New York & Harlem Railroad v. Forty-second Street & Grand Street Ferry Railroad

Peckham, J. The objection as to the legal passage of the act, under which the defendants claim is sufficiently answered on the point as to which it was assailed. So far as any right or claims of the city, or of the plaintiffs, through the city, are concerned, we must regard them as conclusively settled by the Court of Appeals in the case of The People v. John Kerr et al. (25 How. Pr. 258; 27 N. Y. Rep. 188.) So far as the proposed action of the defendants would be injurious to the plaintiffs, by competition or otherwise than by directly taking the property of the plaintiffs, we must regard the question as settled by the case of The Charles [287] River Bridge v. Warren Bridge, in the Supreme Court of the United States, and also by the clause of the plaintiffs’ charter, reserving to the state the right to alter or repeal their charter. (Sherman v. Smith, 1 Black, 587.) The case, then, must turn on the one question, whether the running by the defendants of a track on either side of the plaintiffs’ track is such an actual taking of the property of the plaintiffs as cannot be done without compensation ; for, though there may be some question- whether the crossing of the plaintiffs’ track would not be such a taking as would require compensation, yet no such question is raised by the hill and answer or the papers on this motion. There is very little force, I think, in the objection that it is proposed to lay the defendants’ track so near to the plaintiffs as to injure or practically interfere with their running. The track proposed is the same distance from the plaintiffs’ track that the plaintiffs’ tracks are from each other, viz. five feet. The interest which the plaintiffs have in Fourth avenue is a right of way ; their franchise consists in' their right to lay and use exclusively a railroad, subject to the duty of running public cars thereon. They have no control or interest whatever in that part of Fourth avenue not occupied by their own road, except that common to the rest of the community, i. e. that it shall be kept free and clear for public use. All and any persons have a right to pass along said street. They cannot stop and obstruct it. The crowd of passers may be so great as, in itself, to be an obstruction, yet, so long as it is a moving crowd, whether of individuals or vehicles of any description, it is a legal use of the street. Were the defendants, then, about to run any number of omnibuses, or other ordinary wheeled vehicles, the plaintiffs could not complain. The injury to their own road might be as great or even greater than that which may accrue from the proposed action of the defendants, and yet, so long as their action was not malicious, it cannot be pretended that the plaintiff would have a right to complain. [288] [New York Special Term, October 28, 1864. This shows that the consequence of which the plaintiffs complain, i.. e. difficulty of access to their cars, may exist, and the plaintiffs have no cause of action ; in other words, the fact may exist, and be no wrong. Can it, then, be claimed, that that, which, if caused by one means, is not wrong, becomes a wrong on being effected by another means ? The use of a city street by a railroad for running public cars, has been decided to be a public use, the exclusive right to the track being controlled by the public right to the cars, that being, as the running of the defendants’ cars would be, but an exercise by the public of the public right of way. The cars will not run, unless in obedience to the public wants, for, otherwise, they would not pay. Should they do so, for the mere sake of malicious annoyance to the plaintiffs, other questions would arise. If, then, after the running of the plaintiffs’ road, the public retained a right to the use of the res't of the street, as a public street, and for public use, and if this proposed use by the defendants be, as has been decided, a public use, the plaintiffs have suffered no infringement of their rights or property, and the injunction must be dissolved, with, $10 costs. Pecham, Justice.]