Thompson v. New York & Harlem Rail Road

3 Sand. Ch. 625

Opinion

The Assistant Vice-Chancellor.

All the defendants concur in making various objections to the complainant’s right to maintain this suit, and I will first examine those objections without stopping to inquire which of the defendants has omitted to pave the way for them in his answer.

First. It is said that John B. Coles reserved the bridge franchise in his conveyance to the trustees, in 1804.

The fact is clearly otherwise. The franchise reserved, was that of erecting and maintaining a dam, which the supreme court held, in the quo warranto case hereafter referred to, was entirely distinct from the erection of a bridge. And the whole object of the grant, was to convey the right to the bridge and the tolls.

' Second. In 1808, the legislature passed an act incorporating ■the then owners of the Harlem Bridge, and it is insisted that the corporation alone can file a bill in respect of the franchises in question. The burthen of establishing the acceptance of the charter is upon the defendants, and the proof falls far short of making it out. This is sufficient to dispose of the point, but if the testimony were much stronger to prove the acceptance of the charter, I think that the judgment in the suit of the People, would be decisive in the complainants favor. The People, on the relation of Thomas C. Taylor and others, in 1836 filed an information, alleging amongst other things, that these complainants were exercising the franchise of being a body politic and corporate by the name of the Harlem Bridge Company, having usurped the same, and calling on them to show by what warrant they claimed to use and exercise such franchise. In their plea to the information, the now complainants alleged that they never used the franchise of a corporation. Upon this, the Attorney General, in behalf of the people took judgment of preclusion. These proceedings, while they preclude the complainants and the state from setting up that the former are a body corporate, ought certainly to prevent strangers from insisting the contrary, in a case where the question arises collaterally.

Third. The next objection led to the taking of considerable testimony. It is, that the complainants, and those preceding them in the ownership of the bridge, never complied with the conditions and requirements which formed the consideration of the several acts of the legislature ; and that, if there were a sufficient compliance originally, they have forfeited their right to maintain their franchise, by neglecting for a long time to keep up the bridge and its appurtenances, pursuant to the terms of those acts.

The supreme court decided, in the quo warranto case before mentioned, that the act of 1795 modified the provisions of the act of 1790, in respect of the width of the Harlem Bridge, and that the privilege of erecting a dam, was an additional grants which John B. Coles might either exercise or omit, without affecting his right to build the bridge. The court therefore held, that Coles had complied with the conditions of the grant contained in the acts authorizing the bridge, by the erection of one only twenty-four feet wide, although it did not rest on a stone dam, or foundation. It appears that the opening for vessels and the draw over the same, were originally made of the size prescribed by the act of 1790, and that John B. Coles executed a bond, in conformity to the sixth section of the act of 1795.

I have no doubt, therefore, that the conditions annexed to the franchise in the acts granting the same, were substantially performed by Coles and his associates, and that they became duly invested with the rights and privileges conferred by those acts.

Before investigating the grounds upon which it is alleged that the owners of the bridge have forfeited their franchise, l am met with a preliminary inquiry. Can these defendants be permitted to set up such forfeiture in answer to this suit 1

Admitting for the sake of the argument, that the bridge as now maintained, is a public nuisance on account of its obstruction of the navigation, it is of no avail to the defendants, unless they can show that they are specially injured thereby. Now, it is not pretended that the closing of the opening and draw entirely, would affect the defendants at all. As a nuisance therefore, they are not in a position to complain of the bridge in a civil suit.

The ground taken by the defendants here, is not analogous to setting up, by way of defence to an action for tolls, by a turnpike or bridge company, that the turnpike or bridge is out of repair. Such a defence, while it shows that the company is not entitled to recover the tolls, does not interfere with the company’s title to its franchise; and in a suit for tolls subsequently due, a judgment against the company in a former suit, would not' prevent a recovery. The defendant would be compelled to prove a defence, as if no former suit had existed.

It cannot be shown in defence to the suit of a corporation, that the plaintiff’s have forfeited their corporate rights by misuser or by non-user.

Advantage can be taken of such forfeiture, only on process on behalf of the state, instituted directly against the corporation, for the purpose of avoiding the charter or act of incorporation; and individuals cannot avail themselves of it in collateral suits, until it be judicially declared. (Angell & Ames on Corporations, 507; 2d Ed., and the numerous cases there cited. Trustees of Vernon Society v. Hills, 6 Cowen, 23; Bank of Niagara v. Johnson, 8 Wend. 645.)

