Currier v. West-Side Elevated Patent Ry. Co.

BLATCHFORD, District Judge. The plaintiff" has not furnished any description of either one of the lots referred to in the bill, claimed to be owned by him, but the defendants show that the plaintiff has a deed conveying to him the premises known as No. 201 Greenwich street, being at the northeast corner of Fulton and Greenwich streets, and being bounded, in the deed, on the west by the easterly side of Greenwich street, and on the south by the northerly line of Fulton street. The plaintiff shows no other deed to himself of any premises, and no deed of any portion of the soil of Greenwich street, and the defendants show acts of ownership heretofore exercised by the corporation of the city of New York over the soil of Greenwich street, in front of the premises covered by the said deed. On this state of facts, it must be held, that the plaintiff has failed to make out that any property of his has been taken by the defendants. They have not entered or trespassed in any way upon the premises covered by the deed to the plaintiff. All that they have done in Greenwich street in front of said premises, has been done outside of the lines of said premises. Whatever the presumption might be as to the ownership of the fee of the street, if the plaintiff’s premises were bounded on the west on or by Greenwich street, instead of being bounded, as they are, by the deed, on the west, by the easterly side of Greenwich street, such presumption is rebutted by the language of the deed; and, even if such presumption, in case of a boundary on or by the street, would bo that the fee of the soil of the street was owned by the plaintiff to the centre of the street, that presumpt'on would be rebutted by the acts of ownership shown to have been exercised by the corporation of the city over such soil. The only other question is, the one of a nuisance. If the legislature has authorized the construction of this railway in the manner in which it is being constructed, this corad cannot interfere, by injunction, with such construction, on the ground that it is a nuisance. It is not contended that the actual mode of construction differs from the authorized mode of construction, if any construction is authorized by any valid law; The question, raised by the bill, as to tak [993] ing private property for public use, being out of tie case, tie only other constitutional question raised is, whether the acts in question are void, as containJng a delegation of legislative authority to tlie commissioners mentioned therein. It is claimed that, inasmuch as, by the acts, the defendants have no authority conferred upon them to continue in existence the experimental half mile, or to extend the road, unless the commissioners shall approve, the acts confer upon the commissioners legislative power. On this point, the authority of the case of Barto v. Himrod, 4 Seld. [8 N. Y.] 483, decided in 1853, is invoked. In that case, it was decided, that an act of the legislature in regard to free schools, which declared that the electors of the state should determine by ballot, at an annual election, whether such act should or should not become a law, was unconstitutional and void, as being a delegation of legislative power. In the opinion of Chief Justice Ituggles, it is stated, that the act did not, on its face, purport to be a law, as it came from the hands of the legislature, for any other purpose than to submit to the people the question whether its provisions in relation to free schools should or should not become a law, and that, by one section of the act, it was provided that the act should become a law only in case it should have a majority of the votes of the people in its favor. The difference between the statute in that ease and the acts now under consideration is manifest. In each of the latter, there is an express provision that it shall take effect immediately. Its existence and validity, as a legislative enactment, are not made dependent, in any manner, upon any future event, or upon any action or nonaction, or approval or disapproval, by the commissioners. The continuance of the experimental half mile of railway, after it shall be constructed, and the extension of the road further, are, indeed, made dependent upon the approval of the commissioners. But the enactment of such a provision is no delegation of legislative power. Hundreds of statutes are passed by the legislature, conferring contingent rights on individuals and corporations, dependent upon the doing of certain acts, or the making of certain certificates. In all general laws for the creation of corporations, the individuals who associate to form the corporation are required to file, in a certain place, a certificate, in a certain form, and, unless that is done, there can be no corporation; .and yet, it was never contended, that the making of the creation of the corporation to depend upon the happening of such a future event, although lying wholly in the will of individuals, was a delegation of legislative power. In Corning v. Greene, 23 Barb. 33, decided in 1S36, a statute provided.that the corporation of the city of Albany should file their consent thereto, within a certain time after tlie passing of the same, or the bill should be void,and it was urged,that,as the statute was passed on condition that it should not be a law unless uie corporation consented, it was not a constitutional exercise of legislative power. But it was held, that, as the statute emanated from the legislative will alone, and had an existence from that single source, it became a mere question of expediency when and how it should cease to exist; that, upon that question, the legislature might properly exercise its judgment; and that, as it had exercised and given expression to it in the statute, the statute was not for that reason invalid, and the case was not within the principle of Barto v. Himrod [supra]. In Grant v. Courter, 24 Barb. 232, it was held, that a statute authorizing a town to borrow money, provided the consent of a certain proportion of the tax-payers was first obtained, was a statute in which the legislature imposed a condition or restraint on the exercise of the power conferred, and that the imposing of such condition was as much the unaided emanation of the will of the legislature as the conferring of the power itself. The court say: “An act granting power, to be exercised upon such conditions as the legislature impose, is no delegation of legislative authority, nor is it invalid.” In Bank of Borne v. Borne, 18 N. Y. 38, decided in 1858, it was held by the court of appeals of New York, that a law which, by its terms, was to take effect immediately, but which conferred upon the authorities of a village certain powers which were not to be exercised until the act had been approved by a vote of the inhabitants, was constitutional, and was not a delegation of legislative power, within the case of Barto v. Himrod. Under the settled law of the state of New York, the acts in question are, therefore, not repugnant to the constitution of the state, as containing a delegation of legislative power. The acts being valid, what is being done in accordance with their provisions cannot be regarded as a nuisance, to be interfered with by injunction. It does not appear that any damage which the plaintiff is likely to sustain from the construction of this road will be different, in. kind or degree, from that which will be sustained by every other lot-owner on the streets through which the railway will pass. Under such circumstances, the case of Osborne v. Brooklyn City R. Co. [Case No. 10.597], decided by Mr. Justice Nelson, and Judge Benedict, in the circuit court of United States for the eastern district of New York, in December, 1866, is an authority, binding on this court, for the principle, that, as the plaintiff is not shown to be the owner in fee of any land in Greenwich street over which the railway will pass, he could not maintain this suit, in the absence of proof of special damage, even if it appeared that the defendants had no right to construct the railway in Greenwich street, and were erecting, or about to erect, a public nuisance. The court say, in [994] that case: “They do not propose to enter upon any land of the plaintiff 's, and the damage occasioned by the road to the plaintiff will not be different, in kind or degree, from that sustained by every other lot-owner upon the avenue. It is damage resulting from the depreciation of the value of lots abutting on the street, by reason of a railroad running through it, in front of, but not over, the plaintiff’s land. Now, it is well settled, that damage sustained alike by all the individuals of a large class, furnishes no foundation for an action on the part of a single individual of the class. Lansing v. Smith, 8 Cow. 140; Davis v. Mayor, 14 N. Y. 506. It was incumbent, therefore, on the plaintiff, to show some special damage sustained, or likely to be sustained, by him, differing in kind from that sustained by the neighborhood, to entitle him to ask the interference of the court in his behalf. No such damage is pretended to exist, and its absence is fatal to the plaintiff, on this motion.” The application for an injunction is denied.