Wetmore v. Story
This text of 3 Abb. Pr. 262 (Wetmore v. Story) 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.
Opinion
Cowles, J.
The resolutions conferring the grant on which defendants rely, first passed the board of aldermen November 22, 1852; were amended and passed the board of assistants December 6,1852; were sent to the board of aldermen, and the amendments there concurred in, January 5, 1853; were •vetoed and returned by the mayor to the board of aldermen .January 12,1853; were taken up and passed by the aldermen, .notwithstanding the veto, on the 14th November, 1853, and, •soon after, were again passed by the board of assistants.
Intermediate December 6, 1852, and January 5, 1853, the term for which the board of assistants were elected, expired; and it is objected that thereupon the session of the common council closed, and it was not competent, afterwards, for the members of the new board to take up the unfinished business of their predecessors.
This view of the case supposes the existence of what might be termed the annual sessions of the common council, and .assumes it to be unlawful for one session to take up and complete the unfinished business of the preceding one.
An analogous practice has prevailed in the British Parliament from an early period; a similar one, evidently copied from that, has been adopted by our national and State legislatures. The unfinished business of one parliament is never taken up by the succeeding one; nor that of one congress by the next; nor that of one session of the legislature by the one which follows. No public statute inhibits it in either case, but long usage has given it the force and effect of law.
It is insisted that a similar rule should govern the common council of this city.
There is, undoubtedly, some analogy between the organization of the two boards of our common council and the two houses of the national and State legislatures. But their practice in this respect has not been the same. The common council, like the board of trustees of any private corporation, or like the boards of supervisors of the several counties, has regarded itself as one continuous body, notwithstanding any changes in its several members.
Prior to 1830, there was but one board, the aldermen and assistants uniting and sitting together to form it. Changes of [265]*265members, caused by expiration of terms of service, were not noticed.
In 1830, it was divided into two boards; but its practice in this respect remained unchanged: and this, after the subject, on two several occasions, had been formally called to its notice. (Proceedings of Board of Assistants, 38, Doc. 7,126; also Doc. Board of Aldermen, 21, part 1. 459.)
By these references it will be seen that unfinished business of importance, involving matters of both public and private interests, after being partially acted upon, has been taken up by a board of new members, where it was left by the old one, and finished.
In the absence of any statutory provisions on this subject, and with the practice which seems to have uniformly prevailed, I think the common council must be regarded as a continuous body, unaffected by the periodical changes of membership, and that its uniform usage, in this respect, has given it the force of law. Interests of great magnitude depend upon its practice in this subject being upheld, which should not be pronounced illegal, unless for most satisfactory and controlling reasons, which, in this case, do not appear to exist.
The plaintiff now appealed from the decision, dissolving the injunction. We give only so much of the argument upon the appeal as relates to the question of the proper mode of passing acts of the Common Council.
Samuel Beardseley and John Van Burén for appellants, contended that the resolution relied on had not been duly passed. (Laws of 1830, 127, §§ 12-14; Laws of 1849, 279, § 6; Const. 1822, Art. 1, § 12; Const. 1846, Art. 4, § 9; 77. 8. Const., Art. 1, § 7, subd. 2, 3).
Charles O'Conor, for respondents.—It is objected that the Common Council proceeded irregularly in the adoption of these resolutions. The aldermen hold for two years, the members of the second house in the municipal legislature hold for one year only. This resolution was adopted by the aldermen in 1852, amended and returned to that body by the assistants of that year; and early in January, 1853, after the assistants [266]*266of 1852 had gone out of office, the aldermen concurred in the amendment, and sent the resolution to the Mayor for his approval. He vetoed the measure in January, 1853 ; and in November of that year, both boards reconsidered and adopted the resolution, notwithstanding the veto.
On these facts, it is urged that on the termination of the assistant’s year, all business on which they had acted, and which had not received the assent of the aldermen,- fell through or became discontinued; and, consequently, that all corporate measures partially matured require to their legality a new commencement in January of each year.
The objection is founded upon a supposition that the practice of the British parliament and of our legislatures in conducting business, adopted for their own convenience, constitutes a rule of law binding on them ; and that there is an analogy between those bodies and the common council of New York which makes such practice a controlling guide to the latter.
We deny that those practices are law to the bodies which established them. Like other rules, they may be departed from. We also deny the analogy.
The municipal legislature is inferior and subordinate; its duties lie within, comparatively, a very narrow compass. Its members do not come together from remote and distant points, represent interests materially diverse and conflicting, or bring with them different capacities for action arising from circumstances connected with far-separated constituencies. In all these respects, the common council differs from parliament, congress, and the State legislature. The courts have sanctioned the idea that whatever changes take place in their members, these domestic forums are continuous. In Coles v. The Trustees of Williamsburgh, (10 Wend., 659), the point was so ruled. A statute required, as an indispensable preliminary to the opening of a street by the village council, that a petition, of a prescribed kind, should be presented to them. Such a petition was presented and acted on, but ineffectually. A new board took it up and adopted the measure. The court say, “ The petition presented to their predecessor's was sufficient authority for them to direct the street to be opened.”
[267]*267The separation of the New York corporate body, by forming executive and legislative branches, and by dividing the latter into two chambers, originated in the amended charter of 1830. (Laws of 1830, 125). This technical question was first raised after the lapse of twenty years. The law-committee of the board of aldermen, to whom it was referred, deemed the boards continuous, and not altered or varied in any respect by alterations in their members. They say that this doctrine “ has been practiced since 1831, and is an established custom of the two boards.” (Doc. No. 29, Board of Aldermen, 1854).
The question had been already examined with a like result by the counsel of the corporation. (38 Proceedings of Board of Assistants, 126. Supervisors of Chenango
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Cowles, J.
The resolutions conferring the grant on which defendants rely, first passed the board of aldermen November 22, 1852; were amended and passed the board of assistants December 6,1852; were sent to the board of aldermen, and the amendments there concurred in, January 5, 1853; were •vetoed and returned by the mayor to the board of aldermen .January 12,1853; were taken up and passed by the aldermen, .notwithstanding the veto, on the 14th November, 1853, and, •soon after, were again passed by the board of assistants.
Intermediate December 6, 1852, and January 5, 1853, the term for which the board of assistants were elected, expired; and it is objected that thereupon the session of the common council closed, and it was not competent, afterwards, for the members of the new board to take up the unfinished business of their predecessors.
This view of the case supposes the existence of what might be termed the annual sessions of the common council, and .assumes it to be unlawful for one session to take up and complete the unfinished business of the preceding one.
An analogous practice has prevailed in the British Parliament from an early period; a similar one, evidently copied from that, has been adopted by our national and State legislatures. The unfinished business of one parliament is never taken up by the succeeding one; nor that of one congress by the next; nor that of one session of the legislature by the one which follows. No public statute inhibits it in either case, but long usage has given it the force and effect of law.
It is insisted that a similar rule should govern the common council of this city.
There is, undoubtedly, some analogy between the organization of the two boards of our common council and the two houses of the national and State legislatures. But their practice in this respect has not been the same. The common council, like the board of trustees of any private corporation, or like the boards of supervisors of the several counties, has regarded itself as one continuous body, notwithstanding any changes in its several members.
Prior to 1830, there was but one board, the aldermen and assistants uniting and sitting together to form it. Changes of [265]*265members, caused by expiration of terms of service, were not noticed.