The grants to Lewis Morris and John B. Coles by the legislature, were as much a franchise as is the power to act as a body corporate; and must be forfeited judicially, before individuals can avail themselves of any misuser or omission to keep up their bridge in the manner prescribed by law. As to the nature of the grant, if any reference be necessary, see 3 Kent’s Comm. 458, and Thompson v. The People, (23 Wend. 579, 580, 596, per Verplanck, Senator.)

It is therefore foreign to this case, to examine the alleged omissions of the complainants to keep up their bridge, and the opening and draw in the same, in the manner required by the acts authorizing its erection.

Fourth. It is insisted by some of the defendants, that the complainants, if they have any remedy, are restricted to the action of debt given by the second section of the act of 1790, against the owners of any bridge or vessel interfering with the enjoyment of their franchise.

One answer to this is, that the owners of the obnoxious bridge being a body corporate, no suit could be maintained against them in a justice’s court at the time this cause was commenced.

The case of Livingston and Fulton v. Van Ingen and others, (9 Johns. 507, 562, 569, &c. 585, &c.) decides that the parties in possession of an exclusive right or privilege granted by a statute, are entitled to an injunction to restrain others from infringing that right, although the statute imposed various forfeitures on persons so offending.

This principle is sufficient to sustain the bill in its chief object, if the right claimed by it be found to exist in the complainants ; and as it may prove unnecessary to pursue the inquiry in respect of the claim made for an account, I will waive it for the present.

The other reasons assigned for the objection of want of equity ill the bill, will be examined hereafter, if there remain any necessity for looking into them, after disposing of the more important points in the cause.

Next, as to the right^of Lewis Morris, Gouverneur Morris and others, to erect the bridge which is the subject of complaint.

This is abundantly established by the grant in the Morrisania patents of 1676 and 1697, the express reservation in the act of 1790, authorizing the bridge of the complainants, and the statute passed May 15, 1837, enacting that the inhabitants of Morrisania might build a free bridge for their private use across the Harlem River, between Harlem and Morrisania.

Indeed, this right is not seriously disputed by the complainants, although they contend that the expensive bridge which was erected by the Morris’s, was really intended for the use to which it has been subsequently appropriated. As to this, without noticing its materiality, it suffices to say that whatever those gentlemen might have hoped, they could not have relied upon transferring it to the Harlem Rail Road Company, for that corporation was not then empowered to cross the Harlem River.

I have now come to the grave and very important question, presented by the pleadings, viz., the right of the Harlem Rail Road Company, to purchase the bridge built by the Messrs. Morris’s and to use it for the purposes of their railway.

The charter of this company, passed in 1831, authorized it to construct a rail road from Twenty-third street in the city of New York to the Harlem River, at any point between the Third and Eighth Avenues. (Laws of 1831, Ch. 263, p. 323.) The rail road was laid out upon the line of the Fourth Avenue, and prior to 1840, was finished and in active operation from the City Hall to the termination of the Fourth Avenue, at the southerly side of the Harlem River, directly at the point where the Morrisania bridge crossed the river.

In 1832, the New York and Albany Rail Road Company was incorporated, authorizing a railway from the city of New York (commencing where the Fourth Avenue terminates at the Harlem River,) to the city of Albany. (Laws of 1832, Ch. 162, p. 258.)

In 1836, this charter was amended, and the company empow ered to extend their rail road into the city oí New York ; but nothing in the act was to be so construed as to infringe such rights and privileges as the Harlem Bridge Company possessed by virtue of any statute. The act authorized the company to construct their road across any streams which it might intersect, except the Hudson River. (Laws of 1836, Ch. 268, p. 373.) The same power was conferred by the original act of incorpora-* tion in 1832.

On the 7th of May, 1840, an act was passed, which authorized the Harlem Rail Road Company to construct a rail road through the county of Westchester, commencing at the Harlem River, and extending northwardly to meet the New York and Albany Rail Road Company, with a branch to the line of the state of Connecticut. The act authorized the Harlem Rail Road Company to construct a bridge across Harlem River, in order to connect their road as then built, with the extension permitted by that act. The second section provided that the company should possess all the powers, and be subject to all the restrictions, that are contained in the several acts authorizing the construction of The New York and Albany Rail Road Company, and prohibited them from using any part of the road of the Westchester Turnpike Company, except upon making compensation. (Laws of 1840, Ch. 242, p. 190.) Aside from the principal question involved, it is contended that inasmuch as the inhabitants of Morrisania could build a bridge for no other purpose than for their exclusive private use, they could not erect one for sale: No purchaser could acquire a right to appropriate the bridge when built, to any other use than that of those inhabitants : Therefore the Harlem Rail Road Company have acquired no title to the bridge by their purchase from the Morris’s, and have no right to use it or to suffer it to be used, for any purpose except the private use of the inhabitants of Morrisania.

