of any part of said space of one hundred feet in width, which the plaintiffs have been engaged in filling in east of the Eirst avenue as aforesaid, or of any right to construct railroad tracks thereon; nor have the said defendants, or either of them, instituted any proceeding to acquire the right so to use the said premises, or any part thereof, in the manner, specified in, sections 14 to 21 inclusive, of an act entitled “ An act to authorize the formation of railroad corpora
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tians, and to regulate the same,” passed April 2, 1850, or otherwise.
The plaintiffs ask and demand the interposition of the court, that the defendants and each of them, and the agents and servants and employees of each of . them, and all persons acting and claiming .to act by or under color or authority from either of them, may be enjoined and restrained by the order of this court from interfering with the plaintiffs in the possession of said space in continuation of 34th street, east of the First avenue, and from digging up the surface thereof and from laying down any ties, timbers or iron rails or railroad tracks thereon, or from running cars thereon, until the plaintiffs have completed the filling in, regulating and paving of said space or street, and until possession of the same is accepted by the said mayor, aldermen and commonalty of the city of Yew York, and that the defendants, and each of them, be required and adjudged by the order and judgment of this court to abate and remove from the said space east of the First avenue, the ties, timbers and rails, and all other materials placed by them respectively on said space, and restore the surface of the ground as filled in, to the condition it was in before they entered upon the said premises and commenced to lay down said railroad tracks, and that meanwhile, and during the continuance of this action, the defendants be likewise restrained, and that the defendants pay the costs of this action, and for general relief.
' The complaint in the second action alleges that the plaintiffs are a corporation, incorporated under the “ act to authorize the formation of railroad corporations and to regulate the same,” passed April 2d, 1850, and the acts amendatory thereof, to construct, maintain and operate a railroad to and from the places, and upon the several routes of the railroad authorized by the act entitled “An act to authorize the construction of a railroad in Avenue I), East Broadway, and other streets and avenues of the
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city of Yew York,” passed April 17th, 1860, and are the assignees and owners of all the rights and privileges conferred by said act upon the grantees therein named. That by virtue of the powers and authority conferred in and by said acts, these plaintiffs have laid their railroad tracks over the greater portion of .the' several routes therein specified, and particularly their double track in Avenue A, from 14th street to 23d street, being as far (or nearly so) in said avenue as the same has been opened for a public thoroughfare, and also in and along First avenue, with a double track from. 23d street to 34th street, and since August, 1864, have been constantly running their cars and carrying passengers upon their said road between 11th street, near Avenue D, and Park Row at Broadway, a distance of about two and a half miles, and since the first day of June, 1865, have extended their route northerly and been constantly running their cars and carrying passengers from 14th street, near Avenue A, to said Park Row at Broadway.
That 34th street, from the First avenue, east to Avenue A, for the distance of about four hundred feet, although one of the public streets of the city of Yew York, has not, until about one month before the commencement of this action, been filled in or graded, or fit for transit or travel thereon, being covered mainly by the waters of the East river. That previous to that time, the bulkhead along the margin of waters of the East river, at the foot of 34th street, was within about fifty feet of the east line of the First avenue, and was occupied by ferry houses, or structures for ferry purposes, in the possession and enjoyment of the defendants, the East River Ferry Company, under a lease from the mayor, aldermen and commonalty of the city of Yew York, dated August 1st, 1857, of a ferry from the foot of 34th street, across the East river to Hunter’s Point, on Long Island. That within a month previous to the commencement of the suit, 34th street, from adjacent
p. 401
to the said easterly side of the First avenue, and for the distance of about two hundred and eighty-seven feet easterly therefrom, had been filled in, graded and prepared for public travel thereon, as a public street or highway, and the said ferry landing, ferry houses, and structures of the East Biver Ferry Company have been removed to the new bulkhead on the East river, at the easterly end of said 34th street, and for the distance of about two hundred and eighty feet easterly from their former position; that the surface or bed of said street, for the distance of two hundred and seventy feet easterly from First avenue, being in a favorable condition for the laying and extending of the railroad of these plaintiffs thereon, from the First avenue, along 34th street, eastwardly towards Avenue A, so as to accommodate the passengers going to and from said ferry and ferry landing, the plaintiffs on the 17th day of June, 1865, commenced preparation for laying a double track thereon for their said railroad, and to connect the same by proper and necessary curves with their said double track on the First avenue, and proceeded to extend, lay and construct the same, and at the time of the commission of the acts and trespasses hereinafter mentioned, had located, laid, constructed and extended their railroad with a double track in and through 34th street, to a point two hundred and seventy-seven feet from the easterly side of the First avenue, and were proceeding to connect both the said' tracks, by means of convenient and proper curves, with their said double track on First avenue, so that they would have been enabled, within five or six days, to commence running their railroad cars thereon for the conveyance of passengers to and from the easterly end of 34th street, so far as the same was graded and fit for' travel, towards Avenue A, and could be conveniently built upon without interfering with said ferry landings. That the said tracks of the plaintiffs were each of the ordinary and usual gouge of railroads in the city of Sew York, to wit, of four feet