In 1830, it was divided into two boards; but its practice in this respect remained unchanged: and this, after the subject, on two several occasions, had been formally called to its notice. (Proceedings of Board of Assistants, 38, Doc. 7,126; also Doc. Board of Aldermen, 21, part 1. 459.)
By these references it will be seen that unfinished business of importance, involving matters of both public and private interests, after being partially acted upon, has been taken up by a board of new members, where it was left by the old one, and finished.
In the absence of any statutory provisions on this subject, and with the practice which seems to have uniformly prevailed, I think the common council must be regarded as a continuous body, unaffected by the periodical changes of membership, and that its uniform usage, in this respect, has given it the force of law. Interests of great magnitude depend upon its practice in this subject being upheld, which should not be pronounced illegal, unless for most satisfactory and controlling reasons, which, in this case, do not appear to exist.
The plaintiff now appealed from the decision, dissolving the injunction. We give only so much of the argument upon the appeal as relates to the question of the proper mode of passing acts of the Common Council.
Samuel Beardseley and John Van Burén for appellants, contended that the resolution relied on had not been duly passed. (Laws of 1830, 127, §§ 12-14; Laws of 1849, 279, § 6; Const. 1822, Art. 1, § 12; Const. 1846, Art. 4, § 9; 77. 8. Const., Art. 1, § 7, subd. 2, 3).
Charles O'Conor, for respondents.—It is objected that the Common Council proceeded irregularly in the adoption of these resolutions. The aldermen hold for two years, the members of the second house in the municipal legislature hold for one year only. This resolution was adopted by the aldermen in 1852, amended and returned to that body by the assistants of that year; and early in January, 1853, after the assistants [266]*266of 1852 had gone out of office, the aldermen concurred in the amendment, and sent the resolution to the Mayor for his approval. He vetoed the measure in January, 1853 ; and in November of that year, both boards reconsidered and adopted the resolution, notwithstanding the veto.
On these facts, it is urged that on the termination of the assistant’s year, all business on which they had acted, and which had not received the assent of the aldermen,- fell through or became discontinued; and, consequently, that all corporate measures partially matured require to their legality a new commencement in January of each year.
The objection is founded upon a supposition that the practice of the British parliament and of our legislatures in conducting business, adopted for their own convenience, constitutes a rule of law binding on them ; and that there is an analogy between those bodies and the common council of New York which makes such practice a controlling guide to the latter.
We deny that those practices are law to the bodies which established them. Like other rules, they may be departed from. We also deny the analogy.
The municipal legislature is inferior and subordinate; its duties lie within, comparatively, a very narrow compass. Its members do not come together from remote and distant points, represent interests materially diverse and conflicting, or bring with them different capacities for action arising from circumstances connected with far-separated constituencies. In all these respects, the common council differs from parliament, congress, and the State legislature. The courts have sanctioned the idea that whatever changes take place in their members, these domestic forums are continuous. In Coles v. The Trustees of Williamsburgh, (10 Wend., 659), the point was so ruled. A statute required, as an indispensable preliminary to the opening of a street by the village council, that a petition, of a prescribed kind, should be presented to them. Such a petition was presented and acted on, but ineffectually. A new board took it up and adopted the measure. The court say, “ The petition presented to their predecessor's was sufficient authority for them to direct the street to be opened.”
[267]*267The separation of the New York corporate body, by forming executive and legislative branches, and by dividing the latter into two chambers, originated in the amended charter of 1830. (Laws of 1830, 125). This technical question was first raised after the lapse of twenty years. The law-committee of the board of aldermen, to whom it was referred, deemed the boards continuous, and not altered or varied in any respect by alterations in their members. They say that this doctrine “ has been practiced since 1831, and is an established custom of the two boards.” (Doc. No. 29, Board of Aldermen, 1854).
The question had been already examined with a like result by the counsel of the corporation. (38 Proceedings of Board of Assistants, 126. Supervisors of Chenango v. Birdsall, 4 Wend., 453-460).
After twenty-five years acquiescence, and numerous rights probably acquired in good faith on this construction, it would not be very judicious to disturb it. (25 Wend., 11).
But let us see how far the analogy contended for exists. The parliament of Great Britain was not originally a continuous body in point of fact. On the contrary, each parliament was convened by the crown, not only by special summons, but for a special occasion, as an advisory body. Its-constitution was consequently regarded as being special, and its authority as being limited to the special purpose of the call. This appears from the ancient doctrine that the signing of a single act by the king worked vpso facto a dissolution of parliament. The negative of this was not established until as late as 1620. (2 Hatsell’s Precedents, 328, 3 ed.; 4 Inst., 28 ; 5 Comyn’s Dig. tit., Parliament, Q., 312. See Act of 16 Car. 1, ch., 4; Stats, at L., 131).
Parliament was regarded by the king, and, of course, by the judges of his appointment, not as an established institution, but as an occasional resort. Continuity did not belong to it. It was “ a parliament,” and not “ the parliament,” that was formed on each royal summons. Popular liberty has in this, as in most matters of substance, at length triumphed over prerogative. Annual sessions are now the settled usage ; and, as the expression is, “ annual parliaments” have become a part [268]*268of the constitution of England; yet the original intendment prevails in all the practical forms. Each session is still treated as a distinct parliament; it is convened by the king’s special summons, and cannot assemble otherwise. (Dwarris on Statutes, 69). As a consequence, all legislative business not completed at the close of a session, is absolutely discontinued and falls to the ground. (Dwarris on Statutes, 257. 4 Inst. 27.)
The Upper House is a permanent body, and the Commons are elected octennially; consequently, there is no longer reason or propriety in the common phrase “ annual parliaments,” or in the notion that business must be discontinued by the mere close of a session. They both arise from that subserviency to established forms so common in England. Our congress has repudiated both. Rule 19 of the House provides that all-business left unfinished, at the close of the first session, may be resumed and carried forward at the second. (Jefferson's Manual, 138).
It appears that parliament itself has treated the doctrine of discontinuance as a convenient fiction, for it is disregarded whenever public convenience requires.
The final appeal at law and in- equity is not to the Lords merely, but to the Lords “ in parliament.” It was at first conceived that all appeals and writs of error were discontinued at the close of a parliament. (Haydon v. Gadsalve, Cro. Jac., 342; Dethick v. Bradbourne, T. Raym., 5.; Crouch v.. Haynes, Wm. Jones', 66). But the Lords, feeling the inconveniences of the rule in this case, determined that appeals and writs of error should not abate by a prorogation or dissolution. (Prichard’s Case, 1 Levins, 165; Gofton v. Sedgwick, 2 lb., 93; 5 Com. Dig., tit. Parliament, P. 2, 311). The ductility of this mere rule of business is still more strongly manifested in the denial of its applicability to a case of impeachment. The Commons are the prosecutors in such cases. Even after conviction, judgment cannot be pronounced except upon their motion at the bar of the Lords. (Dwarris on Statutes, 254.) In this form of proceeding they virtually possess the pardoning power, like the prosecutor in the ancient appeal of death. (1 B. & Ald., 457.) Yet it is settled law that a subsequent House of Commons may proceed upon a pending impeachment commenced by a [269]*269previous House. (1 Dwarris on Statutes, 253; Earl of Salisbury’s Case, Carthew, 132.)
So much for the idea of a parliamentary law of England, deducible from the practical rules for the dispatch of business, adopted in that country, which, by analogy, should control the action of our City Council, under its positive written charter.
