f or H Wr ty'% DOCUMENT NO. XXIII. ,J BOARD OF ASSISTANTS. OCTOBER 8, 1832. Report of the Comptroller, and Opinion of the Counsel of the Corporation, on Construction of the Law relative to Roads. Ordered to be printed, and referred to the Law Committee. John W. Richardson, Clerk. REPORT OF COMPTROLLER, On Construction of the Law relative to Roads. The Comptroller respectfully represents to the Common Council— That in a recent interchange of opinion, on the “Law creat¬ ing a Street Commissioner’s Department, &c.” he discovered for the first time, that the Street Commissioner and himself construed a portion of the Law essentially different j so much 13 1 Doc. No. 23.] 98 so, indeed, as in his judgment, to render the interpretation of the Common Council indispensably requisite. The Street Commissioner is of opinion that the 34th and 35th sections of the Law of 1827, which commit the whole direction and control of the Roads to the Road Committee have never been annulled, but do now continue in full force and effect—that therefore the Law of October 5th, 1831, so far as it relates to Roads, is entirely inoperative on his De¬ partment ; and consequently that his approval of the bills for work done on the Roads, is a matter of mere form ; involving him in no personal responsibility for their accuracy, in any point of view whatever. He enforces the belief that such has been his construction of the Law, by alleging the fact, that he was not aware of the employment of the men, the number employed, the price to be paid, nor the extent to which the work was to be carried on. He further informs, and desires it to be communicated to the Common Council, that his construction is in conformity with the interpretation of the Counsel of the Board, with regard to the Third Avenue. The preceding having been submitted to and approved by the Street Commissioner, the Common Council are thus fairly put in possession of that officer’s views of the subject. The Comptroller having arrived at, and acted on conclu¬ sions diametrically opposed to the foregoing, he feels it in¬ cumbent on him to avail of the first occasion to submit these adverse opinions to the Common Council; and injustice to himself to show, that if the result of his investigation of the matter, be not the true and legitimate meaning of the Law, it is at least reasonable. The “ Law for the appointment of a Street Commissioner,” &c., &c., passed 14th of May, 1827, section 34th, says, “ That the Street Commissioner shall be the Overseer of the Roads or Highways in the said City, and it shall be his 99 [Doc. No. 23. kO tr duty to regulate and keep the same in repair. 55 Section 35th, says, “ That a Committee of the Common Council shall, from time to time, he appointed, to consist of five persons, to be denominated the Road Committee ; whose duty it shall be to examine the state of the Roads or Highways in the said City, at least once in every month, and to give the said Over¬ seer, together with such other persons employed on the said Roads, from time to time, such directions as they may think proper, relative to the regulating and keeping the same in repair. 55 The “ Law creating a Street Commissioner’s Department, &c., approved October 5th, 1831, 55 section 3d, makes it “ the duty of the Street Commissioner to take the general charge of viewing and determining, from time to time, whether any, and what improvements or repairs are neces¬ sary, and can be made to any of the streets or roads, and to report the same to the Common Council, together with the best mode of doing the same.” The Comptroller is of opinion that the 34th and 35th sec¬ tions of the Law of 1827, are effectually abrogated in a variety of ways for example, when different sections of the same law, or laws of different dates come in collision, it is believed to be a safe, and indeed the generally adopted rule, to construe the last enacted, as the governing section or law, as the case may be. Now apply this principle to the laws in question, and the result must necessarily be, the com¬ plete annulment of the 34th and 35th sections referred to. Again—those sections vested with power, and enjoined duties on a Committee, which is not now known, either by name or number, and of course cannot be charged with executive duties. Again—the 6th section of the present Law declares, “ That all the Laws and Ordinances heretofore enacted by the Mayor, Aldermen and Commonalty of the City of New York, defining the duties of the Street Commissioner, or in Doc. No. 23.] 100 any way relating to the same, which are not inconsistent with the provisions of this ordinance, shall not be constructed as repealed, modified, or affected thereby ; but shall continue and remain in full force.” Now, it is confessedly difficult to imagine what more natural inference can be drawn from the foregoing, than that those Laws or Ordinances which are inconsistent with the pro¬ visions of the last ordinance, shall be construed as repealed , &c. But further—the 21st section of Amendments to the Charter, requires that “ The executive business of the Cor¬ poration of New York shall hereafter be performed by distinct Departments, which it shall be the duty of the Common Council to organize and appoint for that purpose.” It will doubtless be observed that this is imperative , and the Common Council pursuant thereto, did, on the 5th October, 1831, create this executive department, and charged it with the very duties previously performed by the Road Committee under the former organization of the Corporation ; but with this difference as to power—that of the Committee was plenary, that of the Department is limited to cases requiring only slight repairs; all else is required to be done by con¬ tract, and through the Street