p. 402
eight and a half inches, and were located nearly in the center of 34th street, leaving a space between the inner lines of said tracks of five feet, and about forty-two feet six inches from the sides of said street. That the selection made by the plaintiffs for the site or location of their said railroad tracks was the most advantageous for railroad business, but that ample space was left in said street, at the sides of the tracks of the plaintiffs, for the location of the tracks of another railroad, without material interference with the rights or conveniences of each,, other, and that such location was made prior to any location of the track of any other railroad company thereon. The complaint then sets forth the above mentioned grant from the corporation of Hew York to the Farmers’ Loan and Trust Company, and alleges that in and by said deed it is covenanted on the part of the grantees and their assigns, that the said streets and avenues therein mentioned, among which was 34th-street, described as a street of one hundred feet in width, should be and remain public streets, avenues and highways for free and common use and passage of the public. That the said defendant Oliver Charlick owns or claims some right or interest in the said premises, fronting on the northerly and southerly sides of that portion of 34th street, east of First avenue, which has been so as aforesaid filled in, graded and prepared for public travel as aforesaid. That said Charlick holds under said title of the Farmers’ Loan and Trust Company, and the said East River Ferry Company, of which he is a stockholder or officer, claims to exercise some right or authority, over the said portion of 34th street, over and upon which the plaintiffs laid and extended their railroad as aforesaid; but the plaintiffs allege that such claim is without any just pretense or reasonable excuse, and is unjustly advanced in order to aid and give countenance to the Hew York and Harlem Railroad Company in their usurpations and trespasses upon the property and rights
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of the plaintiffs, as hereinafter'mentioned. The complaint then alleges the incorporation of the New York and Harlem Railroad Company, April 25th, 1831, and the amendment of the charter, by which the said company were authorized to construct a branch from their railroad to the East river, at such point as might be designated and permitted by the corporation of the city of New York, and the permission given for that purpose, as set forth in the complaint in the first, action; and alleges that, acting under the resolution of the common council, and without other authority than is before stated, the New York and Harlem Railroad Company, in or about March or April, 1864, extended a double track from their railroad in the Fourth avenue easterly through 32d street, Lexington avenue and 34th .street to the easterly side of the First avenue, and had for a year past been running cars thereon. That the plaintiffs, in extending their said railroad tracks as before mentioned into 34th street, were proceeding to run and construct the southerly track so as to avoid any contact or interference with the tracks already laid by the New York and Harlem Railroad Company, and to run and construct their most northerly track with a wide curve, so as to cross the tracks of that company at the-intersectian of 34th street and First avenue, and connect with the westerly track of these plaintiffs in First avenue, with the least inconvenience or interference with the operation of the said the New York and Harlem Railroad Company. That during the night of the 18th day of June, 1865, and between the hours of ten p. M. of that day, and six o’clock A. M. of the 19th day of that month, a large number of men, employed by or under the direction of the said Oliver Charlick and the New York and Harlem Railroad Company, but with the connivance and concurrence of the defendants, the East River Ferry Company, with force, violence, and against the wishes of the plaintiffs, entered upon, broke up and destroyed a large portion of said rail
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road tracks, so laid by the plaintiffs in 34th street, and destroyed the connection thereof with the said curves, and laid in their place and stead iron rails and other materials belonging to them, across and upon the railroad ties of the plaintiffs, so as to form railroad tracks in continuation of the said branch of the Hew York and Harlem Railroad Company, a portion thereof on the same locations and lines as those previously occupied by the track of the plaintiffs, and the rest thereof substantially on the same lines and location, and have rendered the said tracks of these plaintiffs entirely useless for the purposes for which they were designed. And that the said the Hew York and Harlem Railroad Company, on the morning of the 19th day of June, at about six o’clock, began and have ever since continued against the wishes of the plaintiffs to run their cars thereon, and to exclude the plaintiffs from the possession or use of the location for the rails and railroad tracks so laid and constructed by them. That such acts were done without any direction or supervision of the street commissioner. That the inconvenience, loss and damage which will necessarily ensue and be sustained by the plaintiffs by means of such exclusion from the possession and use of the particular location for their rails, and the possession and use of their railroad track in manner aforesaid, could not be adequately assessed or measured in. damages, and the acts of the defendants in so destroying the railroad tracks of the plaintiffs, and continuing to use and enjoy the benefits and advantages thereof, and excluding the plaintiffs therefrom, are contrary to equity and good conscience.
