Hudson River Telephone Co. v. Watervliet Turnpike & Railway Co.

All the injuries of which the plaintiff complains are due to the adoption by the defendant of the single-trolley system of electric propulsion. It becomes, therefore, of the first importance to determine whether this change of motive power was authorized by law. The plaintiff makes a vigorous attack upon the right of the railway company to the enjoyment of such a franchise and urges many_ grounds in support of its position. We cannot assent to the argument of the learned counsel for the defendant that the determination of this question is immaterial, because the state alone, by its attorney-general, can bring suit for a usurpation of corporate powers, or, because ordinarily, the local authorities must prosecute for an unlawful obstruction of the streets, not involving the appropriation of private property. In the case of a corporation, exercising a delegated authority for the public benefit, the actionable quality of a private injury resulting therefrom may depend upon the legislative will, and the aggrieved party may be without remedy if the damage sustained is the result of the proper exercise of a power or privilege conferred by law, and a right of action is not given by express enactment. This immunity from liability does not, however^ extend to acts which are ultra vires, or which are equivalent to a confiscation or condemnation of the property rights of the citizen, unless provision is made for due compensation. If the sovereign power has never granted to the defendant the right to make use of electricity in the traction of its cars in the streets of Albany, it must respond to the plaintiff and to all others whose lawful pursuits are invaded by its illegal procedure.

But we think it is clear that under the act of 1802 (Cli. 233), and the ordinances of the common council of the city, the defendant was invested with the authority to adopt this method

The report of the referee removes all doubt with reference to the safety and practical usefulness of the system adopted by the defendant. He finds, in substance, that it is the most efficient and economical, and the best thus far devised, and less liable to accidents, through the displacement of machinery, than any other trolley system; that it subserves the public interests and satisfies the public wants, with respect to transportation; that it is not prejudicial to the public health, or dangerous to human life; and that no other system of electric propulsion of cars has thus far been demonstrated to be as practicable, effective and advantageous, both to the public and to private interests, as the overhead, single-trolley system.

As the evidence is not contained in the record, these findings must be deemed to have been supported by competent proofs, and they leave no room for the contention that the use of this system is unsafe, or dangerous, or in any degree a public nuisance.

The act of 1862 cannot properly be limited to such methods of operating street surface railways in cities as had then been invented and were then in actual use. The words of the statute are to be interpreted according to their natural and obvious meaning, and, as the terms employed are not ambiguous, extrinsic facts are not available to restrict the authority which it plainly confers. The language, literally construed, includes undiscovered, as well as existing modes of operation. Electricity, as a natural and applied force, was then well known and it is reasonable to infer that its adaptation as a propelling power was even then anticipated. It would be an unjust

It is not to be denied, that it is a sound rule of statutory construction which permits nothing to be taken in a grant of corporate powers, that is not plainly expressed, or unequivocally given, or not demanded by necessary implication. The defendant claims nothing more; but the plaintiff endeavors to cut down the franchise bestowed by eliminating from the statute the general words of the grant. As in 1862 these railways were run exclusively by animal power, the provision in section 4 of the act, which authorizes the defendant to adopt any mechanical or other power, or the combination of them, which it might choose to employ, except steam, was superfluous, if its range of selection is to be confined to the motive forces which had then been discovered and employed. The history of plaintiff’s franchise is instructive upon this point. It is an intruder in the public streets and not possessed of any property rights which a court of equity can be invoked to protect, if the canon of construction which it insists upon applying to the grant of the defendant’s franchises, shall be allowed to prevail. It is incorporated under the act of 1848 (Chap. 265), providing for the formation of telegraph companies. At that time, and for twenty years afterwards, the

It would also be a narrow and illiberal construction of the statute to hold that the defendant was irrevocably bound by the choice of a motive power made in 1862. It then selected the only practicable one, but the authority to employ others was not thereby exhausted. It Avas a continuing privilege and was intended to be potential whenever and as often as the means of public travel might be improved or facilitated by its exercise. Equally flexible was the power given to the common council of the city to impose such reasonable conditions upon the enjoyment by the defendant of the franchises of a street railway company as in their judgment the interests of the public seemed to require. Their authority, in this respect, was coincident in extent with the company’s right of selection. They could limit the municipal assent to a railroad operated in a specified way, as they did by the ordinance of 1862, and while that remained unmodified no other method could be lawfully used, and they could, by a subsequent ordinance, as in 1889, authorize the necessary changes to be made in the equipment of the streets for the introduction of electricity as a propelling force. This power is fairly inferable from the original act, and may also, perhaps, be deduced from the provisions of the city charter, which authorize them to regulate the use of the streets by railways.