Commissioner, whose duties preliminary to finishing contracts, are very particularly de¬ fined in the beforementioned 3d section of the Law; con¬ sequently, the Committees are relieved from executive duties, until they shall be charged with them by a special act of the Common Council, and, of necessity, the responsibility must be with the Head of the Department, else the intentions of the charter, as well as the Law, are completely frustrated— at least, such is the judgment of the Comptroller. Being officially informed by the Street Commissioner, that his written approval of the bills, that have been or may be presented for payment, is to be regarded in no other light than as a mereform y the Comptroller has decided to postpone 101 [Doc. No. 23. any farther payment of such bills for working on the public roads, until he obtains the directions of the Common Coun¬ cil in relation to the same. Respectfully submitted, T. J. WATERS, Comptroller. New York , June 25th , 1832. OPINION. Opinion of the Counsel of the Corporation , on the Comptroller*$ Report , relative to Roads , fyc. I have attentively considered the communication made by the Comptroller to the Common Council, by which it ap¬ pears that a difference of opinion exists between him and the Street Commissioner, respecting the duties of the latter offi¬ cer, in regard to the expenditures for work done on the Roads. The principal point of disagreement appears to be, whether the 3oth section of the Law for the appointment of a Street Commissioner, passed May 14th, 1827, is still in force. By this section it was ordained, that a Committee of the Common Council should be appointed, to consist o (five per¬ sons, to be denominated the Road Committee , whose duty it should be to give the Street Commissioner (as Overseer of Roads,) and all others employed on the Roads, such direc¬ tions as they might think proper, relative to the regulating and keeping the same in repair. The whole subject was undoubtedly by this section, placed under the control of such Committeee, and no responsibility rested on the Street Com- Doc. No. 23.] 102 missioner in his capacity of Overseer of Roads, except that of obeying such directions as the Committee might give him, or as might emanate directly from the Common Council, in regard to Regulating Roads, and keeping them in repair. But whatever may now be the duties of the Street Com¬ missioner in respect to Roads, under the Law creating his Department, or any Law amending the same, I am perfectly satisfied that the 35th section of the Law passed 14th May, 1827, is no longer in force ; and that there is no such Com¬ mittee as that bearing the denomination or charged with the duties specified in that section. Independently of all other grounds for this opinion, it would be enough to say that the section must be strictly construed, such Committee must, by its very appointment, consist of five members—neither more nor less, and it must be denominated, the Road Committee. Under the new organization of the Common Council, no such Committee by name or as to number , has been created by either Board ; and if it had, it still would not have been a Committee of the Common Council within the meaning of the section, which had reference to an act of the whole Body as one Board . Two Committees, one from each Board, could not, of their own accord, or by acting in concert, from such a Committee, as is contemplated by that section, nor can this difficulty be got over by any latitude of construction founded upon what might appear to be the reasonableness or convenience of the matter. The act to amend the charter, passed in 1830, required that the executive business of the Corporation, should there¬ after be performed by distinct departments, and made it the duty of the Common Council to organize and appoint such departments for that purpose. The object of this provision was to take away from Committees, and transfer to executive officers, duties theretofore exercised by the former ; and the Common Council in obedience to it, passed laws creating 103 [Doc. No. 23. distinct departments for the performance of such duties ; among which was the law creating the Street Commissioner’s Department, and prescribing his duties. Whether that law be perfect in its details or otherwise, it can hardly be doubted that the Common Council intended by it, to comply with the charter, and to invest the Street Commissioner as the head of a department, with the exective powers respecting roads formerly entrusted to the Road Committee. The duty of the Street Commissioner in respect to roads, is contained in the third section of that law, the greater part of which is an exact copy of the third section of the old Law of 1827 : and the substance of all that is new in it in refer¬ ence to Roads, is, that it is made the duty of the Street Com¬ missioner to advertise for estimates in constructing roads, and to report such estimates to the Common Council, (since al¬ tered to the Committee on Roads and Canals,) previous to finishing contracts. In all cases requiring slight repairs, the section contemplates that the expenditure may be made with¬ out advertising for estimates or making contracts. By the last sentence of the section, the Street Commis¬ sioner is required to countersign all bills which in his opinion are correct, for building or repairing the public wharves or piers, and which are certified by the Superintendent of Wharves and Piers ; and to control the expenditures connected with lands and places; but this does not appear to have any refer¬ ence to bills or expenditures for work done on roads. It would appear, therefore, that the law creating the Street Commissioner’s Department, intended that all work in con¬ structing roads, should thenceforward be done by contract, to be made by the Street Commissioner ; and the agency of that office in respect to such contracts, as well as in cases of slight repairs, necessarily requires that he should approve of the bills, and that such approval should not be a matter of mere form involving no responsibility. But I suspect the Doc. No. 23.] 