Ingersoll v. Nassau Electric Railway Co. , 96 N.Y. Sup. Ct. 213 ( 1895 )

DYKMAN, J.

The plaintiff in this action is the owner of real property on the south side of Bergen street, between Rogers avenue and Nostrand avenue. The suit is instituted for the procurement of an injunction to restrain the defendant from constructing, operating, or maintaining any surface railroad or tracks through Bergen street, between the avenues above mentioned. Bergen street, between those two avenues, is included in the route of the defendant’s railroad; but there is in that street already a double-track railroad, owned and operated by the Atlantic Avenue Railroad Company, and the defendant has obtained the permission of that company to run the cars of the defendant over the tracks of the Atlantic Company on that block. At Rogers avenue and Nostrand avenue, curved tracks are to be laid to connect the defendant’s track with the track of the Atlantic Company, but the complaint contains no claim of injury from the construction of such connecting track. The action is based upon the constitution and the statute, and the constitutional provision invoked is this:

“No law shall authorize the construction or operation of a street railroad, except upon the condition that the consent of the owners of one half in value of the property bounded on, and the consent also of the local authorities having control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained.” Article 3, § 18.

Section 91 of the act of 1893 (chapter 434) contains substantially the same interdiction.

The complaint alleges that the defendant, in pursuance of the consent of the common council of the city of Brooklyn, is constructing, and preparing to maintain and operate, its tracks or road on Bergen street, between Rogers and Nostrand avenues, and that such construction and operation would irretrievably injure the value of the plaintiff’s property, and infringe his rights. The facts, However, fail to sustain those charges of the complaint, because, as we have seen, the defendant is not constructing, and does not propose or intend to construct or operate, its tracks or road on Bergen street at all. The tracks of the Atlantic Avenue Company are laid there, and we must assume that the consent of the property owners and of the local municipal authorities has been obtained for the construction and operation of that road through Bergen street. All the constitutional and statutory requirements are therefore satisfied. The Atlantic Company may operate its road'in any legal manner consonant with the purposes for which it was organized. It may hire out its line, or it can permit other railroad companies to run their cars over its tracks, according to statutory provision upon that subject. The legal use of the franchises of the Atlantic Company is untrammeled. The defendant does not intend to appropriate Bergen street to any new use. The interests of the locality have been consulted in relation to the construction and operation of the railroad already there, and the street is to be no further obstructed. The-defendant does not intend to lay down or operate its railroad tracks in that street. It is quite conceivable that the right to use the tracks of the Atlantic Company, and operate its road, may be transferred to another company by a voluntary or forced sale; but it will not be contended that any new consents from property owners or local authorities would be necessary; in such a case, to the continued operation of the railroad by a new transferee of the property and franchises of the old company. The right to exercise the franchises of the Atlantic Company became vested upon the procurement of the necessary consents. In re Rochester Electric Ry. Co., 123 N. Y. 351, 25 N. E. 381. The constitutional inhibition under consideration is leveled against the construction and operation of a new railroad without the proper consents, but there is neither a constitutional nor a statutory prohibition against the use of one railroad by the cars of another without such assents. Moreover, the question seems to be set at rest by the decision of the court of appeals in the case of People v. Brooklyn, F. & C. R. Co., 89 N. Y. 75. It was there decided that one railroad company could run its cars over the road of another company without obtaining the constitutional consents. In any view, however, the defendant intends to do nothing of which the plaintiff can com-' plain in this suit. To sustain his action, he must show that the defendant is doing, or intends to do, something in Bergen street that will be of especial and peculiar injury to him or his property. This is not a taxpayer’s suit to prevent waste or injury or a public wrong. It is a private action to restrain the defendant from doing an act in a public street in a great city which is under the control of the municipal authorities for the benefit of the whole people, and in which the plaintiff has no peculiar interest. He does not stand for the community. He must show an infringement of some private right, or, in other words, he must show that the defendant is doing, or is about to do, some act in Bergen street from which he will sustain some injury peculiar to him or his property. Injuries sustained by the plaintiff in common with the whole people cannot be redressed in a private action by him. It already appears that- the defendant has done nothing in Bergen street, and only intends to run its cars in that street over the railroad tracks now laid down and in use. R) change is contemplated, no additional space is to be occupied, and it is impossible to see how the plaintiff can sustain any peculiar injury from the use of the tracks which the defendant proposes to make. The judgment should be affirmed, with costs.

BROWH, P. J., concurs.