This argument might be indisputable if it were applied to an ordinary purchaser, or to a corporation having no authority to carry a rail road over the Harlem River. But these defendants were expressly authorized to cross the river with their railway in order to connect it as then built, with the Westchester extension.

They were also empowered to purchase any lands or real estate, which were necessary for the construction of their road, and if the owners were unwilling to sell, the company could take such lands, on making compensation in the mode pointed out fey the charter.

The bridge of the Morris’s stood at the very spot where the defendants were required by the act of 1840, to cross the river to continue their rail road. Its materials and superstructure were the private property of the Morris’s, although subject to the private use of the other inhabitants of Morrisania. The company had an undoubted right to take the bridge, whether the Morris’s were willing or not, on making to them compensation for its value, and making a suitable provision for the use of it by them and the other inhabitants entitled to its benefit. Under these circumstances, it appears to me that nothing can be plainer than that the company had a perfect right to buy the bridge for' the use of their rail road.

So far as the navigation of the river was concerned, it was far better for the public interest that there should be but one bridge, for the use of both the rail road and the inhabitants of Morrisania; and in respect of the complainants, it was no worse for them, but rather the contrary, because the use of the bridge by the railroad, would unavoidably interfere with its free and unrestricted use by the ordinary travel of the country.

The complainants insist further, that the act of 1840, authorizing the Harlem Rail Road Company to build a bridge across the river, is a violation of the franchise vested in them, and as against them, is entirely nugatory. They do not deny the power of the legislature to authorize the company to build such a bridge, but they contend that the legislature itself could authorize it, only upon making proper compensation to them for the consequent injury to their franchise.

These positions were very ably and earnestly argued by the learned counsel for the complainants; but in the present state of the law on the subject, as established in this court, it would be quite superfluous for me to enter into an elaborate discussion of the momentous principles involved in its consideration, or to examine critically the force, extent and authority of the leading case relied on by the defendants. (Charles River Bridge v. Warren Bridge, 11 Peters, 420.)

In The Mohawk Bridge Company v. The Utica and Schenectady Rail Road Company, (6 Paige, 554,) the complainant’s charter prohibited others from establishing a ferry within one mile from their toll bridge. The defendants were authorized to construct a railway from Schenectady to Utica, which gave them the right to build a bridge across the Mohawk River for the passage of their engines and cars, and they commenced building it about a hundred rods distant from the plaintiff’s bridge. The latter thereupon applied for an injunction, alleging amongst other grounds, that the rail road would divert the travel from their toll bridge, and thus interfere injuriously with the exclusive privilege secured to them by their charter. The chancellor declared his opinion, that the charter of the Mohawk Bridge Company did not deprive a future legislature of the right to authorize the erection of another bridge within the prescribed limits, whenever the public good should appear to require it; much less was the legislature deprived of the power to provide for the conveyance of freight or passengers from one part of the state to another, by an improvement which was entirely unknown at the time when the grant to the bridge company was made. And if that grant had in terms, given to the corporation the exclusive right of erecting a toll bridge across the river at Schenectady, this subsequent grant to the rail road company to cross the river with their railway from Schenectady to Utica, and to transport passengers thereon in the course of their business in the conveyance of travellers from one place to another, would not have been an infringement of the privileges conferred by such prior grant; as the rail road bridge would not be a toll bridge, within the intent and meaning of the grant to the first company. The motion for the injunction was denied on another ground, but it is evident that the chancellor would have denied it for the reasons just stated, if no other had existed.