104 difficulty which has occasioned the Comptroller’s communi¬ cation, arose upon bills for work done on the Third Avenue, which was commenced before the passage of the law creating the Street Commissioner’s Department, and which has been continued since without reference to any change in the Law: and as mention is made in the Comptroller’s communication, of an opinion attributed to me in regard to the Third Avenue, I beg leave to state, to the best of my present recollection, I did sometime since say, probably to the Street Commissioner, that if previous to the creation of the Street Commissioner’s Department, a resolution had been passed in Common Council, directing one of its Committees to cause that Avenue to be finished, and the work was going on, the Law creating the Street Commissioner’s Department, or any law pre¬ scribing a different rule in regard to the working of Roads generally, should not be considered as applying to the work doing on the Third Avenue, until the powers of such Com¬ mittee had been rescinded by an express resolution for such purpose, and even then, that all contract previously made would be binding, although the work had not yet been done, whether estimates had been advertised for or not. I have no recollection of having ever expressed any opinion but the above, which could have been supposed by the Street Com¬ missioner to have a bearing upon the matter at issue between him and the Comptroller. Upon the whole, I think the Comptroller has, in his com¬ munication, taken a correct view of the duties intended to be put upon the Street Commissioner, by the law creating his department, whatever may be the difficulties in performing them, as respects the roads which had been commenced, but were unfinished when the law was passed. R. EMMET. DOCUMENT No. 39. BOARD OF ALDERMEN, DECEMBER 30, 1839. Report of the Committee on Roads and Canals , in favor of granting permission to the Harlaem Rail Road Company to lay their rails through Manhattan street to the Hudson River. Laid on the table and ordered to be printed . THOMAS BOLTON, Clerk. The Committee on Roads and Canals, to whom was re¬ ferred the annexed petition of the Harlaem Rail Road Com¬ pany, for permission to carry a branch of their road through Manhattan street to the Hudson River, at Manhattanville, respectfully REPORT: That the original route for the branch of the said road was through One hundred and twenty-fifth street to the Hud¬ son River; but that in consequence of the elevated character of the ground through which One hundred and twenty-fifth Doc. No. 39.J 420 street runs at the river, it was found impracticable and inex¬ pedient to approach the river through that street, and in con¬ sequence the Rail Road Company made application to the Legislature in 1836, to change the route at the Ninth avenue, by taking Manhattan street, which application was granted, provided the consent and approbation of the Mayor, Aider- men and Commonalty should be obtained. The Company therefore ask permission to carry a branch of their road as aforesaid. The Committee have fully considered the application, and believe that the improvement proposed will prove highly ad¬ vantageous to the citizens of Manhattanville. They are in favor therefore of the proposition, and recommend the adop¬ tion of the following resolution : Resolved , That permission be, and the same is hereby granted to the Harlaem Rail Road Company, to extend a branch of their road by double track, from the intersection of the Ninth avenue and One hundred and twenty-fifth street, through Manhattan street to the Twelfth avenue, and through said avenue to One hundred and Thirty-third street and the * Hudson River, under the direction of the Street Commis¬ sioner. DANIEL F. TIEMANN, SAMUEL J. WILLIS, JAMES FERRIS. * \ 1 V \ f i i * - I DOCUMENT No. 52. * BOARD OF ALDERMEN, FEBRUARY 24. 1840. * Report of the Street Committee , cm petition of the Harlae7n Rail Road Company , £0 lay their rails in Canal street . Laid on the table and ordered to be printed for the use of the members . THOMAS BOLTON, Clerk. The Street Committee, to whom was referred the annexed petition of the Harlaem Rail Road Company, for permission to lay their rails through Canal street to the Hudson River, respectfully REPORT: That they have taken some pains to obtain information in regard to the views and feelings of those interested in pro¬ perty in the street through which the rails are proposed to be layed, by causing public notice to be given of the propo¬ sition, and requesting all those interested and opposed to the same, to present their objections in writing at the Street Doc. No. 52.] 