An answer even more decisive, may be given to the attempt to establish a similar analogy in this respect between our own parliamentary constitutions and the city charter.
Neither the constitution of the United States, nor that of this State, nor any of the amended charters of New York contains any provision bearing directly upon the mode in which, as a general rule, one house shall act upon the resolves of the other. Light upon that point can only be gathered from the provisions concerning the executive assent.
The federal Constitution, Article 1, § 7, subd. 2, provides, that: “ If any bill shall not be returned by the President within ten days, (Sundays excepted), after' it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the congress by their adjournment prevent its return, in which case it shall not become a law.” The Constitution of New York, of 1821, (Art. 1, §12); and the Constitution of New York, of 1846, (Art. 4, § 9), use precisely the same language. The Constitution of Hew York, of 1777, (Art. 3), gave the veto, not to the governor, but to a council of revision, and no aid can be gathered from its provisions. The Amended Charter of New York, of 1830, (Davies’ Laws, 201), contains the following provisions on this subject:
§ 12. Every act, &c., which shall have passed the two boards of the common council, before it shall take effect, shall be presented, duly certified, to the mayor of the city, for his approbation. If he approve, he shall sign it; if not, he shall return it, with his objections, to the board in which it originated, withvn ten days thereafter / or, if such board be not then in session, at its next stated meeting. The board to which it shall be returned, shall enter the objections at large on the journal, and cause the same to be published in one or more of the public newspapers in the city.
[270]*270§ 13. Such board “ shall, after the expiration of not less than ten days thereafter, proceed to reconsider the same. If, after such reconsideration, a majority of the members elected to the board shall agree to pass the same, it shall be sent, together with the objections, to the other board, by which it shall be likewise reconsidered, and if 'approved by a majority of all the members elected to such board, it shall take effect.” § 14. If the mayor shall not return any act, or ordinance, or resol ution so presented to him within the timé above limited for that purpose, it shall take effect, in the same manner as if he had signed it.
The only thing in this act throwing light upon the meaning of the above reference to stated meetings, is as follows:
§ 9. “ The stated and occasional meetings of each board shall be regulated by its own ordinances; and both boards may meet on the same or on different days, as they may severally judge expedient.”
The amended charter of 1849, (Davies’ Laws, 205), made the following alteration:
§ 6. “ If any ordinance or resolution passed by each board, as provided by sections 12 and 13 of the amended charter of 1830, shall not be returned by the mayor within ten days (Sundays excepted) after it. shall have been presented to him, the Same shall become a law in like manner as if he had signed it, unless the close of the session of the common council shall prevent its return, in which case it shall not be a law until the expiration of five days after the commencement of the next session of the common council, by whom the ordinance or resolution shall be reconsidered, if returned within such time, and be disposed of in the same manner and with the like effect, as if presented at the preceding session.”
There is no alteration in this branch of the law by the amended charter of 1853, except that section 5 requires a two-third vote to overcome the veto. Section 3 of the charter of 1849 provided that “ the common council shall annually hold only three stated sessions, of not exceeding one month each, commencing on the first Monday of January, May and September.” (Laws of 1849,- 278). But by act of 1851, this section was so modified as to read, that:—“ The common council [271]*271shall hold their sessions monthly, commencing on the first Monday of each month; but at no such session shall the members be entitled to draw any per diem allowance for a longer period than eight days.” (laws of 1851, 1001, § 1). The amended charter of 1853 did not supersede the old board of assistants and let into its place the board of councilmen until January 1, 1854. (Davies’ Daws, 211, §§ 2, 3).
It will be seen that by the Constitution of the United States and of the State of New York, the mode -in which the houses should commune (so far at least as this question is concerned) was left to their own discretion. A long interval between the sessions must have been contemplated. It was not to be supposed, that in bodies so constituted, old unfinished business would be resumed after an election of new members to the lower house and of a large part or the whole of the other. The discontinuance of a pending measure is only provided for in one case, viz., the non-approval of a bill by the Executive. Both constitutions provide that an adyournmmt of Congress, by which a return within the ten days is prevented, shall work an absolute discontinuance. In that case, the bill “ shall not become a lam''
The charter of 1830 was adopted in a convention elected by the people, containing some of our most learned and eminent jurists. (See Report of its proceedings, Kent’s N. Y. Charter, 1 ed.) No one can read this charter without perceiving that it was modelled upon our written constitutions. The intent may therefore be gathered as well by observing what they expunged as by perusing what they retained. (12 Wend., 318). It may fairly be supposed that they deemed the former unsuitable. They expressly and affirmatively repudiated the idea that the close of a session shall work a discontinuance. The mayor is required to return the bill to the next session. This idea is carried forward and enforced in the subsequent amendments; and besides, it is a matter of history, that our charter has been renewed and amended under a high pressure of party clamor against the corporation, twice, since the very question we are now discussing arose in the common council, and was determined adversely to the doctrine of discontinuance. It arose-in 1850; the very part of the Charter of 1849 most nearly con[272]*272nected with the subject was amended in 1851, and we obtained a new amended charter in 1853. It seems that the people and the legislature approved the principle of unbroken continuity. (2 Kern., 231.)
So much for any reasoning from analogy to our own constitutions. The comparison affords a conclusive argument against the notion of a discontinuance. If we refer to the detailed provisions of the charter as to the course upon a vetoed ordinance, they are found most positive and peremptory in their directions: they push forward the measure through all the successive steps of legislation, without admitting of any exceptional case. The mayor shall return it, the board receiving shall reconsider it, and shall send it to the other board, by whom it shall be likewise reconsidered. If approved on such reconsiderations, “it shall take effect.” The mayor is peremptorily enjoined to send it to the next session, though it be in the next year; the body receiving it, after reconsideration, though it be on the last day of the year, are peremptorily enjoined to send it to the other, though the members be all new, and the latter is commanded to reconsider. The language throughout is the most imperative that could be employed. To fritter away these positive injunctions of law by implied exceptions, founded upon far-fetched and inapplicable analogies, would not be giving law, but trifling with the clearly expressed will of the supreme law-making power.
If, as suggested, a board should commit such an abuse as to pick up among the dust and rubbish of by-gone days an antiquated and forgotten measure, which had been long previously sent to it for concurrence, and approve it, the mayor’s veto would correct the mischief. After that the assent of the first board would again become necessary. Besides this is an extravagant supposition. The reasonable construction of a law is to be judged of from what would naturally be the usual and legitimate course of action under it. A particular construction is not to be rejected because a fertile imagination can eviscerate from supposable morbid action, a possible inconvenience. It is the duty of each board, as soon as it conveniently may, to act upon and dispose of each measure sent to it by the other for concurrence. A violation of this duty is not to be pre[273]*273sumed, and nothing is less likely than a violation to the extent suggested.
S. B. Strong, J.
The plaintiffs are owners in fee of lots and buildings, Wetmore and Hoppok severally on Washington street, and the Stuarts on Greenwich street, all south of and below Reade street. They respectively claim to the centre of the street opposite to their lots. They are tax payers to a considerable extent in the city of New York, They complain that the defendants threaten and intend to construct a railway through the two streets, their entire length, and extending through the Ninth avenue to Fifty-first street, under an alleged grant from the common council of the city, by resolutions purporting to have been adopted by the board of assistants on December 20, 1852, and by the board of aldermen on January 5, 1853, and subsequently on reconsideration, after the mayor’s veto, in November and December of the latter year. The plaintiffs aver that the grant is invalid, and that they have a right to prevent its operation, as tax payers, as proprietors of lands which it is proposed to devote to a new purpose without allowing them any compensation, and as persons who will sustain a special injury by the construction and proposed use of the railway; and they therefore ask for an injunction restraining the deponents “ from entering into, or upon, Greenwich and Washington streets, for the purpose of laying or establishing a railroad therein, and from digging up, or subverting the soil, or doing any other act, in these streets, tending to encumber them, or to prevent the free and common use thereof, as the same have been heretofore enjoyed.”
