Williams v. New-York Central Railroad

By the Court, Bacon, J. On the 11th of May, 1836, by an act of the legislature of New-York, the Syracuse and Utica Railroad Company was incorporated, for the purpose of constructing and maintaining a railroad between the then village of Syracuse and the city of Utica, by the most direct and eligible route, and to carry and convey passengers and property thereon, by the power and force of steam and other mechanical power. By the 4th section of the pattern act under which they were organized, (Laws of 1836, p. 317,) the directors were authorized to cause examinations and surveys for the road to be made, and to designate and certify the course which they should deem most advantageous therefor, and when so certified, the same was to be deemed the course on which the company should construct the road. By the 9th section of the same act, the corporation were author — 243 — ized to construct a single or double track railroad of suitable width and dimensions, to be determined by the corporation, on the course designated by the directors as aforesaid; and by the 11th section of the same act, whenever it should be necessary to intersect or cross any highway, the company were authorized to construct their road upon or across the same, restoring the road thus intersectéd to its former state, or in a sufficient manner not unnecessarily to have impaired its usefulness. Pursuant to the provisions of this act the directors of the Syracuse and Utica Railroad Company caused the necessary surveys and examinations to be made, and in May, 1837, designated the course which they deemed most advantageous for the road, and caused certificates thereof to be duly filed. At the village of Syracuse, the course so designated, proceeding from east to west, intersected Washington street, near the eastern termination thereof, and passed along and upon the same to the western termination of said street, embracing all that part of the street on which the lands of the plaintiff are situated. Ho appeal having been taken by any party interested in the land or in the street in question, as provided in the act, the route thus designated and certified became the course legally ascertained and fixed as the route of the road. Before proceeding to construct the track of their road, the company, in July, 1837, made an application to the trustees of the village of Syracuse, asking their approval of the grade of the street, in order to conform it to that of the other streets in the village, and their assent to the use of the same for the track of their road; and thereupon, on the 1st of July, 1837, at a meeting of the whole board, a resolution was duly passed approving the grade, and permitting the railroad company to lay down their rails in Washington street and to use the same as the line of their railroad; provided, however, that the public were not to be excluded from the use of the street, but the same was to remain a public street of said village, and the company were to keep the same in proper repair. The plaintiff’s counsel contend that no valid license or authority has been shown, which includes the use of the highway in question; that no such authority is given, either directly through — 244 — the charter, or indirectly through the local municipal authorities. We have seen, however, that in the very charter of this company, they were expressly authorized, whenever the route of the road should intersect or cross a highway, to construct their road across or upon the same, restoring it, however) in súch manner, as not unnecessarily to impair its usefulness; and the same provision, in the precise terms of the enactment in the charter of the Syracuse and Utica Railroad Company, is incorporated in the general railroad act of 1850. (Laws of 1850, p. 211, § 28, sub. 5.) It is not pretended that the street in question is not a highway, within the purview of these acts. It is true the plaintiff and other proprietors of adjacent land, as the complaint avers, gratuitously dedicated the land necessary for that purpose as and for a public street and highway, and the public authorities accepted it as such, but it makes no difference, I apprehend, in respect to the character of the street when dedicated, nor as to the power and authority of the municipal corporation over the subject, whether the highway became such by dedication, or was laid out, originally,-and opened as a public street by the authority of the corporation. Assuming Washington street, then, to be one of the streets and highways of the village of Syracuse, it is quite clear that the trustees of the village had the power to assent to the use which the railroad made and has continued to make of the street in question. By the charter of Syracuse, (Laws of 1825, p. 223,) the village of Syracuse is constituted a road district, and the trustees of the village, by the 7th section, are invested with all the powers, and are directed to discharge all the duties, which by law are given to and enjoined upon road commissioners in towns. By chapter 300 of the laws of 1835, it is enacted, that whenever an association or individual shall construct a railroad upon land purchased for that purpose, upon a route which shall cross any road or other public highway, it shall be lawful for the commissioners of highways to give a written consent that such road may be constructed across or upon such road or highway, and thereafter