530 Commissioner’s office, by a certain day, and allowing a suf¬ ficient time to elapse after the period named, to give all a full opportunity of doing so. But one remonstrance has been received, which is hereunto annexed. It is from Henry J. Anderson, owner and lessee of Nos. 63J, 67, 60 and 62 Canal street, who states it to be his opinion that the occupa¬ tion of the street as proposed, will prove a serious injury to the value of the property. The Committee have received a similar remonstrance from the same individual through the Board ; also two petitions in favor of the proposition, nume¬ rously signed by owners and lessees of property in the street, who desire that the rails may be extended through the street, believing that in consideration of its great width, and the increasing business and travel in that part of the city, that they will be productive of great convenience to the citizens and benefit to the property. The Committee are of opinion, that the rails, if properly laid down, cannot be of any possible inconvenience or an¬ noyance to those travelling the street, either on foot or in car¬ riages, or disadvantageous to property ; but on the contrary, must confer advantages upon those residing in that section of the city, by providing them with a safe, pleasant, and cheap conveyance to and from their places of business in the lower part of the city. It will also save the city a conside¬ rable sum, (which would otherwise be incurred,) in keeping the middle of the street in good repair, as the Rail Road Company would be obliged to repave it twenty feet in width, and maintain it in ^ood order. CD Under all the circumstances connected with the subject, the Committee are of opinion that it is expedient to grant the Company the privilege which they desire, under certain con¬ ditions : the first of which is, that the tracks shall be laid down with double iron, like those in Centre street, and that the twenty feet in width of pavement, in and about the rails, shall be done with wood; in which case the iron rails can i be let into the wood in such manner as to cause no possible 531 [Doc. No. 52. obstruction to the ordinary travelling. The Committee also recommend that the Company shall not proceed to lay their rails in Canal street until they shall have laid their branch railway through One hundred and twenty-fifth street and Manhattan street, to the Tenth avenue, as required by their Charter. The Committee submit for adoption the following resolu¬ tions : Resolved , That permission be, and the same is hereby granted to the New York and HarlaemRail Road Company, to lay a double track of rails through Canal street, from Centre street to the Hudson River, provided that the same be laid with double iron like those in Centre street; and pro¬ vided that twenty feet in width of the pavement, in and about the rails, be paved with wood, at the expense of the Com¬ pany. The said Company not to avail themselves of the permission hereby granted, by laying their rails, until they shall have completed their branch railway through One hun¬ dred and twenty-fifth street and Manhattan street, to the Tenth avenue. Resolved , That the laying of the rails and the pavement, be done under the direction of the Street Commissioner. C. S. WOQDHULL, DANIEL F. TIEMANN. • . - • t « N . 0 ' : ' • - ' - « ' . ' .. r \ REPORTS OF THE Committee on Wharves, Piers and Slips^ IN RELATION TO / i INCREASING THE RATES OF WHARFAGE, With a Communication from the Comptroller, And Correspondence with the Chamber of Commerce on the same subject. . - . . . . ■ - 1 s*r ^ - , i ... _ ' ’ ' . g; Hi ' i 11 * V . DOCUMENT No. 54. BOARD OF ALDERMEN, FEBRUARY 24, 1840. Opinion of the Counsel as to the right of the Harlaem Rail Road Company to construct and use their rails in the Public Streets of the City . Laid on the table and ordered to be printed for the use of the members . THOMAS BOLTON, Clerk. Resolved , That the Counsel of the Corporation report to this Board his opinion upon the right of the Common Council to permit the Harlaem Rail Road Company, or any other chartered company, to use the centre of the public streets for private purposes and individual gain, so as in any respect to abridge the use of the public therein. By Elijah F. Purdy. OPINION. The annexed resolution requires my opinion to be given “upon the right of the Common Council to permit the Har- Doc. No. 54.] 552 provided they should restore the street thus intersected in a sufficient manner not to have impaired its usefulness—to con¬ struct and use their rail way across or along any of the streets or avenues, as designated on the map of the city, by the con¬ sent of the Mayor, Aldermen and Commonalty of the said city, who are thereby authorized to grant. permission to the Company to construct their rail-ways across or along said streets or avenues, or prohibit them from constructing the same. And it is made lawful for the Company to fix and re¬ gulate their tolls and charges for the transportation of pro¬ perty or persons on the said road. By an ordinance passed December 22, 1831, the Corpora¬ tion authorized the Rail Road Company to lay down their rail-way salong the Fourth avenue, from Twenty-third street to the Harlaem River, and a branch thereof along One hun¬ dred and twenty-fifth street to the Hudson River—with the jiroviso that if it should at any time appear to the Corpora¬ tion that the said rail-ways, or any part thereof, should ob¬ struct the future regulation of the city, or the ordinary uses of any street or avenue, (of which the Corporation should be the sole ’judges,) the Rail Road Company should forthwith provide a remedy for the same ; and if required, replace the street or avenue in as good condition as it was before the said rail-way was laid-down. By the Act of April 25, 1831, the Charter of the Harlaem Rail Road Company was amended so as to allow them, with the permission of the Corporation, to extend their rails along the Fourth avenue to Fourteenth street, and through such other streets as the Corporation might, from time to time, per" mit—provided that no carriage or vehicle should be pro¬ pelled at a greater speed than at the rate of five miles an hour, in any street of said city below Fourteenth street. By an ordinance of the 10th May, 1832, the Corporation consented, “ so far as their rights extend^ that the said Company might continue their rails southerly to Prince street, subject to the same restrictions as to the other part of the t 553 [Doc. No. 54. road, and