The defendants in their answer deny that the plaintiffs are the owners of the soil of the streets mentioned in their complaint, or of any part thereof; but they allege that the ownership is wholly vested in the corporation of the city. They aver that the corporation had power to make the grant in question, and that it was correctly made ; and they state in a supplemental answer that “ they actually commenced the construction of the proposed railroad, prior to April 4, 1854, and that before that day the said road was in part actually [274]*274constructed in conformity to the resolutions of the common council,” and that on that day the legislature of the State passed an act ratifying, confirming, and establishing the grant to them, and they admit that they were constructing, and claim that they have the right to complete, and use the proposed railroad.
. The judge before whom this action was tried at the special term, decided that the construction of the proposed road along the streets where they passed the plaintiffs’ lots, would inflict ■serious private injury upon the plaintiffs, in unduly obstructing them in approaching to their respective places of business, .adjoining upon such streets, amounting in effect to a private nuisance to them, unless the grant is valid; but he also held that the grant was legal and valid, and that the defendants should not be restrained from proceeding with the construction of the road; and he therefore dissolved a preliminary injunction which had been granted, and gave judgment for the defendants. An appeal from his decision has been brought by the plaintiffs, and is now before ns for our determination.
It is entirely clear that suits for the redress or prevention of public wrongs, where there is no pretence of injury to individuals in their private capacity, can be maintained only by, or in the name of, the people. Where, therefore, individuals, without invoking the aid of the public, call upon our courts for protection, they must show that their private rights are ■endangered. The principle is too clear to need any illustration, and too well supported to require the citation of any ■authority.
In speaking of public wrongs, I do not intend to include such as may be sustained by corporators by the mismanagement of their corporate funds or property, by their officers. ‘These are included in the class of private wrongs. Their officers act in the capacity of trustees, and their conduct as •such is subject to the rules applicable to individuals. It is not a matter in which the people of the entire State in their collective capacity have any interest. If the proposed grant to the defendants in this case is of a franchise in the streets, that would unquestionably be property belonging originally to ■the corporation, and if the grant is improvident, and involves [275]*275a breach of trust, it would for that reason be invalid, as much so as if it had emanated from individuals in their private capacity. Then, too, the plaintiffs as corporators, and therefore the beneficiaries, would have the right in behalf of themselves and their associates, to impeach the transaction. In the case of the Mayor, Aldermen, and Commonalty of the city of New York v. Britton (reported in pamphlet), Chief Justice Nelson says that in the case of Bailey against the same defendants (3 Hill, 531), it was held that “ the grant of the legislature, authorizing the city to furnish the inhabitants with pure and wholesome water, by means of the Croton aqueduct, was the grant of a special private franchise, made as well for the private emolument and advantage of the city as for the public good, and that the defendants, quoad hoc, were to be regarded as a private company, and to be dealt with accordingly; that they stood upon the same footing in this respect as would any person or body of persons upon whom the like special franchise had been conferred.” I retain the opinion which I expressed in the case of Milhau against Sharp (15 Barb., 230), that these grants of permission to construct, and in a limited manner use railways in the city, are in terms of franchises.
The resolutions in this case purport to convey to the grantees, and, as I conceive, to them exclusively, the right to run cars upon the rails for the conveyance of passengers, subject to the provisions therein specified; and they provide that the joint stock association which may be formed “ shall have the control, management, and direction of the road, and the business thereof.” It was insisted on the argument that the resolutions in question cannot operate as the grant of a franchise, because they are not under seal. But when a grant is by an act of legislation, and not by individuals pursuant to it,' a seal is unnecessary. There is no limitation of the time for which the grant is to endure, nor is there any express power of revocation. If such a power can be implied from the character of the trust devolved upon the corporation by its charter, that would not deprive what is granted of its character as a franchise while it continued. I do not intend to say that it is competent for the corporation to grant to individuals a franchise in the use of the public streets. I only speak of these [276]*276resolutions as they read. , If the grant would have been valid according to its plain import, provided it had been made in good faith, it seems to me that the plaintiffs can assail it for unfaithfulness in the administration of a trust, not in their character of tax-payers, for that would include non-residing owners of real estate, but as beneficiaries or eestuis que trust. But it is a serious difficulty in their way in this particular, (and one which relieves me from considering the question of fraud in the common council), that the judge who heard the evidence on this subject has decided that no breach of trust was. proved. So grave a charge ought not to be Hfhtly inferred,, but, to be of any avail, should be affirmatively and clearly sustained by the evidence. The charge was that more advantageous offers were rejected by the common council, but the judge says that a better Iona fide offer is not proved to have been made. In an equity case, we are not, it is true, concluded by the verdict of a jury or the decision of a judge on questions of fact; but upon a full examination of the evidence, I am satisfied that the judge came to a correct conclusion upon this question. The plaintiffs cannot, therefore, avail themselves of this alleged ground to sustain their action.
The allegation of the plaintiffs, that the defendants purpose to take their respective lands for the track of the road, is not sustained by the proof. Their titles to the lots claimed by them were not admitted in the answer, nor were the conveyances to them produced in evidence on the trial. There was proof of possession of the lots and buildings adjoining the-streets by the plaintiffs, or under them, as owners. But there was no direct evidence of their possession of any part of the streets in front of their lots except of the vaults, for which they had -respectively made compensation to the common council, to which body they had applied for permission to-construct them. In the country the possession of land adjoining a public highway is justly deemed some, although not conclusive, evidence of the possession of the adjoining half of the road, subject to the easement. Ordinarily, the owners of the land devoted' to the public use, in the rural districts, retain some rights in the soil—all the private rights which may be. compatible with the free and unobstructed exercise of the-[277]*277public privilege. Thus they have the exclusive right to the pasture and the wood, which are frequently of considerable value. The existence and the common exercise of the right raise a presumption in favor of the adjoining proprietors. It is but a presumption of a fact, however, and may be rebutted. In cities the pristine or (if there be any such) the existing owners of the strata of the streets, cannot exercise any acts of possession for their individual benefit over the devoted soil. The many uses to which it may be appropriated preclude that. They have not, therefore, any possession which can raise a presumption of title.
[282]*282If the objections which I have been considering had been originally valid, they would not have been cured by the confirmatory act of April 4, 1854. The legislature may, as some suppose (although I do not), possess despotic power, except where the people have been so fortunate as to restrict it by their organic law; but that contains a restriction broad enough to prevent the enactment of an effectual law to sanction the breach of a private trust, or to prevent private property not only from being taken, but from being in effect annihilated, without a fair and just compensation to the owners. It is, however, unquestionably competent for the legislature to relieve a measure from any objections exclusively of a public character. That would of course be no infringement of private rights; and the rights of the people in their collective capacity are generally subject to legislative control. If, therefore, the resolutions in question exceeded the power conferred upon the city legislature in authorizing the construction of the proposed railway at all, or in creating or conferring upon private individuals a franchise which would constitute a monopoly in the public streets, and which would in effect violate a general provision in the law of the State for the benefit and protection of travelers, or in restricting the common council in their power to regulate the streets, or in authorizing the creation of a public nuisance irrespective of its effects upon the rights of private individuals, or if the common council in making the grant assumed executive or administrative powers which had been expressly denied to them, or if the resolutions would interfere with the power conferred upon the mayor, to license carriages, all these being, as was truly said by the counsel for the defendants, “ objections with which no private individual has any concern, and of which the State alone can complain,” were effectually released by the confirmatory statute, and which, so far as it relates to these matters, the same learned counsel very properly denominated “ a peace act.”
