Milhau v. . Sharp ( 1863 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] In the present aspect of this case, there are but two material questions presented for consideration:

1st. Had the common council authority to grant to the defendants the right to construct and maintain a railway through Broadway, upon the terms specified in their resolution of December, 30th, 1853?

2d. If that grant was not valid, have the plaintiffs shown such prospective special injury to their rights as entitles them to the relief granted by the Supreme Court?

The first question was distinctly presented to this court and decided adversely to the validity of the grant, in the case ofDavis v. The Mayor, c., of New York (14 N.Y., 506). The position of the defendants' counsel, that the decision in that case is not to be regarded as an adjudication upon this point, may be correct, as the judgment of the court, as finally pronounced, did not necessarily involve that question. Five of the judges, however, declared the resolution void, and I entertain no doubt of the correctness of that opinion. It is not necessary now to decide the question, about which two of the judges in that case differed in opinion, involving the power of the common council, or of the corporation of New York, in any manner, or under any circumstances, to authorize the construction and use of railways in the streets of that city. This case involves, not the general power of the corporation over the streets, but only the question whether the common council had authority to grant the particular privilege which the defendants claim. In determining that question, the provisions of the resolution granting those privileges must be regarded as indivisible. I allude only to the essential features of the plan. The thirteenth and fourteenth articles, which assume to authorize the creation of a joint stock association, and to provide for the transfer and forfeiture of shares, and the general management of the affairs of such association, may be disregarded without touching upon the main objects of the resolution. I therefore lay out of view those articles, as having no bearing upon the question as to the validity of those parts of the resolutions upon which the defendants rely. The provisions giving the right to lay the track of the railway, determining its location, width and manner of construction, the quality of the cars, the times of their running, the motive power to be used, the maximum rates of toll to be charged, the amount of license fees to be paid, and the duration of the privileges granted, are all parts of a single scheme, which are incapable of separation. The whole scheme is valid, or no part of it. These privileges, whether they create a monopoly or not, constitute a franchise. The definition of franchise, by Bouvier, is a "privilege conferred by grant from the government, and vested in individuals." Kent says (3 Com., 458), "The privilege of making a road, or establishing a ferry, and taking tolls for the use of the same, is a franchise." Railroads certainly do not form an exception. (3 Paige, 45; 14 N Y) Monopoly is not an essential feature of a franchise. A corporation with banking powers would be no less a franchise, if there were no law restraining private banking, which alone gives to banking corporations the character of monopolies. The granting of franchises was a part of the prerogatives of the British Crown (Finch's Law, 164), which, on the severance of the colonies from Great Britain, became vested in the people, and no franchise can be created in this State, without authority to create it derived from the people through the legislature. The corporation of New York can grant ferries (or at least could do so, prior to the act of May 14, 1845, on the subject), because that power has been expressly granted to it (1 Hoff. Est., and Rights of the Corporation of New York, 285, 281, 286; Benson v. The Mayor, c., 10 Barb., 223), but neither the corporation nor the common council has been authorized to create a franchise of the character of that described in the resolution under consideration. It follows that the resolution, relating to a subject not within the powers of the body passing it, is merely void.