provided that the rails be laid “ so as to cause no impediment to the common and ordinary use of the streets for all other purposes.’' On the 4th May, 1837, a like consent was given for the Company to extend their rails to Walker street. And on the 4th May, 1S38, a further like consent was given to extend the rails through Broome and Centre, to Chatham street. A memorial is now presented on the part of the Company, for permission to continue their rails from Centre, through Canal street to the Hudson River, which has given rise to the present inquiry. It thus appears that the Legislature after first authorizing the Company to use, for the purposes of their road, (the route of which was to be approved by the Corporation.) such lands as they might purchase, or pay for by appraisement, empowered the Company to extend their rail road through such of the streets in the City of New York, as the Corpo¬ ration might from time to time permit. Have the Legislature of the State and the Corporation of the City, combined, the power to grant the authority con¬ ferred by the Acts above referred to ? The streets and highways in the City of New York, may be divided into two classes, one including such of the an- cient streets as were in use prior to the passage of the law of 1S07, (30 Sess. Chap. 115,) and the other those which have been laid out under the provisions of the last mentioned Act. As to the first class, there being no statutory provision vesting the fee in the Corporation, but only authorizing the land to be converted to and used for a public highway, (Sess. 30, Chap. 61, Act March 21st, 1789.) >hey are governed by the rules of law applicable to other highways. These rules are that the fee to the centre of the road or street, be¬ longs to the owner of the adjoining ground, and that the public have only a right of passage. This is the acknowledged doctrine of the common law, Doc. No. 54.] 554 and is sanctioned by the decisions in our own state, and in others of the Union. (1 Burrows. 143 ; 19 Wend., 675 ; 11 Wend., 502 ; 8 Wend., 107 ; 1 Wend., 270 ; 1 Cowen, 238 ; 6 Mass., 456; 1 Pick., 122; 1 Conn., 105 ; 1 Yeates, 168; 9 Sarg. & Rawle, 31; 1 New Hampshire, 16; 3 Kent’s Comm., 432.) This doctrine is carried so far by the autho¬ rities above cited, that the adjoining owners are held to have the exclusive right to the soil, while the public have only an easement or right of way—and that being such adjoining owners, they may maintain ejectment for any encroachment upon the road, or trespass against any person who digs up the soil of it—and that they may have every use and remedy, consistent with the right of passage in the public and with police regulations. As to the other class of streets, laid out under the law of 1807, and the revision thereof of 1813, (2 R. S., 414,) on the confirmation of the Commissioners’ report, the Corporation become seised in fee of the land required for the streets,— "in trust nevertheless that the same be appropriated and kept open for a public street forever, in like maimer as the other public streets in the said city are , and of right ought to be^ The streets last mentioned are opened by levying an assessment for the value of the land taken, and for the ex¬ penses thereof, upon the owners of the adjoining and con¬ tiguous property. The Corporation take the fee; but the owners pay for it. While therefore, the public at large have the right of using the street, because of its character as a common highway, the individual owners from the inherent right, resulting from their purchase, and from the intrinsic character of their property, have a special interest in the street itself, as incident to their ownership of the adjoining land, and deprived of which, the land itself would become comparatively valueless. The streets in our city are opened, not only to subserve the ordinary uses of the public, but also and more especially for the benefit of those who thereby ob- 555 [Doc. No. 54. tain a front upon the street, and at whose charge such street is made. In a very late case decided in Kentucky, (8 Dana, 294,) and particularly referred to hereafter, Chief Justice Robert¬ son, whose opinions are of acknowledged- authority, says, “ The title to lots, contiguous to a public street, carries with it certain services and easements, almost indispensable, and as inviolable as the property itself, and the owners have a peculiar interest in the street, to which neither the local nor general public can pretend—a private right, of the nature of an incorporeal hereditament, legally attached to their con¬ tiguous ground, and without which, the property never would have been bought by them.” The laws of our own State fully acknowledge this right, by providing that on closing a public street, the adjoining owners shall be paid the damages which they thereby sus¬ tain. We have thus seen, that as to the ancient streets and roads of the city, the fee remains in the adjoining owners, subject to the right of passage in the public, and to police regula¬ tion. That as to the new streets, the fee is vested in the Corpo¬ ration, subject to the trust of “ appropriating and keeping them open, in like manner as the other public streets are and of right ought to be”—and that in this trust, the adjacent owners have a special property. The Constitutions of the United States and of our own State, provide that “ No person shall be deprived of his pro¬ perty without due process of law, and that private property shall not be taken for public use without just compensa- tion .” This provision is founded in natural equity, and is indis¬ pensable for the protection of private property. In 11 Wend., 151, the Supreme Court say that “the Con¬ stitution, by authorizing the appropriation of private property for public use, impliedly declares that for any other use, pri- Doc. No. 54.] 