The remaining objection is, as I view it, of a much more formidable character. It is that these alleged resolutions were never adopted by the common council; that they were never legally passed.
[283]*283That the two boards in what they passed in this matter acted in their legislative capacity, I do not entertain a doubt. Whether it is considered as a simple regulation of the streets, revocable at any time, or as a grant of a franchise, it is still a legislative act. The delegation of legislative power to the Common Council is in general terms. It is limited, of course, by the constitution and laws of the State, but neither restricts it in the particular which I am considering. As the statute gives no definition of the term it must be understood and interpreted according to its ordinary signification. The practice of the constituting power may always be considered, and should have controlling weight in the interpretation of its own language. How, it has ever been the practice of our legislature to confer franchises, and even to convey lands to individuals, by legislative acts. If a principle like this needs confirmation, it has it in the case of Fletcher v. Peck, (6 Cranch, 137), which was cited by the defendant’s counsel. I do not think that it. was decided otherwise by our Court of Appeals in the case of the People v. Sturtevant. It is difficult to say how far the court intended to go in that case. The only point necessarily decided was, that if those proceedings of the common council purporting to authorize the construction and use of railways, were legislative acts, they were not so far exempt from judicial interference that an injunction restraining legislative action was void, or could be safely disregarded. That was enough for the determination of that case, and whatever else was said in the opinion of the learned judge was an obiter dictwm, and no doubt would be so considered by him in any subsequent case.
The common council in the years 1852 and 1853 consisted of a board of aldermen and a board of assistants, who together possessed and wielded the legislative power of the corporation. There could be no act of the common council without the cooperation of both boards. The term board, as applied to those bodies, may have two meanings—one abstract, having reference to the legislative creation, which is continuous—and the other referring to its members, in which latter and more important sense it is changed by every new general election. The members, of course, constitute the board for all purposes [284]*284of action, and when powers are to be exercised, the members legally assembled can alone act. Legislation to be effectual, must be performed by the two boards, who together constitute the common council. Row, as an acting body, the common council of 1852 was not the common council of 1853, because there was an entire change of the members of one of the constituent bodies—the assistants—on the 1st of January, 1853. The resolutions in question were not passed by the common council of 1852, as they w'ere not then adopted by the board of aldermen, nor by the common council of 1853, as they were not then adopted by the assistants. It is not pretended that the resolutions were passed in 1852. They were not passed in 1853, because the assistants of 1852 and the aldermen in 1853 could not, in the latter year, coalesce so as to form one common council. The members of the two boards are the legislative representatives of the corporators, and their acts in that capacity are considered as the acts of the corporation. They derive their efficacy from the principle of representation. They are representatives only during their official term. Who, then, were the legal representatives in 1853 ? Most assuredly the then existing aldermen and assistants, and no act could be passed in that year without their co-operation. But if the procedure, in this instance, was valid, an act might be passed, not only without the co-operation of the two existing boards, but in opposition to the views of the members of one board, by whom it had never been approved, or even considered.
The legislature might have authorized this anomalous procedure ; but it has not done so, certainly not in direct terms, nor, as it seems to me, by inference. The provision in the amended charter of 1849, “ that when the mayor is prevented from returning an ordinance or resolution of the common council by the close of its session, it shall not be a law until the expiration of five days after the commencement of the next session of the common council by whom the ordinance ■or resolution shall be reconsidered, if returned within such time, and be disposed of in the same manner and with the like effect as if presented at the preceding session,” has reference to the same council by whom the ordinance or resolution was originally passed, and not to one whose members had been [285]*285changed. That construction is supported by the direction that the ordinance or resolution shall be reconsidered at the latter session. Reconsidered by whom? Certainly not by those who had never considered it before. But if the provision may apply to a newly elected board, it is special, relating simply to a reconsideration of a measure by the two existing boards, and can be extended no farther—certainly not so far as to violate a principle of representation.
The case of Coles against the Trustees of Williamsburgh, (10 Wend., 659), simply decides that where a petition is necessary to any action of a municipal corporation, one presented to a former board will authorize their successors to proceed. That may very well be, as the presentation of the petition was a perfected act, so far as it related to the subscribers. Rothing more was to be done by them, and as to them it mattered not to which board it was presented. That has no reference to the case where the conjoint action of two constituent bodies is requisite to make it the action of the composite body.
The delegation of legislative powers to the common council, as it was constituted in 1852 and 1853, was by statute. The Dongan charter, it is true, recites that “ the city of New York is an ancient city, and the citizens of the said city have been anciently a body politic and corporate.” That was not enough, however, to show that it was a corporation by prescription; nor could it have been such, as sufficient time to make it such under the English law had not elapsed since the discovery of this continent. If, however, it had been a corporation by prescription, the division of the common council into two boards was by statute and of modern date. The principles which control this new institution are such as are applicable to recent enactments. In such cases the grant to the corporation cannot be explained, and most assuredly its powers cannot be created by usage. In ancient grants, and especially when expressed in obsolete phraseology, usage under them may be resorted to for explanation, but never, even in such cases, to establish additional powers. That the common council may have adopted a practice conformable to what was done in this instance, and pursued it for a period of twenty-five years, if it had been fully proved, which it has not, would not have shown [286]*286that it was legal, or within the compass of their powers. Their legislative powers were not derived- from usage, but were acquired wholly under the statute. In all such cases, if there are express statutory definitions they must control, but if there are not, any power conferred must be taken with its ordinary qualities and incidents. That is the reasonable rule, and it has been established by authority.