More recently, in the case of The Oswego Falls Bridge Co. v. Fish and others, decided May 25th, 1846,

Footnotes

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(a) the bill was filed to restrain the defendants from erecting a free bridge across the Oswego River, between the falls and the north line of the village of Fulton, which they were authorized to do as commissioners, by an act of the legislature passed in 1838. (Laws of 1838, Chapt. 254, p. 240.)- The complainants toll bridge across the Oswego River, terminated about the centre of the village of Fulton, and the defendants had laid out the free bridge so that it would terminate within the village, near to the toll bridge. The act authorized the commissioners to purchase and repair the Oswego Falls bridge, instead of building a new bridge, if in their opinion, the public interest would be best promoted thereby. The charter of the Oswego Falls Bridge Company, (Laws of 1824, ch. 293, p. 351.) authorized them to erect a bridge over the Oswego River, and to receive tolls in the usual manner. Vice Chancellor Gridley of the fifth circuit, dismissed the bill. The complainants appealed, and the chancellor affirmed the decree. In his decision, he says, “ The only question, therefore, is whether the legislature had the right to authorize the erection of a free bridge across the Oswego River, so near to the bridge which the complainants had erected under their charter, as- to diminish their tolls and materially impair the profits of the company. I had occasion to consider the power of the legislature in this respect, incidentally, in the case of The Mohawk Bridge Co. v. The Utica and Schenectady R. R. Co., (6 Paige’s Rep. 554,) and I then came to the conclusion that the grant to a corporation to erect a toll bridge across a river, without any restriction of the power of the legislature to grant a similar privilege to others, would not deprive a future legislature of the power to authorize the erection of another bridge, which would divert a portion, of the travel from the bridge which had been previously erected. Since that decision, we have been furnished with the reported case of the Charles River Bridge Co. v. The Proprietors of the Warren Bridge, (11 Peter’s R. 420,) decided by the supreme court of the United States, a few months before. That case cannot be distinguished in principle from the present; and as the question was fully considered there, in the very able opinion of Chief Justice Taney, who delivered the judgment of the court, it would be useless to go over the same ground.” The same point apparently, was decided by the Chancellor, in the case of Meads, Receiver &c. v. Wardell, April 2, 1844, (4th Barbour’s Notes of Chancellor’s Decisions, p. 14,) where the exclusive right was set up in respect of a ferry.

The second section of the act of 1790 for building the Harlem bridge, provides,¿that it shall not be lawful for any person or persons whatsoever, to erect any other bridge over or across the Harlem River to Morrisania, or to keep any vessel to ferry any person across the river from Morrisania to Harlem, except for the private use of the inhabitants of those townships. And the complainants insist, (to repeat their point,) that this is a grant and covenant on the part of the legislature, that it will not permit any person except those inhabitants, to erect any bridge or ferry, and those could erect one for their private use only. That the grant was by its terms exclusive, and if it were not so expressed, the grant of tolls necessarily excluded all competition which would diminish the tolls; and it was not in the power of the legislature, afterwards to make a grant which would impair the full enjoyment of the franchise conferred on the bridge, and any such grant would be void under the constitution of the United States, as impairing the obligation of the contract made by the state with the Harlem Bridge Company.

As to these positions of the complainants, the Charles River Bridge case, with that of the Stourbridge Canal Company v. Whaley, (2 Barn. & Ad. 792,) is decisive against any implication of an exclusive right, when the charter is silent on the subject ; and the decisions of the chancellor to which I have referred, appear to me to be equally conclusive against any restriction of the power of the legislature to charter a new toll bridge, or to authorize a free bridge, in competition with that allowed across the Harlem River by the act of 1790. Other cases to the same effect, will be noticed hereafter. The act of 1790 does not declare that the legislature will not permit another bridge to be erected. Indeed, the declaration inserted in the second section, •was evidently aimed at the rights which it was supposed the inhabitants of Morrisania and Harlem might claim under their old patents, rather than against any interference by others with the franchise granted to the bridge company. As to all persons, other than the inhabitants of Morrisania and Harlem, such a provision was wholly unnecessary, because no one could set up a toll bridge or ferry, without authority from the state.

The case of The Newburgh Turnpike Co. v. Miller, (5 J. C. R. 101,) cited by the complainants, does not conflict with these views. There, individuals without the sanction of law, laid out a road and built a bridge, the manifest effect of which was to enable travellers to evade the complainants bridge and toll gate; and the chancellor restrained them by injunction.

It was argued on the part of the defendants, that the rail road bridge, used merely for its appropriate purpose of passing their locomotive engines and trains of cars across the Harlem River, on their way from the city of New York to their various stopping places in Westchester county; does not violate, infringe, or _ interfere with, the franchise granted to the Harlem Bridge Company by the act of 1790. There is undoubtedly much force in this argument. The rail road bridge, as such, is incapable of being used for the passage of any vehicle, animal, or foot passenger, for whose passage the complainants are entitled to receive toll. The fact that the rail road bridge, as built for the private use of the inhabitants of Morrisania, may be crossed by such vehicles, &c., does not affect the consideration of this point.