556 vate property shall not be taken from one and applied to the private use of another. It would be in violation of natural right, and of the spirit of the Constitution.” And in 19 Wend., 676, they say, “Our Constitution means that the Legislature should have no power to deprive one of his pro¬ perty and transfer it to another, by enacting a bargain be¬ tween them, unless it be in the hands of the latter, a trust for jmblic use Is the appropriation of public streets to the uses of the Harlaem Rail Road Company, within the meaning of the Constitution, the taking of property for u public use ?” In the case of Bloodgood, vs. The Mohawk and Hudson Rail Road Company, 18 Wend., 77, the Court of highest re¬ sort determined that the Legislature of this State have the constitutional power to authorize the taking of private pro¬ perty for the purpose of making rail roads or other public improvements of the like nature, whether such improve¬ ments be made by the State itself, or through the medium of a Corporation, or Joint Stock Company, on making ample provision for a just compensation for the property taken, to the owners thereof. The decision of this case was founded on the belief that rail roads, when designed for travelling and transportation, are great public benefits, and that the right of eminent do¬ main remained in the people, in their sovereign capacity, to be exercised for the public benefit, either directly, through the immediate officers of the government, or indirectly, through the medium of corporate bodies or individuals ; and that if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the Legislature to determine, whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain . and to autho¬ rize the interference with the private rights of individuals for that purpose. The highest authorities of this State, having so deter- 557 [Doc. No. 54. mined, it is too late to dispute the power of the Legislature in relation to the present question. It remains, however, to be considered whether the power has been lawfully exercised in the present instance. The Charter first provides that the Company shall take possession and use such lands only as they shall obtain by donation or by purchase ; and then provides that nothing therein shall be construed to authorize the Company to use any of the public streets, whether opened or unopened , without the permission of the Corporation, which permission they are thereby authorized to grant. As to the streets as yet unopened, (and the whole line of the Fourth avenue down to Twenty-eighth street, is as yet so,) the Corporation have no possible interest therein. It is all private property ; and yet having been laid out by the Commissioners under the law of 1807, and forming a part of the city plan, if the owners of real estate, bounded thereon, have sold and conveyed lots in conformity to such plan, such sale would amount to a dedication of the streets for public use ; and the title to such streets, although as yet unopened, could, thereafter, only be sold, subject to the ease¬ ment of a perpetual right of way, extending to every pur¬ chaser from the original proprietor of lots in the same tract. This was so decided by the Court for the Correction of Errors, in the case of Wyman vs. the Mayor, &c. of New York. 11 Wend., 486. As to the Fourth avenue, therefore, the right of property belongs to the individual owners of the fee, and to those, who, under the previous decision, have'acquired a right of way over it, and the Corporation have no title whatever to it any more than to the adjacent lots. The consent of the Corporation, however, by the ordi¬ nance of December 22d, 1831, extended to this unopened avenue. The Company did not think such consent sufficient; but, as is understood, have obtained by donation or purchase from 2 Doc. No. 54.] 558 the owners of the fee, the right to use the centre of the Fourth avenue for their rail road. Their purchase must remain subject to the contingency of the right of way above alluded to, and of the right of the public to have the avenue opened according to law. As to the other streets, through which the rails are con¬ structed, the Company have obtained the privilege neither by donation, nor by purchase, from the individual owners ; but rely entirely, for their right, upon the consent of the Corporation, under the authority of the Legislature. The streets of a city are intended for all the ordinary uses of the public, in the ordinary mode of travel and convey¬ ance. For such purpose, they were opened and intended, when the right of the public, and of the adjacent owners were acquired, by the process of opening. The application of them to a rail road was certainly not then contemplated. Can they, then, be diverted to a use entirely different from their design, without the consent of the parties in interest? Under proper Legislative regulation, Rail Road Compa¬ nies are, undoubtedly, for the public benefit. When they are considered so, however, it is in view of their providing themselves with an appropriate highway of their own, where all may travel who choose, at certain rea¬ sonable and fixed rates of toll. In such cases, they do not interfere with the public use, but promote it. If the public highways, for the ordinary and necessary travel of the people, are to be diverted to the use of Rail Road Companies, and especially without purchase , a very different question is presented. I cannot but consider that a street or road, occupied by rail-ways and used for a rail road, so far as its space is thus required, of necessity, ceases to be a common highway—be¬ cause there is no reciprocity of accommodation. How soon