Central Crosstown Railroad v. Metropolitan Street Railway Co.

16 A.D. 229

Opinions

Williams, J.:

The action was brought to restrain the defendant from constructing and operating a piece of street railroad about 200 feet long from the tracks used- by the defendant in West street, opposite Christopher street ferry, to the entrance to such ferry, and to compel the defendant to remove the tracks so far as it has constructed them. The relief sought was afforded by the decision and judgment made and entered. The decision was duly excepted to, and this appeal is taken from the judgment entered thereon.

The grounds of the decision were in brief: (1) That the. plaintiff had a franchise to construct and operate a railroad to the ferry, and its tracks were lawfully on the space in question ; (2) that the defendant had no franchise to construct or operate a railroad over the space in question; and (3) that the plaintiff would sustain special injury and damage by the construction and operation of such railroad by defendant.

There can be no doubt, of the correctness of the conclusion by the trial court as to the first ground. The plaintiff’s rights are based upon its ownership of the franchise granted by chapter 160, Laws of 1873, and its interest as lessee of the franchise owned by the Christopher and Tenth Street Railroad Company granted by * chapter 301, Laws of 1873. At the time these franchises were granted West street was seventy feet wide and the Christopher street ferry adjoined the westerly side of West street. In 1874 the ferry house was destroyed by fire, and thereafter a space 180 feet wide from the westerly side of West street at the foot of Christopher street was filled up and paved and a new ferry house was built at the westerly side of this space. The plaintiff and the Christopher and Tenth Street Railroad Company had built their roads described in their franchises in 1873 and 1874 before this; change of the ferry house site and the filling in of the intermediate-, space, and after such change had been made these companies-attempted to extend their lines to the entrance of the new ferry house. The Christopher and Tenth Street Railroad Company con- • structed 'its extension first, and when the plaintiff began to construct its extension actions were brought by the Christopher and Tenth Street Railroad Company, and by the Attorney-General, in the name of the People, to restrain plaintiff from constructing and operating its extension, and these actions resulted in decisions and judgments establishing the right of the plaintiff to build and oj>erateits extension under its franchise granted by chapter 160 of the Laws of 1873. The extension of this plaintiff was thereupon constructed,, and the two extensions have been operated ever since, the plaintiff having prior to the .commencement of the.present action leased from the Christopher and Tenth Street Railroad Company its franchise and tracks. We must at least adopt the legal principles determined in those cases and follow them, so. far as to hold that the plaintiff, at the time the defendant attempted to construct its extension in question, had a franchise under which its lines had been extended and were legally being operated over the space from the easterly side of West street to the entrance to Christopher street ferry. '

Indeed, the defendant does not seriously controvert this proposition, but claims that the same legal principles and considerations which determined plaintiff’s rights also establish defendant’s right to construct and operate its extension over the space in question. The franchise owned by the plaintiff gave the right to construct and operate its road “ through and along West street with double tracks to Christopher St., at the foot of Christopher street, North river. Returning — from the foot of Christopher street, North river; thence through and along Christopher street.” Aiid the decisions by the court in the cases above referred to were, based upon the ground that the franchise of the plaintiff, by its terms, authorized the company to construct and operate its road not only to. the foot of Christopher street, but to the North river, and it could not do that except by passing over the space in question to the ferry house, on the margin of the river. The defendant’s franchise, however, gave it the right to consti’uct and operate its road only along West street, and not to the North river. The defendant claims its right to, construct and operate its road over this space to the Christopher street ferry, ■solely by virtue of the provision of its franchise, “ with the privilege of laying all necessary sidings, turnouts, connections and switches for the proper working and accommodation of the said railroad, in any of the. above-mentioned streets, and of connecting with, running on or crossing all such other railroad tracks as may lie along or across any of said routes, streets or avenues.” (Laws of 1860, chap. 511.) Christopher street was not one of the streets mentioned in the franchise granted; and we fail to see how this clause in the franchise can be regarded as giving authority to construct and operate this piece of road in question, any more than it could be regarded as giving the right to construct and operate any other branch through any other street to connect the main line with any other ferry not lying upon the margin of the streets mentioned in the franchise. This piece of road can, by no proper construction of defendant’s franchise, be construed to be a siding or a turnout for the proper working and accommodation of the railroad in any of the streets therein named) or of connecting with or running on or crossing such other railroad tracks as might lie along or across any of said’ routes, streets or avenues; nor can it be said to be a connection or switch at all. The franchise of defendant did not extend to or include Christopher street at all, unless it might be to cross that street. The plaintiff’s franchise did ¡cover and include Christopher street, and permitted the plaintiff to construct and operate its road not only along that street but also to the North river. When the defendant’s franchise was granted in 1860 -no change of the ferry house at the foot of Christopher street was contemplated, and, therefore, the space filled in could not have been intended to be covered by or included in the franchise granted. When plaintiff’s franchise was granted in 18Í3, however, a change- was contemplated in the water front along West street, and the space in question might, therefore, be said to have been within the intention of the Legislature when it gave the right to construct and operate the road not only to the foot of Christopher street, but also to the North river. We do not overlook the consideration suggested by the defendant, that the evident purpose of the defendant’s franchise was to connect the ferries and to facilitate the communication between such ferries and other parts of the city, and that many of the ferries on the west side of the city were then adjacent to West street, that West street constituted a wharf or wharves of the city, and that it was no more the design ■in granting the plaintiff’s franchise to carry it to the North river as a terminal point, than it was the design in granting the defendant’s franchise to carry it along the North river adjacent to the ferries, as its general route, and that the same reasoning which extended plaintiff’s franchise across West street and over this space in question to the new ferry house as a terminal point, would also extend plaintiff’s franchise over this same space to enable it to reach the same ferry house, along past which, as it then existed, its franchise extended; and, therefore, the construction and operation of the piece of road in question should be considered as a siding, turnout, connection or switch, for the proper working and accommodation of the defendant’s road in West street, one of the streets mentioned in its franchise, within the clause of defendant’s franchises above quoted. These suggestions are not without a show of reason, but we think they should not be regarded as sufficient to establish defendant’s right under its franchise to construct and operate the piece of road in question.' By the express words of the plaintiff’s franchise it was to extend to the North river. No such express words are found in the defendant’s franchise. The decisions in the cases heretofore referred to were based mainly upon this express language. In the absence of those words it could hardly have been held that the plaintiff’s franchise extended across West street and over this space in question. We approve of those decisions upon this ground, but we are not willing to go further and hold that the clauses in these acts, conferring incidental rights and powers, such as we have quoted, are sufficient to cover and include the right claimed by defendant to construct and operate this piece of road in question. Its franchise was to construct and operate its road over and along West street. It could not have been within the design of. the Legislature to grant the right to extend the road along streets crossing West street, in either direction, whenever such street should be opened or created in the future, by filling in land and changing the water front, in the improvement of the city and its wharves and ferries.