On other grounds, without reference to its character as creating a franchise, the resolution is equally objectionable. It was not, as has been insisted, an act of legislation, but on the contrary, it possesses all the characteristics of, and was in fact, a contract. It was held to be a contract in the case ofThe People v. Sturtevant (9 N.Y., 273), and but a slight examination of its provisions is requisite to show the correctness of that decision. Prior to its acceptance by the defendants, the resolution was only a proposition, having no binding force whatever. It was certainly not then a law, and since that time the common council have taken no action upon it. Upon its acceptance (if valid), it became a contract between two parties, binding each to the observance of all its provisions. It was something more than a mere executory contract between the parties. It amounted also to an immediate grant of an interest, and, it would seem, of a freehold interest in the soil of the streets to the defendants. The rails, when laid, would become a part of real estate, and the exclusive right to maintain them perpetually is vested in the defendants, their successors and assigns. I say perpetually, because there is no limitation in point of time to the continuance of the franchise, and no direct power is reserved to the corporation to terminate it. Indirectly such termination might, perhaps, be effected, after the expiration of ten years, by making the exercise of the privileges so burdensome through the increase of license fees as to compel their abandonment. This, however, could only be accomplished through the aid of State legislation; and if we assume that the laws of the State in that respect are to remain unchanged, the privileges granted are perpetual. The title to the rails when permanently attached to the land, and such right in the land as may be requisite for their perpetual maintenance, are therefore granted to the defendants by the resolution. The exclusive use of the rails when laid for the purpose for which they were designed, would also, as I think, belong to the defendants. Other people might drive across them, and to some extent along them, with ordinary carriages, but they would have no right to run cars upon them for their own convenience or profit. Any use which the public could have of them, not exercised through the defendants' franchise, would depend upon the fact that the rails would not entirely exclude from the ground they might occupy, the character of a public street. The public might continue to pass over the track (when not in use by the defendants), but that must be done with such inconvenience, more or less, as the rails might occasion. No direct benefit could be derived by the public, or by individuals not interested in the road, from its construction, otherwise than through the use of the cars to be run upon it. Indirectly, other benefits might arise, and possibly of sufficient magnitude to overbalance the inconvenience arising from its construction and use. Whether this would be so or not, is a question the solution of which does not belong to this tribunal, and I should express no opinion in regard to it if I had formed any. So far as that question is involved in the present case, it is already conclusively determined against the defendants, and my present purpose is only to show the importance, the exclusive character, and the permanency of the powers conferred, or attempted to be conferred, upon the defendants by the resolution. If that resolution should be sustained, no power would remain in the corporation to remove the railway after its construction, if it should prove to be a nuisance, or to reduce the rate of fare, if it should be found unreasonably high, or to compel the introduction of any improved method of conveyance, if at any future time such method should be invented, without the consent of the defendants or their successors; and the powers of the corporation over the street in many other respects would be abridged. Those powers were given to the corporation as a trust, to be held and exercised for the benefit of the public, from time to time, as occasion might require, and they could neither be delegated to others, nor effectually abridged by any act of the corporate authorities. (The People v. Kerr,27 N Y, 188; Presbyterian Church v. Mayor, c., 5 Cowen, 538;Coates v. Mayor, c., 7 id., 585; Goszler v. Corporationof Georgetown, 6 Wheat., 593.) Such trust is, in this respect, governed by the general principle, that the duties of a trustee cannot be delegated without express power for that purpose conferred by the author of the trust. (Hill on Trustees, 175, 540, Phil. ed., 1846.)

The defendants' counsel insists that the resolution is not a contract, but a license, revocable at the pleasure of the common council. This position cannot be reconciled with the decision inThe People v. Sturtevant, supra, nor with the principle declared by the Supreme Court of the United States, in the Dartmouth College case (4 Wheat., 519), and other kindred cases, in substance, that grants of such franchises, though made by acts in form legislative, become, when accepted and acted upon, contracts, not subject to be recalled or modified, except in accordance with express reservations contained in the grants. No such reservation is made by the resolution in question, and the privileges which it grants, if within the power of the common council, are already beyond the control of any future act of that body. (Smith's Com., §§ 252, 253.) No reservation of that kind, however, would have been of any service, as it could not supply the defect of power. The resolution is, therefore, void, for the reasons that it purports to create a franchise which the common council had no power to create; to vest in the defendants an exclusive interest in the street, which the common council had no power to convey; and to divest the corporation of the exclusive control over the street, which has been given to it as a trust for the use of the public, and which it is not authorized to relinquish.