would our great and most convenient public thoroughfares become common nuisances, if every person 559 [Doc. No. 54, travelling on them should mark out for himself a straight line, and keep on its track, without any deviation ? If such a course should be pursued, one third part of those who now travel them could not be accommodated. Is it a sufficient answer to say that it is only allowed for the purposes of a rail road ? The public streets are designed for the common use of and you cannot confine its use to any favored mode of con¬ veyance, without destroying its character of a public tho - * roughfare . Nor is the answer that it is all for the public accommoda¬ tion, sufficient; because a part of that public is incommoded, and without the plea of necessity, which appertains to the setting off of sidewalks, or the erection of bridges,,&c. In the case of the King, vs. Russell, 6 East., 427, it was held that the primary object of a street was for the free pas¬ sage of the public, and that any thing which unnecessarily impeded that free passage was a nuisance. And, with regard to the Harlaem Rail Road, how is the public benefited? The speed below Fourteenth street is limited to five miles per hour, which is permitted to all other carriages, and the fare is not less than in other modes of con¬ veyance. The benefit can only arise from the advantage over all others, in the free and unobstructed use of the space allotted to them, giving to them, at all times, a clear passage and consequent greater facility of travel, over all others. This benefit, however, is derived from the public , and ne¬ cessarily, at their expense, while the Company enjoy the advantage arising from a more economical use of power, and a saving of time, from the unobstructed right of way which .they acquire. The advantages of rail roads are mainly supposed to con¬ sist in furnishing the facility of rapid travelling to and from places, that are distant, and of transporting produce to mar¬ ket. Such were the instances before our Courts, when they decided them to be of public benefit, and such may have Doc. No. 54.] 560 been the original design of the Charter of the Harlaem Rail Road Company. The question is now presented, more in the light of constituting them an omnibus line through the city; and it will be a question for the consideration of the Common Council, whether such an use was within the con¬ templation of the Legislature, and whether the public inter¬ ests will be thereby subserved. The course of legislation, with reference to the principal rail roads in our State has been, to require that they shall do no prejudice to existing highways. If there has been any possibility of their coming in contact with the canals, it has been provided that they should only cross the same in such manner as not in any degree to obstruct the transportation thereon, or impair their usefulness : and in the provisions of several of the laws, relating to the canals, if they neces¬ sarily interfere with the route of any road, the Canal Com¬ missioners are directed to change the route of such road, and to make a new one for the public use, before the canal shall be commenced on the line of such road. On the 11th of May, 1835, the Legislature authorized the Commissioners of Highways to consent that rail roads might be constructed across or on any road or other public high¬ way, provided that the usefulness of such roads or highways should not be impaired; but, in all such cases, the rail roads were required to be constructed only “ upon land pur¬ chased for that purpose This, I deem to be a clear expression of the sense of the Legislature, as to the conflicting interests of rail roads and ordinary highways, and of the respective rights of individuals and of the public therein. The association owning the rail road must purchase the land: then, and then only, individual claim of property being satisfied, can the Commissioners of Highways consent to the appropriation of the road. In the case ex parte Jennings, 5 Cowen, 525, a claim for damages was made on the part of persons owning property 561 [Doc. No. 54. bounded oil a stream, for diverting some of the waters of Chitteningo Creek to the use of the Erie Canal. The Court say, “ individual property cannot be taken, or which is the same thing, individual rights impaired , for the benefit of the public, without just compensation. What¬ ever interest the claimant has, he is to be paid, for , though the individual may have only a limited interest, or a right merely equitable. “It cannot be allowed, because the interest is merely inci¬ dental to or issuing* out of the land, that therefore the owner shall be divested of his right, without compensation. “ Neither the State nor any individual have the right to render a stream less useful or valuable to the owner of the soil adjacent to it, without full recompense.*’ I have been referred, in behalf of the Company, to the case of the Lexington and Ohio Rail Road, decided in the Court of Appeals in Kentucky, 8 Dana, 289, which is the latest case on this subject—and being an important one, will be referred to at some length. By an Act of the Kentucky Legislature, the Lexington and Ohio Rail Road Company was incorporated with au¬ thority to construct a rail road from Lexington to a point on the Ohio River, and to use any land for that purpose, by ob¬ taining the consent of the owners, or by paying the value thereof, to be assessed by a writ of ad quod damnum . Un¬ der this authority, the Company, by the consent of the Cor¬ poration of the City of Louisville, extended the location of their road, by the laying of flat rails through Main street in that city, with permission to run their cars by steam, at the rate of not more than six miles an hour; but they did not obtain the consent of the individual owners on the street, nor did they have any estimate of damage awarded. An in¬ junction was granted on the application of certain citizens of Louisville, alleging that the rail road through the city was a nuisance and unlawful encroachment on their private rights of property. Doc. No. 54.] 