This case is clearly distinguishable from that of the Third Avenue Railroad ( 112 N. Y. 396 ) cited at length by plain

The defendant was not subject to the provisions of section 12 of the Street Surface Railroad Act of 1884 (Ch. 252), as amended by chapter 531 of the Laws of 1889, requiring the approval of the railroad commissioners and the consent of the owners of one-half in value of the property abutting upon the streets.

It had the right to make the change under the act of 1862 upon obtaining the consent of the common council, and hence it is embraced within the saving clause contained in section 18, which declares that the act of 1884 shall not interfere with, repeal, or invalidate any rights theretofore acquired under the laws of the state by any horse railroad company, or affect or repeal any right of an existing street surfacej'ailroad company to construct, extend, operate and maintain its road in accord- * anee with the terms and provisions of its charter and the acts amendatory thereof. Inchoate, as well as perfected rights are saved by such a provision. (N. Y. Cable Co. v. Mayor, etc., 104 N.Y. 1 .)

The defendant’s authority to use electric motors in the propulsion of its cars in the streets of Albany and to operate them

There is no question of prior equities involved. It is a matter of strict legal right. Neither priority of grant nor priority of occupation can avail either party. The plaintiff has a franchise which is entitled to protection, but the prime difficulty it encounters grows out of its subordinate character. It has been given and accepted upon the express condition that it shall not obstruct or interfere with the enjoyment by the defendant of its franchises. The plaintiff is not using the streets for one of the purposes to which they have been dedicated as public highways, while the defendant is occupying them in such a manner as to expedite public travel and promote the public use to which they were originally devoted. The condition contained in the plaintiff’s grant would have been implied had it not been expressly named.

The primary and dominant purpose of a street is for public passage, and any appropriation of it by legislative sanction to other objects must be deemed to be in subordination to this use, unless a contrary intent is clearly expressed. The inconvenience or loss which others may suffer from the adoption of a mode of locomotion authorized by law, which is carefully and skillfully employed, and which does not destroy or impair the usefulness of a street as a public way, is not sufficient cause for a recovery, unless there is some statute which makes it actionable. A different rule prevails if there has been an encroachment upon private rights to the extent of an appropriation of private property, and it was upon this ground that the decision hi the elevated railroad cases was placed. (Story v. N. Y. E. R. R. Co., 90 N. Y. 122 ; Lahr v. Met. E. R. R. Co., 104 id. 268 .) It was there held that an abutting owner has an easement of light, air and access in the street in front of his premises, of which he cannot be lawfully deprived without compensation, by the erection and use of an elevated railway structure.

These considerations necessarily dispose of one of the grounds upon which the plaintiff claims to be entitled to relief from the special injury sustained by the acts of the defendant, namely, the derangement of the electric currents upon its lines of wire by means of induction, as it is called, in electrical dynamics.

It seems to be indispensable to the successful prosecution of the plaintiff’s business, that it should make use of an exceedingly weak and sensitive current of electricity. By a law of electric force, not clearly defined or understood, the transmission of a powerful current, such as the defendant must use to supply motion to its cars, along a line of wire parallel with and in close proximity to the plaintiff’s wires, induces u}3on the latter an additional current, which renders the operation of the plaintiff’s telephones at all times difficult and sometimes impracticable. It is found that this disturbance cannot be avoided by the defendant without a complete change of the system adopted, and the use of motors which are more expen sive, more dangerous and less useful and efficient. It is obvious, that to require such change to be made would be to grant to the plaintiff, by a decree of the court, that which the legislature has expressly and intentionally withheld. But the

It is immaterial whether its wires are grounded upon its own property or that of others, who permit the plaintiff to so use their premises. Its possession as a licensee would be lawful While the license continues. The defendant allows the electric current used for the movement of its cars to escape or discharge, at least in part, directly from the rails into the ground, from Whence it spreads or flows, by reason of the conductivity of the earth, upon plaintiff’s grounded wires, and the most serious loss which the plaintiff sustains results from this cause, which is scientifically known as conduction. The defendant insists that it has an equal right with plaintiff to make use of this property, or law of nature, in the conduct of its business, just as all are entitled to the common use of the air and the light of the heavens, which, in a certain sense, is undoubtedly true. But the defendant does something more. It does not leave the natural forces of matter free to act unaffected by any interference on its part. It generates and accumulates electricity in large and turbulent quantities, and then allows it to escape upon the premises occupied by the plaintiff to its damage.