such association or individual shall be authorized to construct and use' such railroad across or on such road or highway, as the commissioners shall have per — 245 — mitted; such road or highway thus intersected or crossed to be restored to its former state, so as not to have impaired its usefulness. Here then, in these two acts, is found the legislation which gave the board of trustees of Syracuse the necessary jurisdiction over the subject matter of the license applied for ; and their action in the premises was in entire conformity with the provisions of the law under which they acted, and was fully authorized by it. The resolution passed by the board constituted the written consent for the construction of the road in the route in question, which the act contemplated and required. The company constructed the road by virtue of their charter and under the license thus granted to them, and the present defendants, under the consolidation act of 1853, have assumed all their duties and succeeded to all their rights and privileges. But it is insisted that the railroad acquired no right to occupy or use the street in question, notwithstanding the assumed permission of the municipal authorities of Syracuse, because no provision was made for compensation to the original proprietor of the land dedicated, pursuant to the provision of the constitution requiring compensation to be made to the owner of private property taken for public purposes. The answer to this is, that the property of the plaintiff has not been taken, within the intent and meaning of the constitution. The original owner of the land in this case dedicated it to the public use, and although the legal presumption is that the fee of the land is in the owner, yet the easement is wholly granted to the public. In the city of Hew-York it has been repeatedly held that the corporation has power to grant to a railroad company the privilege of laying their track through the streets of the city, and that the prohibition of ithe constitution, which is against taking private property without compensation, does not apply to a case, when the complaint is that the' injuries are consequential and incidental upon the use which the party complained of is about to make or has made of the granted right; and that to allow a street in a city to be used for a railroad track, either upon its natural surface or by tunnelling, is not a misapplication of it, ¡provided such use does not interfere with the free use of it as a — 246 — highway for passage and repassage. (Drake v. Hudson River Railroad Co., 7 Barb. 508. 10 Id. 26. 9 Paige, 171.) It is probably true that a larger power is assumed and exercised in the city of New-York over the streets, (the fee of which it is claimed, is vested in the corporation,) than ordinarily obtains in reference to highways in the country; but even in respect to streets in a populous village, such as Syracuse was at the time of the location and construction of the railroad in question, it is held that the use to which they may be devoted, is far more extensive than the mere right of the public to pass over them. They may be used in any way which shall best promote the interest and business of the village where they are located. What will so promote those interests, is to be determined by the municipal authorities to whom the control of the streets is committed. (Per Harris, J., 10 Barb. 363.) Without insisting, therefore, as we well may, that a railroad is only an improved highway, the proposition may safely be assumed, and it has respectable authority in its support, that the use of a street by a railroad is one of the modes of enjoying • a public easement, and the only restriction upon its application is, that the use to be made of streets, must not be utterly incompatible with, or subversive of, the ends for which they were established. (Chapman v. Albany and Schenectady Railroad Co., 10 Barb. 360.) The legislative authority is competent to declare the uses to which highways may be appropriated, and to impart to municipal corporations, both permissive and restraining powers over the subject matter. They have exercised the power in both forms, and the appropriate authority has declared, in this case, that the use of Washington street by the railroad of the defendants is a legitimate and proper mode of enjoying the easement dedicated to the public. It is insisted with pertinency and force, on the part of the defendants, that there is an inherent power in every government to take property for public use, except where the power is restrained by an express and precise constitutional provision. If, therefore, neither the constitution nor the laws have been transcended, in a given case, — 247 — no individual can sustain a suit against a party exercising a right granted to him by competent authority. If we are right thus far, it is established that the railroad of the defendants was located, constructed and has been operated, under authority of law; and unless there has been an excess of power, or a negligent exercise of it, the plaintiff has sustained no injury, except such as is consequent upon, and incidental to, the exercise of the defendants’ legal right. It is found as a matter of fact in this case, that there has been, on the part of the defendants, no negligence or excess of power. The injury then is merely consequential, and if the defendants are enjoying no more than has been granted to them, no individual can maintain a suit, although, he may sustain consequential damages. (10 Barb. 360. 