562 Ten witnesses were sworn on the part of the complain¬ ants, who testified that the rails obstructed the free and con¬ venient public use of Main street, and that the locomotives alarmed horses, and endangered persons travelling on foot, or in carriages, and they all agreed that the rail road had the effect of diminishing the value of real estate on Main street, and of injuring the business of those who resided there. On the side of the Company, sixteen witnesses were pro¬ duced, who testified that the rail road itself was no obstruc¬ tion, whatever, to the safe, free and convenient public use of the entire street; that the prosperity of Louisville and the public interest had been promoted by the use of the rail road. None of them considered the use as made of the road, even with steam power , as injuriously affecting the value of property, the productiveness of business, or security of per- / sons on Main street or elsewhere. And most of them were of the opinion that cars propelled by steam, with a velocity not exceeding six miles an hour, were more safe to the pub¬ lic than cars drawn by horses, and were not more perilous and inconvenient than hacks, stages and omnibuses. The Chancellor, notwithstanding the preponderance of testimony, gave his opinion that the case showed a common nuisance, by which the plaintiffs had special damage ; a dis¬ turbance of easements, annexed, by grant, to private estates; of a Corporation abusing the powers arising out of the Act of incorporation, and finally of a disregard of private right, of a vexatious character, and degenerating into a species of irreparable nuisance; and granted a perpetual injunction against the Company. > The decree of the Chancellor was appealed from and re¬ versed by the Court of Appeals, on the ground that the weight of evidence disproved the charges in the plaintiff’s bill. They say, “We do not wish to be understood as deciding that we are satisfied that the use of the rail ways as hitherto 9 v 563 [Doc. No. 54. made in Louisville, was not, in any respect, a nuisance. All that we have decided, or intend to decide, is that the facts, upon which, alone, we have had to adjudicate, do not autho¬ rize the judicial deduction, that a nuisance has been suffi¬ ciently proved. If it shall ever hereafter satisfactorily ap¬ pear, upon other proof, that such use as that complained of, encroaches on any private right, or obstructs the reasonable use and enjoyment of the street, by any person, who has an equal right to the use of it, we shall be ready to enjoin all such wrongful appropriation of the highway.” The Court of Appeals admit that there is no constitutional authority for closing or discontinuing any street, or even for applying it to any public or private use, incompatible with any one of the ends for which such street was established, without first obtaining the consent of the owners of lots thereon , or without making just compensation to them, for any damage which may result to their property, from such occlusion, discontinuance or new application of the street. It thus appears, that the whole question whether the Act of the Legislature and the consent of the Corporation are suf¬ ficient to authorize the Harlaem Rail Road Company to place their rails in the public streets, will depend upon whether the rights of the owners adjoining the streets, through which the rails are constructed, are thereby, in any degree, in¬ fringed or their interests impaired. My opinion is, with reference to the nature of the tenure of such adjoining owners, and of the rights of the Corpora¬ tion therein, that the consent of the Corporation is not suffi¬ cient to confer upon the Company the right of constructing and using the rails in the public streets, without the super- added consent of such owners , or the award of damages for the injury which they may sustain. Such, in my opinion, is the only sound construction of the Company’s Charter. It provides, as we have seen, that the lands taken and used shall be obtained either by dona¬ tion or purchase from the owners. The adjacent owners, in Doc. No. 54.] 564 some cases, are the owners of the fee: and in all cases, they are the owners of a special interest in the street itself, of which they can only be divested in the mode pointed out by the Constitution. If the Charter is to be so construed as not to provide any such means of compensation, it is my opinion that the Charter is void and of no effect. This last conclusion is founded upon the case of Gardner vs. the Trustees of the Village of Newburgh, 2 Johnson’s Ch’y Reports, 162, where it appeared that the Legislature had authorized the defendants to supply the Village of New¬ burgh with water, by diverting a stream running through the plaintiff’s land, providing compensation for the carrying the works through his land, but not for the loss to him of the use of the stream itself and the Court held that the plaintiff had a valid right to the use of the water, and that he ought not to be deprived of it, and that they could not suppose it was intended he should be deprived of it, without his con¬ sent—or without making him a just compensation. That the Act was unintentionally defective, in not providing for his case—that it ought not to be enforced, and that it was not intended to be enforced until such provision should be made. N % Respectfully submitted. New York , February 24, 1840. P. A. COWDREY.