We are not prepared to hold that a person even in the prosecution of a lawful trade or business, upon his own land, can gather there by artificial means a natural element like eleen tricity, and discharge it in such a volume that, owing to the. conductive properties of the earth, it will be conveyed upon the grounds of his neighbor with such force and to such an

But the record before us does not require a determination of the question in this form. The use which the plaintiff is making of its grounded wires, is a part of its system of telephonic communication through the public streets, and a 11 necessary component of the service it maintains there under the permission of the state and is subject to the condition

In the disposition of this appeal there has been no occasion to make any application of the rule that where a publicise authorized by law takes no property of the individual, but merely affects him by proximity, the necessary interference in his business or in the enjoyment of his property occasioned by such use furnishes no basis for damages. (Radcliff Exrs. v. Mayor, 4 N. Y. 195 ; Bellinger v. N. Y. C. R. R., 23 id. 42; Mayor v. N. Y. C. & H. R. R. R., 88 id. 351; Uline v. N. Y. C. & H. R. R. R., 101 Id. 98; Am. Bk. Note Co. v. N. Y. E. R. R. Co., 129 id. 252.) Under such a rule it would be a grave question whether the injuries to which the plaintiff was subjected would not, if made permanent, constitute a servitude upon its property which could not be imposed without compensation, provided the parties were occupying the streets upon an equal footing. As was said by Judge Andrews in Cogswell v. N. Y., N. H. & H. R. R. Co. ( 103 N. Y. 14 ): “ It is, in many cases, difficult to draw the line and to determine whether a particular use is consistent with the duties and burdens arising from vicinage, or whether it inflicts an injury for which the law affords a remedy.”

We are spared the task of discrimination in this case by reason of the legal attitude which the plaintiff has assumed in its occupation of the streets. It has accorded to the public, by the manner in which it has elected to use its franchise, the unrestricted right of passage, and it cannot question the form in which such right shall be enjoyed so long as it is of lawful origin and is utilized with proper care and skill. The defendant’s mode of conveyance of passengers is of this character, and the plaintiff can no more justly complain of its loss from this source than it could if, by the jarring of loaded vehicles passing up and down Broadway, its delicate and sensitive

There is also an appeal by the defendant from- an order denying a motion for an extra allowance of costs. The decision of the court below was placed upon the ground of a want of power, and the special reason assigned was “ that the action being to restrain the defendant from employing a particular system only, and over a part only of the road, the franchise was not involved, and there is, therefore, no basis on which an allowance can be estimated.”

In denying,the motion for this sole cause we think the Supreme Court erred. The subject-matter of the controversy litigated was the right of the defendant to use the single-trolley system in the operation of its road upon Broadway and South Ferry street, and the prayer for relief in the complaint is that an injunction issue “ restraining the defendant from operating its said railroad through the city of Albany by the electric system herein described.” If the right thus sought to be perpetually enjoined has a money value, and there was any evidence in the moving papers tending to establish such value, the court had jurisdiction to entertain the motion, and it was its duty to exercise its discretion and dispose of the application upon its merits. We have examined the record sufficiently to satisfy us that there was some proof of this character.

One witness testifies that the right of the defendant to run its cars by electric motors upon the single-trolley system in the city of Albany is worth to the company the sum of at least $300,000, and as against the double-trolley system, or any other known system, at least $76,000. We are not permitted to say how much this and ■ other similar evidence may be Worth. We are dealing exclusively with a question of power. Whether there shall be any allowance at all, or what the amount of it shall be, and how far the hardships of the plaintiff’s situation shall affect the allowance, if at all, are questions primarily to be considered by the Special Term and can be safely intrusted to its determination. The authorities cited in the opinion of the General Term were all cases where no

The order of the General Term granting a new trial ip.ust be reversed and the judgment entered upon the report of the referee affirmed, with costs in all courts.

The order denying the motion for an additional allowance should be reversed, with costs, and the motion remitted to the Supreme Court to be there heard upon its merits.

All concur.

Orders reversed and judgment affirmed.