What then was the rule in the particular which I am considering in legislative bodies consisting of two branches ? In England, when there was an election of a new House of Commons, the unfinished business pending in the preceding parliament was at an end. There was never an instance where a bill adopted by the House of Commons, only, of one Parliament, was taken up by the House of Lords and finally passed without the concurrence of the newly elected body. The rule has been extended to prorogations, and where the same houses re-assembled. Blackstone says (1 Comm., 186,) that “ prorogation puts an end to the session, and then such bills as are only begun, and not perfected, must be resumed de novo, (if at all) in a subsequent session.” Jefferson says, {Manual, § 61) “ Parliaments have three modes of separation, to wit:—By adjournment, by prorogation or dissolution by the king, or by the efflux of the term for which they were elected. Prorogation or dissolution constitutes there what is called a session, provided some act has passed. In this case, all matters depending before them are discontinued, and at their next meeting are to be taken up de novo, if taken up at all. An adjournment, which is by themselves, is no more than a continuance of the session from one day to another, or for a fortnight, a month, &e., ad libitum. All matters depending remain in statu quo, and when they meet again, be the term ever so distant, are resumed, without any fresh commencement, at the point at which they were left.” (1 Lev., 165, Lex Parl. c. 2; 1 Rolle's B., 29 ; 4 Inst., 7, 27, 28; Hutt., 61,1 Mod., 152; Jac. L. Dict. tit. Parliament.) He subsequently remarks that “ when it was said above, that all matters depending before parliament were discontinued by the determination of the session, it was not meant for judiciary cases depending before the House of Lords, such as impeachments, appeals and suits [287]*287of error. These stand continued, of course, to the next session. (Raym. 120, Jac. L. Dict. tit. Parliament.) Impeachments stand, in like manner, continued before the Senate of the United States.” It is stated in a note, “ that it was held in the case of Hastings that a dissolution did not work the discontinuance of an impeachment.” Impeachments are like indictments, and when once preferred they remain pending before the courts until they are decided; so, too, the House of Lords acts as a court in hearing and deciding appeals and writs of error, and is then governed by the same rule of procedure. But the action of the House of Lords, when sitting as a court and acting alone, furnishes no rule for governing their conduct when acting in their legislative capacity, where the concurrence of another body is requisite. The practice of the English Parliament, when acting legislatively, has been uniformly followed by the Congress of the United States, by the legislature of this State, and, so far as I know, by the legislatures of all the other States. In all those bodies, when there has been a new election of either branch, the unfinished business of their predecessors is considered as absolutely discontinued, and if taken up at all, is acted upon without reference to what has been done before.
Why is not this rule applicable to the Common Council of Hew York ? Can a power delegated to them be taken without the restrictive incidents which enter into its definition? and above all can it be supposed that when a superior body confers some of its own power upon an inferior one, it designs to go beyond its own limits ? I am satisfied that this rule of action in all legislative bodies must govern and control the Common Council of Hew York in their legislative proceedings. The supposed resolutions in question were therefore null and void when presented to the mayor for his consideration. The subsequent action of the two branches was not, therefore, upon the reconsideration of a previously adopted ordinance. If it could have any effect it would have been as an original or a new enactment. In that view it was ineffectual, as it was not subsequently presented to or approved by the mayor. In fine, what was attempted to be done was neither a grant, license, resolution or contract of the Common Council, or, in fact, of [288]*288anybody. It was not, therefore, confirmed by the “ peace act” of April 4, 1854. It was not embraced in its terms, nor conld it have been the design of the legislature to complete the unfinished business of the Common Council, or of either of its branches. The resolutions in question had been adopted but by a single Board in any year, or during the existence of any one Common Council, and were not, therefore, at any time the act of the entire body. If such resolutions are cbaractei’ized by what they are, and not by what they are designed to be, a confirmation of the acts of the Common Council would not reach them.
In this point of view it is unnecessary to consider the question discussed at the bar—whether a nullity from inherent defects can be confirmed by an act of the legislature ? or, another question,—Whether the legislature, having devolved the power of regulating the streets upon the Common Council, can resume it without the consent of the inferior body, legally expressed ?
The remaining questions to be considered are, whether by the construction or use of the proposed railroad the plaintiffs would clearly sustain a serious special injury which would produce a public nuisance,—and if so, one peculiar to themselves—by the noxious procedure.
I agree to what appears to be the predominant judicial sentiment in this State, that an authorized railroad in a city is not a public nuisance. When the principal act is sanctioned, that legalizes the temporary obstruction to the public caused by the prosecution of the appropriate work, tmd would prevent any effectual action by individuals on account of any consequential injury—although it might be peculiar to them—which should necessarily result from it. But it is otherwise when the railroad is constructed without the requisite authority, then the obstructions, at least in removing the pavement and laying the rails, would be unjustifiable, and as they would necessarily be considerable, they would amount to a public nuisance. If the injury would be confined to travellers, (and by that term I intend to include all who use the street simply as a passage,) the people alone could sustain an action for its reformation or prevention. In order to enable individuals to [289]*289maintain a suit for prevention in their own behalf, it must be apparent that the injury of which they complain will ensue, and will be peculiar to themselves. The apprehended deleterious result must be reasonably certain, and not merely possible or even probable. Thus if one threatens to dig a pit or deposit a log in the highway, an individual cannot obtain an injunction to prevent the nuisance because he is in the habit of riding in that part of the highway in the night and he or his horse will probably sustain a fall; not even if it should be near his dwelling-house. The danger might be imminent under such circumstances, but not certain, and it would also be one which he would share with the travelling public, and would extend no further than to what might be incurred in the use of the street simply as a passage, and the greater probability or extent of the apprehended injury by reason of propinquity would not change its character from public to private.
The judge who tried this action found substantially that the plaintiffs would sustain special injury by the obstruction to the access to their stores. This apprehended grievance is not one of those particularly specified in the complaint. It is included in the general charge that the proposed work would, if prosecuted, be specially injurious to them. The rules of good pleading would seem to require greater particularity; but if the complaint was defective in that particular, the defendants should have moved for an order upon the plaintiffs to reform it, or at any rate should have objected on the trial to the introduction of evidence to support a charge not sufficiently specified. As they did neither, it is too late for them to raise it now. It must be considered as having been waived, especially as it was not even mentioned in the argument of the defendant’s counsel, who never omits raising an available or even plausible point in behalf of his client.
The judge’s conclusion that the access to the plaintiff’s buildings on the side of the streets through which it is proposed to construct the railroad, would be obstructed, seems to be warranted by the evidence, and indeed was not seriously controverted on the argument. But the defendant’s counsel contended so strenuously and ingeniously that this apprehended injury would not be special and peculiar to the plaintiffs, that it produced con[290]*290siderable doubt in my mind whether I had not been mistaken in the opinion which I had expressed to the contrary in the Broadway Railroad Case. (Williams v. Sharp, 15 Barb., 230). I there say,—“ If the grant is void from the want of adequate power to make it, or indeed invalid from any cause, the plaintiffs as proprietors of buildings on Broadway, would be peculiarly and seriously injured by an attempt on the part of the defendants to construct the proposed railway, and they would be entitled to an injunction to prevent evils for which they could obtain no adequate redress in the law.” My examination of the subject since the argument of this case has dissipated the doubts which were then created, and led me to a resumption of my former opinion. The injury in this case is not to the passage along or across the street from one part to another, which is a public privilege, but to the access' from the street to the plaintiff’s buildings, which is a private right, in which the public does not share. An interruption to such access would inflict an injury upon the owner peculiar to himself, in which others have no concern. It is true that the number of sufferers in this instance would be very great, but that would not prevent any of them from obtaining individual redress. It might be a valid reason for including as plaintiffs in one action numerous persons who have no joint interest, for the purpose of averting a threatened evil from a common cause, affecting them all. The injury, if inflicted, -would be direct, and not remotely consequential, and the difference is very essential. Thus, if a serious obstruction should be created in the mouth of the Mississippi, it would to some extent impair the access from the ocean to the lands of the riparian owners on that noble river. But, then, the injury would be consequential to the interruption of a public privilege, and not directly acting upon a strictly private right. The public privilege of passing from the ocean into the river would be alone invaded, and that would not furnish a valid cause of action to individuals to whom the consequences might prove injurious. That distinction would prevent or render innocuous the “ shower of subpoenas ” in suits instituted by the riparian proprietors, to which allusion was made by the defendant’s counsel. The decision of the Court of Appeals in the case of Grould a. The Hudson [291]*291River Railroad Company (2 Seld 522), does not overrule this doctrine. I say the decision, because that applied to the questions actually involved, and was not necessarily accordant with all the remarks of the learned judge who expressed an opinion in that case. The question in that case was whether an owner of land on the banks of the Hudson river could maintain an action against a railroad company for damages sustained by him in being deprived by an embankment of his access to the river. The court held that the action could not be sustained, because the damages resulted from an obstruction authorized by the statute organizing the railroad. But if that is good law, it by no means follows that the action would have failed if the obstruction had been unauthorized by the legislature. The owner, it is true, would sustain a damage whether the oa/usa ca/usans bad been sanctioned by legislation or not, but if it resulted from a lawful cause it would -be da/rrmum absque injuria. I cannot suppose that the Court of Appeals intended to decide, nor do I believe it to be law, that the owner of land adjoining a highway by land or water, has not a private right of access to it, (and if there is such right it must necessarily be private, as the public cannot share in it), or that damages caused by an interruption to it by an obstruction unlawfully interposed are irrecoverable.
