THE BROOKLYN CITY RAILROAD COMPANY v. FUREY

THE BROOKLYN CITY RAILROAD COMPANY against FUREY. Supreme Court, Second District; Special Term, Dec., 1867. Action.—Summary Remedies against Nuisances. A municipal corporation, authorized to make ordinances for the purpose of regulating city railroad cars, prohibiting nuisances, and preventing and removing obstructions on the streets, is not thereby authorized to interfere, at a specific point, with the tracks or business of a railroad which is established and conducted under a legislative grant. The question whether the tracks and arrangements of the company are within the authority granted by the legislature, is not to be determined summarily by the officers of the corporation, under ordinances giving them supervision of the streets, and power to prohibit and remove obstructions, hut must be determined by a legal or equitable remedy. Motion to continue preliminary injunction. This action, with three others, was brought by the Brooklyn City Rail Road Company, against Robert Furey, the street commissioner, and the corporation of the city of Brooklyn, to restrain the commissioner from interfering with the tracks and turnouts of the plaintiffs’ road, situated at the foot "of Fulton-street, in that city. It appeared that the plaintiffs, who were the proprietors of a horse railroad had, for the accommodation of their business, constructed at the foot of said street, which was also one of the termini of their road, several lines of tracks to the number of eight or more, and upon these tracks the company’s cars were constantly kept standing. Extra lines of track had been laid' for similar purposes, upon the public wharf, extending down to the bulkhead of the pier, in such a manner as to obstruct the wharf for general business. An injunction was granted to prevent the street commissioner from interfering with the tracks, and the company now asked to have it made perpetual. Other facts are more fully stated in the opinion of the court. G. T. Jenks, for the plaintiff. A. MeCue, corporation counsel, for the defendants. [MAJORITY — Gilbert, J.] Gilbert, J. This case involves the question in what mode, and to what extent, the exercise of the franchise of running horse cars, upon the streets of the city of Brooklyn, under legislative authority, is subject to municipal regulation and control. The charter of said city grants to the common council thereof, power to make ordinances for the following, among other purposes, namely: 1. To license and regulate railroad cars. 2. To prohibit and abate nuisances. 3. To prevent and remove obstructions in and upon the streets, &c. ,(Charter, tit. 2, § 13, subd. 4, 9, 17). This enables the common council to protect the public interests of the city, and the proper security of the persons and property of its inhabitants, by preventing the use of the public streets in any way incompatible therewith. But the object must be accomplished by general rules or laws. The power is one of legislation merely, and it cannot be summarily enforced against any apparent legal right (R. R. Co. v. Buffalo, 5 Hill, 211). The ordinances on this subject passed by the common council, confer upon the defendant Furey, as street commissioner, supervision over the streets (Art. 3, §1), and prohibit the obstructing or incumbering any street, and authorize the removal of such obstructions (Art. 3, § 11; Art. 6, § 1). The latter ordinance provides, that it shall not be construed to prevent loading or unloading of passengers from any public or private conveyance, or of vehicles waiting a reasonable time for that purpose. This proviso, however, is only of minor importance in determining the claim of power set up by the defendants. Under the statute and ordinances cited, the defendants claim the right and authority to act summarily, and without, legal process, to prevent the plaintiff from using certain tracks, laid down by them at the termini of their several routes adjacent to the Fulton Ferry, on the ground that they are superfluous, and unauthorized by the legislative act under which they hold and exercise their franchise, and also, to compel the departure of them cars without waiting to take up passengers arriving by such ferry, and also to compel the plaintiffs to change the position of their switch or turn-table at the terminus aforesaid, because it is so near the dock, at the foot of Fulton-street, as to render the use of such dock dangerous. The plaintiffs on the contrary claim the right, and insist, that it is their duty to exercise the privileges and powers, thus assailed, under the aforesaid legislative grant. The existence of this grant is not disputed. The only question in the case relates to its scope and effect. Upon this subj-'ct this court held, at general term, in the case of Central R. R. Co. v. Brooklyn City R. R. Co., that the effect of section 2 of the act of Mar. 23, 1864,—whereby the plaintiffs were authorized “ to construct and operate their railroad over the several routes mentioned in their articles of association,”—was to relieve the company from all dependence upon the common council of the city, for leave to lay down its tracks upon the streets of the city, mentioned in their articles of association, if such consent had not been previously obtained (32 Bard., 363). The summary power asserted by the defendant is essentially judicial. The pretension is, certainly, a novel and extraordinary one. To sustain it, would certainly weaken the constitutional guaranty which protects private property against deprivation, without due process of law. I am of opinion, that the defendants are mistaken in respect to the nature and extent of the powers on this subject with which they have been vested. It is not necessary to define the limits of such powers. It is sufficient to say, that this railroad, being authorized by law, is not per se a nuisance, and that, whether the tracks and appendages thereof, which it is alleged are illegal, have been duly constructed under the authority of the legislature, or are a necessary incident to the franchise granted, are, to say the least, legal questions, which the defendants have not a right to determine summarily in the exercise of a power to abate nuisances, and remove obstructions from streets. They cannot make a thing a nuisance by declaring it to be so, nor can they, in the exercise of the power of regulation, materially impair, or affect the franchise actually granted by the legislature (Davis v. The Mayor, 14 N. Y. [4 Kern.], 524; State v. Jersey City, 5 Dutch., 170). If the evils and abuses which they allege exist, the courts are open to redress them, and they must in executing the public trusts confided to them, seek some legal or equitable remedy. The motion to continue the preliminary injunction, therefore, is granted with $10 costs.