4 Comst. 195.) The aid of an injunction can-1 not be 'invoked to prevent; nor will an action lie to redress, a ¡ consequential injury necessarily resulting from the lawful exer- • cise of a right granted by the sovereign power of the state, or 'j authorized by competent municipal authority. These consider- j ations are decisive against the claim of the plaintiff to relief, l, grounded on the allegation that the defendants are interfering with his paramount right as proprietor of the locus in quo, without any authority of law. Neither is he entitled to relief, on the ground that the defendants are maintaining a nuisance which he had a right to have abated. A railroad is not per se a nuisance, (7 Barb. 508,) and although the plaintiff and others residing on the street, may be subjected to some inconvenience from the noise and smoke and frequency of passing trains, yet it must be a very special and peculiar case in which real estate can be injured by mere noise, or the usual concomitants attending the passage of a railroad train. That which is authorized by an act of the legislature cannot be a nuisance. (Per Hand, J., 6 Barb. 313. See also Hentz v. Long Island Railroad Co., 13 Barb. 646.) The annoyances of which the plaintiff complains, are such as are frequently experienced by the dwellers in populous towns and cities, from these and other analogous causes; they are incident to their condition, and they must be endured without redress ; — 248 — “ because they are of minor importance compared to the general good which springs from the cause of which they complain.” Much was said in the ingenious argument of the plaintiff’s counsel in respect to what was styled “ the expansive genius of the common lawit was insisted that it was quite sufficient to satisfy its powers of adaptation to emergent exigencies, to call into exercise the right of eminent domain in taking private property, and that all beyond that extreme boundary was but . “ wasteful and ridiculous excess.” It may be enough to answer this suggestion to say, that it is one of the glories of the common law, the subject of not unfrequent eulogy by grave and honored judges—the “ laudatores temporis acti”—that it is of such a plastic and accommodating spirit, that it readily and promptly adjusts itself to the changing conditions of society, and to novel circumstances in our relative, social and proprietary relations. Hew channels of intercourse, newly developed motive powers, expanding commerce and rapidly progressive improvements, demand and authorize the application of wider principles, and broader maxims, than those which satisfied the more limited wants and less ambitious enterprizes of our fathers. To protest against this power of adaptation, inherent in the common law, to cases as they arise in our onward progress, is to restrain and impede, not develop and improve. It would be quite as wise to insist that the maritime law, which was sufficient to regulate the commerce of the world when a Roman galley crept timidly and cautiously along the shore, and was deemed hopelessly lost in a starless night, shall now constitute our entire code, when every ocean is whitened with our canvass, every sea “vexed with our fisheries,” and the keels of our adventurous navigators plough as well the regions of equatorial heat as of eternal frost, visit all climes and exact tributes from all lands. “ The law,” says Ch. J. Robertson, (8 Dana, 289,) “ is made for the times, and will be made or modified by them. The expansive and still expanding genius of the common law should adapt it here as elsewhere to the improved and improving conditions of our country, and therefore railroads and steam cars, the offspring, as they will be the parent, of progressive improvements, — 249 — should not in themselves be considered nuisances, although in ages that are gone they might have been so held, because they would have been comparatively useless, and therefore more mischievous.” [Jefferson General Term, July 3, 1854. This disposes of the whole case, excepting the second ground of complaint, which is a claim to recover for an alleged neglect to maintain a crossing over the road east of Washington street, upon the farm land of the plaintiff, whereby it is claimed he lost the use of some six acres of land prior to the year 1850, when the company constructed a bridge at the point in question. In respect to this claim, the judge before whom the cause was tried has found, as a matter of fact, that .the plaintiff has not made a case which entitles- him to damages, for the neglect to maintain a crossing on his said lands. It is quite doubtful whether the assumption in the inquisition of the appraisers, that the railroad company would construct across said railroad a suitable crossing place, imposed any obligation upon the company to construct the work in question; but if this were so, the substituted arrangement and agreement of April, 1851, seems to have been entered into by the company, and accepted by the plaintiff, as a full satisfaction and discharge of any obligation which they might have been deemed originally to have assumed. In either aspect the finding of the court would be sustained, and no relief can be justly claimed on this ground. The judgment of this court at special term is accordingly affirmed. Hubbard, Pratt and Bacon, Justices.]