Upon the whole, I am satisfied that the project for the proposed railway was never legally adopted by the common council, and that its pursuit, if tolerated, would inflict serious injury upon the plaintiffs, in which none but the proprietors of the land adjoining the streets through which it is designed to construct said railway would participate, and that, therefore, the injunction for which they ask should be granted.
The judgment at the special term should be reversed, and an injunction should be awarded pursuant to the prayer in the complaint.
I am not inclined to allow any costs.
Roosevélt, J.
Messrs. Wetmore, Hoppoch & Stuart, of this city, and also owners of property on Greenwich and Washing- • ton streets, complain that the defendants, under the name of the ¡Ninth Avenue Railroad Company, and under color of a [292]*292pretended grant from the city authorities, are about extending-their premises, to their great injury and annoyance, and in violation of their rights. An injunction granted in the first instance, on their application to restrain the proceeding, was subsequently at special term dissolved and the complaint dismissed. From that judgment the plaintiffs have appealed,, insisting that the injunction originally issued, instead of being-dissolved, should be made perpetual.
On the part of the defendants, it is not pretended that every citizen has a right to lay a rail-track in the streets of the city. The corporation, however, it is claimed, may do it, or, in their discretion, by a resolution of the common council, may grant the privilege, as a franchise, to a particular individual association of individuals. Such a grant, it is alleged, has been made-in this instance. The judge so held at special term. He placed his final decision on that ground. And the question, therefore,, is:—Can a resolution, adopted by the board of assistants in one year, be concurred in by the board of aldermen in another year, so as to make it, without consulting the existing board of assistants, an ordinance of the common council? or must it be, as in the case of unfinished business in other legislative-bodies be taken up de novo?
When the charter of 1830 declared that “ the legislative-power of the corporation of the city of Hew York should be-vested in a board of aldermen and a board of assistants, who together should form the common council of the city,” it must be considered as having adopted by implication, so far as applicable, the universally recognized principles of legislative-bodies constituted of two independent branches.
The settled practice and understanding—indeed, we may say the common law—of such bodies, as illustrated in the Congress of the United States, the legislature of this State,, and, it is believed, in the legislatures of every State in the Union, as well as in the Parliament of Great Britain, repudiates-the idea that the board of aldermen of 1853 could take up and pass the resolution of the politically-deceased board of assistants of 1852, and give it effect as law, without consulting the newly-elected body. It might have been, although not so in the present instance, elected on the express ground of opposition to-[293]*293the particular act of their predecessors, and for the express ■purpose of preventing its consummation.
Ho case has been cited, in which the senate of a State, or of the United States, or the Upper House of Canada, or of 'Great Britain and Ireland, has attempted to give effect to the inchoate action of a previous assembly, house of representatives -or house of commons, whose term had expired and whose places were filled by others newly chosen in their stead.
To allow an opposite practice in the legislation of the city -common councils since its new organization, would be at times to defeat the will of the constituents, clearly expressed through the regular channel of the ballot-box, and to render the elective franchise a nullity. Although the corporation of the city is a continuous body, the common council, since its division into two branches, is not. Its legal term, like that of the State -legislature, upon whose model it was formed, is one year, and mo longer. The common council of 1852 is not the common council of 1853.
This defect is not cured by the act of April 4, 1854. The primary object of that act was to prevent the common councils of cities from permitting the construction of railroads in the streets of cities without the consent of a majority of property owners immediately interested; and when it excepted from its operation railroads already “ constructed in part” it meant those constructed under lawful authority, and not under •“ grants, licenses, resolutions .or contracts,” which had never been made, given, passed or entered into according to the •charter, and which, therefore, having in judgment of law no ■existence, could not be “ confirmed.”
The confirmation intended was a confirmation as against the 'State, and not against the common' council itself. An opposite ■construction of the act, instead of restraining the common -council from permitting injurious railroads, would go to sanction roads commenced in violation of law, and which had ■never been permitted at all.
Having had, therefore, no warrant for its commencement, and none for its continuance, the road in question, under the •evidence, is not only a public nuisance, of which the plaintiffs ihave a legal right to complain as specially injurious to them [294]*294in their ingress and egress to and from their place of business. ' on the street.
Such a nuisance, it is well established by numerous decisions,, can and ought to be restrained by injunction, if demanded, as in this case, by the parties specially aggrieved.
The judgment therefore of the special term, we all agree,, should be reversed, and a perpetual injunction awarded.
Clerke, J.—For the reasons above expressed in Judge-Roosevelt’s opinion, I concur in the conclusion, at which both my associates arrived.
The following is the substance of the very elaborate argument of the respondent's counsel, on this point.
The fee-holder in a country road has generally the whole interest in and profit of the land, subject to a right in the public to pass over the surface, and to perform such work upon it as may be necessary to keep it in repair. He has a right to all grass or other fruit produced upon it. He may plant trees upon it for his own use, (1 R. S., 525, (/ 127). He may carry water pipes under it, (3 Kent, 433 ; 1 Burr, 143). And, in short, he may make any other private use of it, or take any private profit from it, not absolutely inconsistent with the public right of passage.
The servitude of a city street, when the fee is in a private person, is of a character far more comprehensive. The urban servitude confers upon the municipal authorities a right to pave the whole surface, so as to exclude the raising of grass, trees, or any profit of that sort,—to restrain any disturbance whatever of such surface, or other private use of the street,—to sink wells, and erect pumps, lamp-posts, and other like structures, for public accommodation,—to form subterranean sinks, ■drains or sewers,—and to pass pipes beneath the surface for the purpose of supplying the inhabitants with water, gas, &c. In fact, this servitude demands, to answer its object and purpose, the entire and exclusive use of the land upon or below the surface, and precludes any private use, occupation or employment of the space above. The adjacent lot-owner cannot project a stoop, a bow-window, an awning or a sign-board, beyond the line of the street, neither can he construct a vault, cellar or cistern, beneath the surface. The uniform action of the municipal authorities, the uniform acquiescence of all persons in it, the uniform current of judicial opinion, prove this to be the common law of all our cities.
There is no general “rule of law” that the lot owners abutting upon a street, road or highway take the fee of the land to the middle of the road. Who owns the fee of any particular piece of land, be it a road, a street, or anything else, is always to be determined by the evidence adduced in the case in which the question arises. Tracing the title by patent and deed, devise or descent from the government to the present possessor is the most certain legal evidence of title to land. But few examples of this certainly occur in practice ; and the most usual evidence of title is pos[278]*278session. Until countervailed by other evidence, this amounts to full proof of a title in fee. But possession itself cannot always be directly proven ; it is often merely constructive or presumptive.