"Wherefore these plaintiffs pray the interposition of this court, and that the defendants, and each and every of them, and the servants and agents of them, and each and .every of them, be perpetually enjoined and restrained by the order of this court from interfering with the plaintiffs in the constructing, maintaining and using their railroad
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and railroad tracks upon the location in and upon which the said railroad structures and tracks of the plaintiffs were laid and placed in 34th street and First avenue, previous to and on the evening of the said 18th day of June, 1865, and that the Hew York and Harlem Railroad Com- ' pony, their servants and agents, may be perpetually enjoined and restrained from using or interfering with the railroad tracks so adopted and selected by the plaintiffs; and from • maintaining or using any railroad tracks or structures on the location so selected .and occupied by the plaintiffs in the First avenue and in 34th street, east of the First avenue; and for general relief.
Upon the complaint in the first of the above-entitled actions, and affidavits thereto annexed, an order was made by Justice Miller, on the 26th of June, 1865, enjoining and restraining the defendants in that action, and each of them, their agents and servants, and every and all persons acting or claiming to act by or under color of authority from them, or either of them, from interfering with the plaintiffs in the possession of the space one hundred feet wide in continuation of 34th street, east of the First avenue in said city, and from digging up the surface thereof, and laying down any ties, timbers, or iron rails or railroad tracks thereon, or from running cars thereon, until the plaintiffs in this action should have completed the filling in, regulating and paving of said space or street, and until possession of the same should be accepted by the mayor, aldermen and commonalty of the city of Hew York, or until the further order of the court.
An order was subsequently granted, requiring the plaintiffs to show cause, on the 30th day of June, 1865, why such injunction should not be dissolved. The hearing upon said order to show cause was adjourned, by consent of parties, until the 7th day of July, 1865, before Justice Miller; when the motion to dissolve the injunction.was denied, with ten dollars costs to be paid by the defend
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ants, the Dry Dock, Bast, Broadway and Battery Railroad:„Company. From this order the latter company appealéd to the general term.
. Upon the summons and complaint in the second of the above-entitled actions-, an order was made by Justice In-graham, on the 22d of June, 1865, whereby the defendants were required to show cause at a special term, at chambers, on the 28th day of June, 1865, why the defendants,, and each and every of them, and the servants and agents of them, and each and every of them, should not be perpetually enjoined and restrained from interfering with the plaintiffs in the constructing, maintaining and using their railroad and railroad tracks upon the location in and upon which the railroad structures and tracks of the plaintiffs were laid and placed on 34th street and First avenue, previous to and on the evening of the 18th day of June, 1865, and as in said complaint particularly described; and why the'Hew York and Harlem Railroad Company, their servants and agents, should not be perpetually enjoined and restrained from using or interfering with the railroad tracks adopted and selected by the plaintiffs, and from maintaining or using any railroad tracks or structures on the location selected by and occupied by the plaintiffs in First avenue and in 34th street, east of the First avenue; and why the plaintiffs should not have such other and further relief as. might be agreeable to equity; and by which order the said justice meantime, and until the further order of the court in the premises, enjoined and restrained the defendants, and each and every of them, from interfering with the plaintiffs in the constructing and maintaining and using the railroad and railroad tracks upon the location in and upon which the railroad structures and tracks of the plaintiffs were laid and placed in 34th street and First avenue, previous to and on the evening of the 18th day of June, 1865. And by such order the said justice enjoined and restrained the defendants, the Hew
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York and Harlem. Eailroad Company, their workmen, servants and agents, until the further order of this court, from using or interfering with the railroad tracks or structures, upon the location adopted and selected by the plaintiffs in 34th street, east of First avenue.
The hearing upon said order to show cause was adjourned, by consent of all the parties to this action, to the 7th day of July, 1866, before Justice Miller, at special term, when sundry affidavits were presented on the part of the defendants, also the deed from the corporation of Hew York to the Farmers’ Loan and Trust Company. After hearing counsel in support of, and in opposition to said motion, an order was made denying the motion for a perpetual injunction, and discharging theQorder to show cause; and the temporary injunction and restraint therein contained was in all things vacated and set aside, and the parties, plaintiffs and defendants, declared henceforth to be in the same plight and condition as if said order and temporary injunction had not been made; with ten dollars, costs of the motion, to be paid by the plaintiffs to the defendants.
From this order the plaintiffs, the Dry Dock and Eailroad Company, appealed to the general term.
A. J. Vanderpoel, for the East River Ferry Company and James M. Waterbury.
Horace F. Clark, A. Schell and C. A. Rapallo, for the Harlem Railroad Company and Oliver Charlick.