The remaining question is, whether the plaintiffs have shown such prospective and special injury to their rights, as likely to result from the construction of the railway, if such construction should be allowed, as to entitle them to the perpetual injunction granted by the judgment appealed from. The material facts found by the judge at the trial, bearing upon this question, are as follows: That the plaintiffs were severally owners and occupants of buildings fronting on Broadway, and of the lots of land upon which said buildings were erected, as particularly set forth in the complaint, and that the establishment of a railroad in Broadway would be specially injurious to said property of the plaintiffs, and other property similarly situated in the same part of Broadway. The defendants do not deny that they design to construct the railway, and threaten to enter upon Broadway and take up the pavement for that purpose, as alleged in the complaint, and they claim to justify their action, in this respect, under the resolution of the common council. There is no express finding either way upon the question (upon which the parties in their pleadings are at issue) whether the plaintiffs own the fee simple of the lands in front of their respective buildings, to the centre of the street, or not. If it should be considered that such title in the plaintiffs was necessary to justify the finding, that the railroad would be specially injurious to their property, this court would be bound to infer, in support of the finding, that that fact was established.Carman v. Pultz, 21 N.Y., 537; Grant v. Morse, 22 id., 323.) It was held in this court, in the case of The People v.Kerr, supra, that the plaintiffs had no title to the lands over which the streets passed, in front of their lots, and therefore could not maintain an action to prevent the construction of a railroad in such streets. It appeared, however, in that case, that the lands in front of the plaintiffs' lots, were taken for the street, under the act of 1813, and it was held that where streets were opened under the act, the fee of the lands was vested in the corporation. In the present case, it appears that all that part of Broadway which is below Union place, was opened as a street prior to 1813, and no evidence is furnished to us of the extent of the interest taken by the corporation in streets so opened. We must, therefore, hold in accordance with the general rule, that the proprietors of adjoining lands own to the centre of the street. It is not found that the plaintiffs' lots were situated below Union Place, but that fact was not questioned by the defendants' counsel, except as to one lot, and if his statements as to that were correct, it would not impair the rights of the parties arising from their ownership of the other lots. Even if it should be held that there is no distinction in respect to the title of the corporation, between streets opened prior to 1813 and those opened since that date, the general rule that the fee is vested in the corporation would not be absolutely incompatible with a remaining fee in adjoining proprietors, under special circumstances, and it must be inferred, in support of the finding, if it could not otherwise be justified, that such special circumstances had been shown. "Judgments are not reversed in this court, because the facts found by a referee, or judge, do not affirmatively sustain them. On the contrary, the judgments of subordinate courts are presumed to be right, unless it appear that a rule of law has been violated, after assuming that the facts have been viewed in the most favorable light which the case will admit of." (22 N.Y., 324, 325.) This rule also forbids an adoption of the inference suggested by the defendants' counsel, that the injury to the plaintiffs' property, mentioned in the finding, might not arise from the obstruction of the street, but from making the way too easy to other parts of the city, or other cause too remote to constitute a ground of action. We can only infer from the finding of an injury, that it is what the law regards as an injury, such inference not being expressly contradicted by any statement in the case. Assuming, therefore, as we must from the case, that the defendants were about to construct a railroad along Broadway, in front of the plaintiffs' buildings, over lands to which they had no title, subject to the easement of the street; and that such railroad, when constructed, would be specially injurious to the plaintiffs' property, the right of the plaintiffs to a perpetual injunction to prevent such injury would appear to be free from doubt. Judge STORY, speaking of private nuisances, which will justify the interference of a court of equity, says: "There must be such an injury as from its nature is not susceptible of being adequately compensated by damages at law, or such as from its continuance or permanentmischief, must be a constantly recurring grievance, which cannot be otherwise prevented but by injunction." (2 Story's Eq., § 925.) In the case of Williams v. The New York Central RailroadCompany (16 N.Y., 97, 111), which was a case similar to the present, except that the railroad had been built, and was in use, and damages were claimed for past injuries, as well as a perpetual injunction against their continuance, it was said, in the opinion of the court: "Although the plaintiff had a remedy at law for the trespass, yet as the trespass was of a continuous nature, he had a right to come into equity, and to invoke the restraining power to prevent a multiplicity of suits, and can, of course, recover his damages, as incidental to this equitable relief." The application in such cases is as appropriate to prevent the injury, where it is threatened, as to arrest it after it has commenced. (Corning v. Lawrence, 6 Johns. Ch., 439; Angel on Highways, § 283; 2 Story's Eq., §§ 825, 826, 924.)

It is insisted by the defendants' counsel, that the finding of the judge at the special term shows that the injury complained of was a public and not a private nuisance, and that, consequently, a private action to prevent or restrain it could not be maintained. It is not an available objection to actions of this nature, that the wrong complained of constitutes a public nuisance, provided the plaintiffs are subjected by it to any special injury, not common to the public, or to large classes of people. (Doolittle v. Supervisors of Broome county,18 N.Y., 160; Corning v. Lawrence, 6 Johns. Ch., 439; 2 Story Eq., § 924; Waterman's Eden on Injunctions, 267, 268.) This principle is not controverted, but it is insisted that the finding that the railroad "will be specially injurious to the property of the plaintiffs, and other property similarly situated in the same part of Broadway," shows the case to be one of public nuisance only, without any special injury to the plaintiffs that "the finding of a special injury to one, and to others similarly situated, is the finding of a common and like injury to all, and that such a common injury is a common or public nuisance." This is not a fair interpretation of the finding at the special term, and is entirely inadmissible under the liberal rule applicable to such cases, laid down in Carman v. Pultz, and Grant v. Morse, above referred to. The fair meaning of the language is, that the railroad would be specially injurious to the property of each of the plaintiffs in severally, and in like manner specially injurious to the separate property of others similarly situated; that although the cause of the injury would be common, the special injury to each would be several and direct, and not merely consequential. This interpretation of the language in question, which is the natural and obvious one when it is read in connection with the other facts of the case, answers the objection of the defendants' counsel, and renders it unnecessary to examine particularly the numerous cases referred to on the argument. In none of them has it been held that an injunction to prevent a public nuisance could not be obtained by a private individual, suffering or likely to suffer a special injury from it not common to other people, under circumstances which would entitle the same person to an injunction if the nuisance were a private one merely. The judgment of the Supreme Court should be affirmed.