The resolution by the dock department was, in express terms,, a. mere revocable license to construct this piece of road. It did not purport to grant any franchise. That department had no power to-do so.' It was merely a consent by that department, so far as consent might be necessary, but was wholly inadequate to confer any right or authority upon the defendant to construct or operate the-road, certainly as against the rights of the plaintiff. It could not-deprive the plaintiff of any rights it had in the street. We conclude,, therefore, that the trial court ivas correct in its second conclusion,, that the defendant had no franchise to construct or. operate its road over the space in question.

The remaining question is whether it appeared that the plaintiff suffered or would suffer such special damage from the construction and operation by the defendant of this piece of road as enabled it to-maintain this action to restrain such construction and operation. The unauthorized construction and operation .of a railroad in a public street is a public nuisance, but the creation or continuance of a. public nuisance is the infringement of a public right, and gives a. private person no right of action to abate such nuisance, unless its-creation or continuance invades his .private rights and causes him some special damage, as distinguished from the damage he suffers as one of the community at large. Ordinarily this question arises as. to a person who owns real property abutting on the street through which the railroad is - constructed and operated, but the question is-not materially different in a case like the present where the plaintiff is a railroad. company, and has property, not abutting on the street, but lying in the street itself. It is provided by section 102 of the Railroad Law (Laws of 1890, chap. 565, as amended by Laws of 1892, chap. 676), that “ no street surface railroad corporation shall construct, extend or operate its road or tracks in that portion of any street, avenue, road or highway in which a street surface railroad is or shall be lawfully constructed, except for necessary crossings, * * * without first obtaining the consent of the corporation owning and maintaining the same.”

The space in question was a street or highway. Plaintiff’s street railroad had been constructed and was being operated therein. Hence the defendant could not construct or operate its road therein, without plaintiff’s consent.

The plaintiff was thus placed in the same category practically as a property owner, having property abutting on the street, and could maintain an action to prevent the defendant doing an act which the statute had expressly provided it should not do, unless the plaintiff consented to the doing of it. In such a case, though it may be necessary to show that special injury and damage will be caused to the plaintiff, it is apparent that the nature or extent of such damages is not material. It need not be irreparable, and it was so held in The Forty-second Street, etc., R. R. Co. v. Thirty-fourth Street R. R. Co. (20 J. & S. [52 N. Y. Super.] 252), which was a case like the present, brought by one railroad company against another, and based upon the same section 102 of the Railroad Act. In that case the action was brought before the construction of the road had been commenced. Here the action was commenced, it is said, after the construction had been completed, but before the operation of the road had begun.

The damage to the plaintiff occasioned by the construction in the case cited, from the tearing up of the street and the putting down of the tracks, was apparent and was in the future, and was alone clearly ground for maintaining the action. It seems to us, however, that the operating of the road in the street in this case would be some damage to the plaintiff, some interruption of travel to and from the plaintiff’s cars, and that sufficient damage thus appears to enable plaintiff to maintain the action. But beyond this it was alleged in the complaint, and substantially admitted in the answer, and is apparent, that the defendant, through its system of transfers and connections, would in the operation of this piece of road come in direct competition with the plaintiff’s road over this space in question. And this would manifestly be a source of more or less damage to the plaintiff. It is true that the amount of such damage could not be ascertained ; there would be no basis for computation thereof, and, therefore, if the defendant should be permitted to. operate the road, the plaintiff’s damages would be irreparable, and plaintiff would have no .adequate remedy therefor. This-consideration is a sufficient reason for affording equitable relief by way of restraining the operation of the defendant’s road. ■ .

It seems to us the trial court was correct in its third conclusion, that the plaintiff was in a position to maintain the action.

The decision of the trial court was- correct, and the judgment should be affirmed, with costs. -

Van Brunt, P. J., and Patterson, J., concurred; Ingraham, J., dissented.