New York City & Northern Railroad v. Central Union Telegraph Co.

New York Supreme Court

New York City & Northern Railroad v. Central Union Telegraph Co.

28 N.Y. Sup. Ct. 261

DecidedMay 15, 1880

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This text of 28 N.Y. Sup. Ct. 261 (New York City & Northern Railroad v. Central Union Telegraph Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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New York City & Northern Railroad v. Central Union Telegraph Co., 28 N.Y. Sup. Ct. 261 (N.Y. Super. Ct. 1880).

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Opinion

Gilbert, J.:

The power granted to the defendant is to “ erect and construct from time to time fixtures for lines of telegraph, upon, over or under any of the public roads, streets and highways, and upon, through or over any other land.” (Laws of 1853, ch. 471, § 2.) No doubt the Legislature may supplant one public use by another. Put the delegation of such a power must be made in express terms or arise by necessary implication. It cannot be implied from a general power to appropriate or to use land generally. Statutes which delegate the power of eminent domain, are not to be extended by inference or implication. (Rensselaer & Saratoga R. Co. v. Davis, 43 N. Y., 146 ; In re Boston & Albany R. R. Co., 53 Id., 574; In re Rochester Water Commissioners, 66 Id., 413 ; In re Buffalo, 68 Id., 167; In re New York & Brighton Beach R. Co., decided at the last term of this court, '20 Hun, 201.) We think that the plaintiff has not been vested with the power to interfere with the use by the defendant of its roadway. The phrase “ public roads,” certainly does not embrace railroads outside of streets or highways. Whatever it may signify, it is an inappropriate expression to designate a thing, so long and commonly known by another name, as a railroad. If the Legislature had intended to authorize the use of railroads, they would have said aso in plain language, and they would have prescribed the mode of the joint use, so as not to endanger the safety of the operation of the railroad, as they have been careful to do in analogous cases. (Laws of 1850, ch. 140, § 28, subd. 6.)

[265]*265An injunction is the proper remedy in a case of this kind.

The order appealed from must be reversed, and the motion to continue the injunction must be granted, with $10 costs and disbursements.

Pratt, J., concurred; Barnard, P. J., not sitting.

Order reversed, with costs and disbursements.

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Gilbert, J.:

The power granted to the defendant is to “ erect and construct from time to time fixtures for lines of telegraph, upon, over or under any of the public roads, streets and highways, and upon, through or over any other land.” (Laws of 1853, ch. 471, § 2.) No doubt the Legislature may supplant one public use by another. Put the delegation of such a power must be made in express terms or arise by necessary implication. It cannot be implied from a general power to appropriate or to use land generally. Statutes which delegate the power of eminent domain, are not to be extended by inference or implication. (Rensselaer & Saratoga R. Co. v. Davis, 43 N. Y., 146 ; In re Boston & Albany R. R. Co., 53 Id., 574; In re Rochester Water Commissioners, 66 Id., 413 ; In re Buffalo, 68 Id., 167; In re New York & Brighton Beach R. Co., decided at the last term of this court, '20 Hun, 201.) We think that the plaintiff has not been vested with the power to interfere with the use by the defendant of its roadway. The phrase “ public roads,” certainly does not embrace railroads outside of streets or highways. Whatever it may signify, it is an inappropriate expression to designate a thing, so long and commonly known by another name, as a railroad. If the Legislature had intended to authorize the use of railroads, they would have said aso in plain language, and they would have prescribed the mode of the joint use, so as not to endanger the safety of the operation of the railroad, as they have been careful to do in analogous cases. (Laws of 1850, ch. 140, § 28, subd. 6.)

[265]*265An injunction is the proper remedy in a case of this kind.

The order appealed from must be reversed, and the motion to continue the injunction must be granted, with $10 costs and disbursements.

Pratt, J., concurred; Barnard, P. J., not sitting.

Order reversed, with costs and disbursements.

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28 N.Y. Sup. Ct. 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-city-northern-railroad-v-central-union-telegraph-co-nysupct-1880.

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