When the question arises between individuals as to the ownership of the fee in a road, if there be no evidence of a more certain character before the court, the common rules of presumption are necessarily resorted to for the purpose of ascertaining the fact. The primary resort would naturally be to the fact of possession; but who-can be said to possess a public highway 1 To make out a constructive title to a road, the claimant may, however, prove himself to be in actual possession of the-land adjoining. It is thence presumed that he is owner of the soil usque ad filum vice, “unless a contrary right be proven.” (20 Wend., 98 ; 11 Price, 736, 739).
It is not a rule of law that the adjacent lot-owner owns the fee to the middle of the road or street, any more than it is a rule of law that a boy owns the jack-knife in his pocket, or that.a gentleman owns the pleasure boat found lying in a public-river moored against his wharf. The actual possession in the former case, and the probable appearance of possession in the latter, afford, in the absence of all countervailing circumstances, a reasonable ground to presume that the boy or the gentleman-is the owner, rather than any mere stranger. This is not a “ rule of law,” but merely a rational presumption from a given state of facts : and the so-called rule, touching ownership in roads, is no more than a frequently recurring illustration of the principles which govern the courts in deducing probable inferences from facts proven. (Watson v. Southworth, 5 Conn., 310; Peck v. Smith, 1 Conn. R., 127; 1 lb., 147 ; 7 Barn. <j- C., 308).
The public highways formed an important department of government in ancient Rome. They were made by the State, and belonged to it absolutely. (Gibb. JDecl. Fall, Load. Ed., 1838, 66, 67, n.) The Penns, as lord proprietors of Pennsylvania, acted upon the same policy; and consequently, we find the Supreme Court of that State ignoring the presumption to which we have referred. (The Philadelphia & Trenton R. R. Co., 6 Whart., 43). It would not arise in any country whose civil polity thus provided for the forming of roads, by the direct action of the supreme-government on the public domain, at the cost of the public treasury. But the common law had its birth in Saxon England, and history informs us that prior to the Norman conquest there were no public highways in that country, except four great roads made by the Romans during their military occupation. (18 Encycl. Brit, tit. Way, 820, Edinb. Ed., 1797; 16 lb., tit. Road, 304; Bac. Abr., 493, tit. Highways, a.) The English government not having concerned itself on the subject, and roads being indispensable, they came into being in early times by dedication or other private act; and, upon this head, as most others having any connection with the progress of the country in the arts of civilization, it is quite difficult to trace to their origin, by a distinct line of authorities, the doctrines which we find recognized in the law of our own times.
It appears, however, that at a very early period the courts applied the principle of dedication which has been so frequently illustrated in our own country, owing to the sudden founding and rapid growth of cities. (10 Mod., 150 ; 6 Peters, 431; 19-Conn., 265.) From their being thrown ooen, it was held that the public acquired a. [279]*279right to use the roads thus dedicated, and that any interruption of such right being-ad communem nocumcntum, was an indictable nuisance. The adjacent proprietors,, for their own sakes, scoured and kept clean the ditches by the road side; this practice was soon seized upon, declared to be an usage, and, by consequence, obligatory as a duty. (4 Viner's Abr., 504, tit. Chimin Common, B. 3 ; 3 Bac. Abr., 497, tit.. Highway, E; lb., 498, F.)
There is no instance in English jurisprudence of a contest between the government and an individual concerning title to the fee of a road. Indeed, there could not well be. The government of England, properly so called, was never recognized as the source of title. The whole territory was parcelled out to individuals by the king, or retained in his own hands as his property. In either case the title was in an individual. The jus publicum, or mere user as highways of the king’s great rivers, or of roads laid out by him on his royal demesnes, or by other great lords on theirs, was in the people, and the government was their trustee to guard and protect it. (1 Hume's Eng., 217, Lond. Ed., 1841.) It is only in controversies between the lord of the manor and the occupant of adjacent lands that we can trace the rise and progress of the doctrine now under consideration.
It was presumed that the proprietor of the land adjoining an ancient road, “ gave up to the public for passage, at some former period, the land between his inclosure and the middle of the road.” (Woolwych on Ways, 5 Law Lib., 306.) This was only a presumption in accordance with the known truth of history. When, therefore, the lord of the manor owned the adjacent land, there could be no doubt as to the fee, and when he was found to have granted away the adjacent land, there being no just reason to suppose that he had intended to reserve the road, it was assumed that he had bounded his grantee upon the road, and, as that word standing alone should be construed, by the centre line thereof. (1 Sandf. 8. C. B.., 341; 7 Barn. & Cr., 307.) Thus the English judicial practice came by very simple and natural steps to its conclusion, that the occupant of the adjacent lands being prima facie owner thereof in fee, he was also prima facie owner of the fee to the centre of road, and had all the possession of that portion of the road which was consistent with the public use.
Their reasoning is best exemplified in the cases which have arisen between manorial lords and adjoining proprietors in respect to the ownership of strips of land lying between the nearest enclosure and the highway. In all these cases the same presumption—and upon the same ground—has been allowed in favor of the owner of the adjacent enclosure; but the lord has been always allowed to displace it, if he could, by circumstantial evidence impugning the presumptive possession of the enclosure-man arising from his proximity. (Grose v. West, 7 Taunt., 41; Doe v. Kemp, 7 Bing., 332; 2 Bing. N. G-, 102; Steel v. Prickett, 2 Starkie, 463; Doe v. Pearsey, 7 Barn. <$' Cr., 307.) The title to highways in America is not involved in the mist of remote antiquity; and there never was much occasion to resort to the English books for a rule in respect to it. Every State in the Union has adopted express statutes for the laying out and establishment of highways; and, with a very few exceptions, these statutes are so expressly worded as to condemn to public use no more than the right of passage, leaving in the proprietor every other interest in [280]*280the soil. (1 Rev. Stats., 513.) Under such a course of legislation and practice, the courts, when no evidence to the contrary appeared, could not avoid drawing precisely a like inference to that which arose under the English system, i. e., that he who owned the land on each side of a highway had the fee of the highway itself, and that opposite lot-owners respectively held to the centre of the road. (2 Johns. R., 363; 12 Wend., 98; 4 Iredell’s Law R., 320 ; United States v. Harris, 1 Sumner, 34; Opinions ofAttys. Geni U. S., 777, 816, 845.)
But it is quite clear that when the title to the adjacent lot is put in evidence, and its boundary on the road is shown not to extend into the road-bed, the presumption which might else arise in favor of the lot-owner is displaced. (5 Conn. R., 310 ; Union Burial Ground v. Robinson, 5 Wharton, 23. Cases cited, 4 Hill, 370; Jackson v. Hathaway, 15 Johns., 453 ; Tyler v. Hammond, 11 Pick., 213; Dovaston v. Payne, 2 Smith’s Leading Cases, 143, 44 Law Lib.; Willoughby v. Jenk, 20 Wend., 96; Case of John & Cherry streets, 19 Wend., 675.
It will be seen, therefore, that the claim of adjacent lot-owners to the fee of the street—ad medium jilum vice—like every other question of title to land, depends upon the evidence given in the particular case, and the ordinary legal rules of pro sumption applicable to the facts proved.
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3 Abb. Pr. 262, 22 Barb. 414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wetmore-v-story-nysupct-1856.