On the other hand, the complainants bridge has not the capacity to pass over the Harlem River, any of the Rail Road Company's -.engines, or their trains or cars drawn by such engines. And if the .complainants were to lay down a suitable railway track, and strengthen their bridge so that the engines and trains ,of the defendants might cross it, there is nothing in their charter which would warrant them in exacting toll from the defendants, (Stourbridge Canal Co. v. Whaley, above cited.) This demonstrates that the franchise granted to the defendants, is not the same as .that vested in the complainants; nor is there such a similarity between them as renders the one an interference with the other, in .the .sense in which a new bridge or a ferry interferes with a prior one established at ,the same point.

The influence of the rail road on .the complainants profits from £heir bridge, is more analogous to that which has been effected in respect of many branches of business, bv the astonishing ini- i provements of the last thirty years. The Erie canal broke up and destroyed the long lines of heavy teams which formerly monopolized the transportation west of Albany ; and diminished more than one-half, the profits of the turnpike companies between Albany and Canandaigua. The line of rail roads which succeeded, drove from the road the throng of stage coaches, which were profitably employed in the conveyance of passengers to and from the great west. Yet neither the army of teamsters thrown out of business, nor the turnpike corporations, ever claimed compensation from the state in respect of the Erie canal; nor did the stage owners claim redress against the rail road companies, which destroyed their business, and diminished one-half, the value of their capital. If it be answered, that most of these were mere individuals, or the enterprises of men associated together, and not basking in the sunshine of legislative privilege ; I reply, that the turnpike companies were corporations, and that the others invested capital in a business, quasi public, and acquired a -valuable good will in their pursuits, with as much claim on the favor and protection of the state, as the builders of the Harlem bridge; with this difference only, that the latter had no right to set up their bridge without the permission of the state, wh le the pursuits of the former were open to all.

If then the progressive spirit of the age, have developed and matured a mode of conveying passengers and freights, from place to place, across rivers and over morasses, which was unknown in 1790; can there be any doubt that the legislature, in the exercise of its sovereign duty to provide ways for the use of the people, may authorize the construction and use of such new invention, although the necessary consequence may be, that the prior modes of conveyance will be superseded, and those who were profitably engaged in their pursuit, will be subjected to the loss of their business and capital 1 I think the right and the duty of the legislature in such a case, is too clear to be questioned ; and that those who were enjoying franchises previously conferred, which are thereby rendered worthless, stand in no worse position and are no more entitled to sympathy or compensation, than the numerous classes of mechanics and other individuals,1 who are daily subjected to great losses and sacrifices, by new I inventions and improvements, superseding and destroying those in profitable use.

An analogous case in our own courts is that of Lansing v. Smith and others, (8 Cowen, 146, affirmed in 4 Wend. 9,) where the wharves of the owners of lots in the city of Albany, were rendered almost valueless, by the erection of the Albany pier, under an act of the legislature.

Previous to the decision of the Charles River Bridge case, the supreme court of New Hampshire held that the grant of a ferry, did not prevent the legislature from granting to another person, the exclusive right of erecting a toll bridge within certain limits, which included the place where the ferry was situated. And the court expressed their opinion, that were there no terms of exclusion in the grant of the bridge, another bridge might be authorized within the same limits. There being an exclusive grant of the bridge in that case, the court decided that the legislature could not authorize the erection of another bridge, without provision for the compensation of the first grantee. (Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. Rep. 35, 59.)

And the supreme court of Alabama had held in 1835, that the grant of a ferry, where it was not exclusive, did not prevent the legislature from chartering a toll bridge near the ferry, without making any provision for compensation to the owner of the ferry. (Dyer v. Tuscaloosa Bridge Company, 2 Porter’s R. 296.)

Subsequent to the case of Charles River Bridge, the court of appeals in Virginia, unanimously held that a monopoly cannot be implied, from the grant to construct a work of public improvement and to take the profits; to give such monopoly, there must be an express provision in the act or charter, whereby the legislature restrains itself from granting charters for rival and competing works. And the court applied the doctrine in a suit by a canal company, against a company subsequently chartered to construct a rail road along the same valley. (Tuckahoe Canal Company v. Tuckahoe Rail Road Company, 11 Leigh’s R. 42, 69, 73.)

Such being the established law on the subject, I must, on both grounds, decide against granting to the complainants any relief founded upon the assumption that the Harlem Rail Road Company have no right to maintain the bridge in question across the Harlem River, for the use of their rail road.