H. W. Robinson, for the Dry Dock, East Broadway and Battery Railroad Company.
When the Dry Dock, East Broadway and Battery Eailroad Company commenced constructing and extending their tracks, in and through 34th street, or
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the strip of land one hundred feet wide, to a point about two hundred and seventy-seven feet easterly from the easterly side of First avenue, I understand from the papers in this case that 34th street, or the strip of land between the then easterly terminus of the Hew York and Harlem Bailroad tracks in 34th street, and the place to which the ferry-house had been removed, and where it then was, had been so far filled out and graded as to be constantly used by the public in going to and from the ferry, and for common highway purposes, generally. This being so, and considering other undisputed facts and circumstances of the case, I cannot see why either of the railroad companies had not then a right, as to Waterbury and the ferry company, to construct and extend their tracks through and over 34th street, or the strip of land between the points last mentioned, as far easterly as the grading or the condition of the street or strip of land would permit.
The legal title to the strip of land was not in Waterbury and the ferry company, or in either, and neither had any beneficial interest in the soil thereof.
Considering the then devotion of it to public use, I do not think it sufficiently appeared that the devotion of it to an additional public Use, by the construction and .operation of a railroad or railroads upon or through it would appreciably injure either Waterbury or the ferry company, by interfering with the filling up or the grading, or the construction of the sewer, to authorize the injunction at their suit, on the ground of such interference. It appears to me that the ferry company must be actually benefited by the extension of either railroad, or both..
Moreover, as the ability of either railroad company to pay any damages that might be recovered- in an action at law, for any possible injury to Waterbury and the ferry company, or either, by, or from, such claimed or supposed interference, is not questioned; considering that all rail
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roads must be deemed to be constructed and operated for public use, I .do not think the injunction at their suit ought to be sustained, even if we could see that by or from such interference they might suffer some slight damage or inconvenience.
I think the injunction at the suit of Waterbury and the ferry company, restraining the railroad companies, should be vacated, with costs.
As to the question between the two railroad companies, I assume and think that before the Dry Dock, East Broadway and Battery Railroad Company actually commenced locating, constructing and extending their tracks, in and through 34th street, or the strip of land 100 feet wide, both or either of the railroad companies had the right, as between each other, to extend their tracks easterly in or through 34th street or the strip of land, to the ferry, or as far as the grading and condition of the street, or strip of land, would permit. •
Before the'Dry Dock, East Broadway and'Battery company actually commenced taking a qualified possession of the center or middle of that part of 34th street, or the strip of land, by locating and constructing their extension, I do not see why either railroad' company liad not a right to make their extension through or along the center or middle of the street or strip, to the exclusion of the other from that particular location. I do not see upon what principle the court could have favored the right of either company thus to locate their extension, to the exclusion of the other, before any actual attempt at such location. But I think that the Dry Dock, East Broadway -and Battery Company, by first actually taking a qualified possession of the center or middle of the street, or strip of land, by locating and constructing their extension as far as they did, until interfered with by the agents or servants of the other railroad company, acquired the right to complete the
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construction of, and to operate, their extension, to the ferry, or as near to it as the condition of the street or strip, and the convenient operation of the ferry, would permit, to the exclusion of the right of the other company to interfere, in any way, with the construction or operation ot the Dry Dock, Bast Broadway and Battery extension, as thus located.
I have carefully examined the question between the two railro'ad companies, and can see no other principle or ground upon which we can put our decision.
I do not think that the circumstance that the Hew York and Harlem Railroad Company, or its officers or agents, intended to further extend their tracks through the center or middle of the street, or strip of land, and had the ties and other materials for such extension, or the circumstance that such intended extension; through the center or middle, would be more convenient for thém, in the- constructian or use, because their tracks east of First avenue, which had been constructed some time before the other railroad company commenced locating and constructing their extension in the center or middle of the street or strip, ran through and terminated in the center or middle of the street or strip, did or could affect or impair the right of the Dry Dock, Bast Broadway and Battery Company first to actually locate and commence constructing their extension, as" they did.
The order, in the action between the railroad companies and in which Oliver Charlick and the ferry company are parties defendants, should be reversed, and the injunction which was vacated by it restored "and continued, with costs to the plaintiff to be paid by the Hew York and Harlem Railroad Company.
Geo G. Barnard, P. J., concurred.
Clerke, J., dissented.
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[New York General Term,
June 15, 1866.
Injunction in first action dissolved, with costs. The order appealed from in the second action reversed, and .the injunction which was vacated by it restored and continued, with costs to the plaintiffs, to be paid by the Hew York ajid Harlem Eailroad Company.
Geo.