New York & Harlem Railroad v. Forty-second Street & Grand Street Ferry Railroad , 26 How. Pr. 68 ( 1863 )

Peckham, Justice.

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 plaintiff through the city, are concerned, we must regard them as conclusively settled by the court of appeals in the case of The People agt. John Kerr and others (25 How. Pr. R. 258).

So far as the proposed action of the defendants would be injurious to the plaintiff by competition, or otherwise than by directly taking the property of the plaintiff, we must regard the question as settled by the case of The Charles River Bridge agt. Warren Bridge, in the supreme court of the United States, and also by the claim of plaintiff’s charter reserving t.o the state the right to alter or repeal its charter. (Sherman agt. 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 plaintiff’s track is such an actual taking of the. actual property of the plaintiff as cannot be done without compensation ; for though there may be some question whether the crossing of plaintiff’s track would not be such a taking as would require compensation, yet no such question is raised by the bill and answer or the papers on this motion. There is very little force, I think, in the objection that it is proposed to lay defendants’ track so near to plaintiff’s as to injure or practically interfere With its running. The track proposed is the same distance from plaintiff’s track that plaintiff’s tracks are from each other, viz., five feet. The interest which the plaintiff has in Fourth avenue is a right of way ; its franchise consists in its right to lay and use exclusively a railroad, subject to the duty of running public cars thereon. It has no control or interest whatever in that part of Fourth avenue not occupied by its 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 plaintiff could not complain. The injury to its 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.

This shows that the consequence of which the plaintiff complains, i. e., difficulty of access to its cars, may exist, and the plaintiff 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 plaintiff, other questions would arise. If, then, after the running of the plaintiff’s road, the public retained a right to the use of the rest 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 plaintiff has suffered no infringement of its rights or property$ and the injuncton must be dissolved, with ten dollars costs.