There remains another, though very inferior ground of relief set up in the bill, which is reposed on the alleged misuser of the bridge by the defendants, by permitting, or by their negligence suffering, persons who had no right, to pass over the bridge, and thereby evade the payment of the tolls to which the complainants were entitled.

. I do not think that there can be any account, in connection with this injury alone. There is no pretence that the defendants have received any ¡money from persons who have evaded the toll bridge. They have no right to receive compensation for crossing the rail road bridge, and they have not claimed any such right.

The injury to the complainants, is one in the nature of damages. The remedy provided by the second section of the act of 1790, gives a penalty which a court of equity will not enforce; and they can have no redress here, except as incidental to some other relief which this court has jurisdiction to grant. Still if it shall appear that they are entitled to an injunction on this branch of their case, it will then be proper to direct an account of what they might have received in tolls, but for the acts or omissions of the defendants.

As to the remedy by injunction, 1 am satisfied that the unauthorized use of the rail road bridge alleged in the bill, constitutes such a nuisance to the complainants in the enjoyment of their franchise, that they are entitled to an injunction to restrain it in future.

The rightful use of the bridge, is restricted by law to the purposes of the rail road, and the private use of the inhabitants of Morrisania. The act of 1837 permitting its erection, provided that it should be used in conformity with the right reserved to those inhabitants in the act of 1790, granting the complainants bridge, and not otherwise. Thus there was attached to the private bridge, the reasonable condition, that those erecting and maintaining it should so keep and, use it, that it should not interfere with the rights and privileges vested in the owners of the toll bridge.

If it be made to appear that the owners of the Morrisania bridge, have failed so to keep and preserve the same from being used by persons not authorized to use it; the difficulties in the way of ascertaining and proving every case, or even a considerable portion of the instances, of such improper use of the bridge and the great facility for evading the complainants bridge, and the excessive injury to their franchise which such carelessness of the owners of the other bridge may occasion ; furnish abundant grounds for this court to restrain the owners by injunction. The complainants right being undisputed, the case falls within the ordinary jurisdiction of the court against nuisances.

I have looked into the testimony relating to the use of the rail road bridge by persons not authorized, and am satisfied that the rail road company have not exercised that diligence to prevent such persons crossing their bridge, which they were bound to do in reference to the complainants franchise. By their purchase of a bridge already built, adapted to the ordinary travel of the country, they became liable to this duty, which before was incumbent on those who erected it. If they had built a bridge for the use of their rail road only, it would have had no floor or proper conveniences for ordinary travel, and they would not have been subjected to this burthen.

There is nothing in the case however, to implicate the Morris’s in this disregard of the complainants rights. Their erection of the bridge, and their sale of it was lawful; and in the conveyance to the rail road company, they stipulated for no other or further use of the bridge for ordinary travel, than they were entitled to while they owned it.

And the testimony does not prove that during the time they owned and controlled the bridge, there was any use made of it to the complainants detriment, or that they were negligent in preventing unauthorized persons from travelling over it.

The complainants having failed to establish any ground of relief against the Messrs, Morris’s, the bill as to them must be dismissed with costs.

As to the Harlem Rail Road Company, the complainants appear to be entitled to an injunction, restraining the company during the residue of the term of the complainants franchise, from permitting or suffering the bridge in question to be used for the passage of any vehicles, foot passengers or animals, for the passage of which over their bridge the complainants are authorized to demand toll; or for any purpose, save the use of the company’s rail road, and the private use of the inhabitants of Morrisania.

The details of the injunction will be adjusted on settling the decree; and the complainants may have liberty to apply on the foot of the decree, for future relief in case the injunction be violated.

I will also dispose of the question of costs between these parties, to this time, by directing that neither party shall recover costs against the other. The complainants have shown a case for relief, though they have failed in the principal object of their suit.

They are entitled also to a reference, to ascertain what tolls they have lost since the rail road bridge was conveyed to the company, in consequence of the neglect or omission of the company to prevent its use by persons who were not authorized to make use of it without paying toll to the complainants. But I doubt whether this right to a reference, will pay the expense of its prosecution ; and I will direct that if the complainants take a reference and fail to make out a demand exceeding $100, they shall pay the rail road company’s costs of the reference and proceedings thereon. If they make out more than $100, the company will be decreed to pay the amount to them, with the costs, subsequent to the entry of the decree.

Now reported in 1 Barb. Ch. R. 547.