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must be granted for public and not for private purposes, or at least public considerations must enter into every valid grant of a right to appropriate a public street for railroad uses.- Fanning v. Osborne, 102 N. Y. 441, 7 N. E. 307.

The right to construct and operate a street railway is a franchise which must have its source in the sovereign power.- Fanning v. Osborne, 102 N. Y. 441, 7 N. E. 305.

N. Y. Const., Art. 3, § 18, does not preclude the legislature from imposing other and further conditions upon which street railways may be constructed, not inconsistent with the provisions of the Constitution.— Matter of Application of Thirty-fourth St. R. Co., 102 N. Y. 343, 7 N. E. 172.

The city of New York is not authorized by its general power over the streets, to grant a franchise for a street railway therein.-Davis v. Mayor, 14 N. Y. 506.

The power to grant a franchise for constructing and operating a street railroad is not vested in the city of New York, but only in the legislature, though under the N. Y. Constitution the consent of the city is necessary before such grant can become operative. The legislature may prescribe the manner in which the city authorities shall act upon the matter, and the requisites of their consent. The local authorities must comply with such conditions, and can impose no other or further conditions.- Beekman v. Third Ave. R. Co., 13 App. Div. (N. Y.) 279, 43 N. Y. Supp. 174; affd. 153 N. Y. 144, 47 N. E. 277.

It is a legislative prerogative to decide whether an enterprise or scheme of improvement be of such public utility as to justify a resort for its furtherance to the exercise of the power of eminent domain. Primarily, the judiciary has no concern in such matters. If the public interest be involved to any substantial extent, and if the project contemplated can, in any fair sense, be said to be promotive of the welfare or convenience of the community, the legislative sanction of such project is a determination from which there is no appeal, and over which no other branch of the government has any supervision whatever. Whether a road will subserve public or private needs, is an inquiry addressed exclusively to the law-making power, whose answer, according to the genius of our government, must be final and irreversible.- Tidewater Co. v. Coster, 18 N. J. Eq. 518.

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The franchises of a railroad corporation are rights or privileges which are essential to its operation and without which the road and its works cannot be successfully operated.- Morgan v. Louisiana, 93 U. S. 217.

It is plainly contrary to public policy that a franchise granted for public purposes should be used as a mere cover for a private enterprise.— Fanning v. Osborne, 102 N. Y. 441, 7 N. E. 305.

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Whether a forfeiture clause in an act of incorporation of a public service corporation is self-executing depends wholly on the language employed, which must be strong and unmistakable to that effect.— Matter of N. Y. & L. I. Bridge Co., 148 N. Y. 540, 42 N. E. 1088.

[16]

Operation, termination and suspension of franchises. A franchise to operate a railroad between two points is not satisfied by the building and operating of a part of such line, and a complete abandonment of the remainder.- Brooklyn & R. B. R. Co. v. L. I. R. Co., 72 App. Div. (N. Y.) 496, 76 N. Y. Supp. 777; appeal dismissed, 178 N. Y. 593, 70 N. E. 1096.

That a street railroad removes its tracks from, and abandons for a time, a part of its road does not forfeit or terminate its franchise, so as to prevent it from relaying its tracks.- Trelford v. Coney I. & B. R. Co., 6 App. Div. (N. Y.) 204, 40 N. Y. Supp. 1150.

Refusal to employ its franchises in the service of a particular shipper does not constitute in any sense a suspension of such franchises.- People ex rel. Ohlen v. N. Y. L. E. & W. R. Co., 22 Hun (N. Y.), 533.

[17] Franchise taxes.

The contract and lease providing for the equipment, maintenance and operation of the New York City Subway is not a special franchise within the meaning of N. Y. Tax L., § 2, subd. 3, and even though it were, the same is exempted from taxation by N. Y. Rap. Tr. Act, § 35.- People ex rel. Interborough R. Tr. Co. v. Board of Tax Commrs., Misc. (N. Y.) —, — N. Y. Supp. affd. App. Div. (N. Y.) —, — N. Y. Supp. -.

The constitutional consents and franchises under which the New York City Subway was constructed and is operated are vested in and belong to the City of New York.-People ex rel. Interborough Rap. Tr. Co. v. Board of Tax Commrs.,- Misc. (N. Y.) —, — N. Y. Supp. affd. App. Div. (N. Y.), N. Y. Supp. -.

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[18] Unauthorized maintenance of road.

The construction and maintenance of a street railroad by an individual or association of individuals without legislative authority, constitute a public nuisance, and subject the persons maintaining it, not only to indictment, but also to private action in favor of any person sustaining special injury.- Fanning v. Osborne, 102 N. Y. 441, 7 N. E. 305.

ELEVATED RAILROAD CASES.

Upon the question of interference with the easements of light, air and access of persons owning lands adjoining public streets, through the erection and maintenance of elevated railway structures, the earliest case was Matter of N. Y. Elevated R. Co., 70 N. Y. 327. In this case abutting owners appealed from an order confirming a report of commissioners appointed to determine whether an elevated railroad should be constructed. It was contended that the act authorizing the construction of the road made no provision for compensation to abutting owners. court held that if there were any private rights in the streets, within the meaning of the Constitution, they must be taken in pursuance to law upon making compensation, but decided that provision for compensation was made by the act.

The

In the case of Story v. N. Y. Elevated R. Co., 90 N. Y. 122, it was sought to restrain the construction of an elevated railroad on the ground that the construction of such a road would be a taking of the property of the abutting owners without due process of law. It appeared that the abutting owners received their title from the city by grants in which said city covenanted that Front Street, in which the railroad was now sought to be constructed, should be and remain an open street forever.

The court granted the injunction on the theory that the structure to be erected would invade the abutting owners' easements of light, air and access in the streets, which were secured by the grants from the city, and, citing the N. Y. Elevated R. Co. case supra, the court held:

1. That the plaintiff had the right to have the street kept open for the benefit of his abutting property.

2. That this right constituted an easement which was property.

3. That the structure was inconsistent with the use of the street for

street purposes.

4. That plaintiff's property was taken without compensation.

The decision was reached by a vote of four to three, Miller, Earl and Finch, JJ., dissenting, contending that no such property right existed in the easement of light and air as would entitle the abutting owners to relief.

In accord with the decision in the Story case were the cases of Peyser v. N. Y. Elevated R. Co., 12 Abb. N. C. (N. Y.) 276; Glover v. Manhattan R. Co., 66 How. Pr. (N. Y.) 77.

The doctrine laid down in the Story case was applied in its broadest sense in the case of Lahr v. Metropolitan El. R. Co., 104 N. Y. 268, 10 N. E. 528, in which the court applied the rule there stated to cases in which the property for the street was taken by condemnation proceedings and there was no covenant by the city that the street should be kept open for street purposes. The railway company was held liable for injuries resulting from smoke, gas, coal-dust, ashes, etc., providing they were destructive of the easements of light, air or access.

This decision was followed in Wagner v. Metropolitan El. R. Co., 104 N. Y. 665, 10 N. E. 535; Drucker v. Manhattan El R. Co., 106 N. Y. 157, 12 N. E. 568; Shepard v. Manhattan R. Co., 117 N. Y. 442, 23 N. E. 30; Abendroth v. Manhattan R. Co., 122 N. Y. 1, 25 N. E. 496, 11 L. R. A. 634n; and Williams v. Brooklyn El. R. Co., 126 N. Y, 96, 26 N. E. 1048.

In the case of Kane v. N. Y. Elevated R. Co., 125 N. Y. 164, 26 N. E. 278, 11 L. R. A. 710n, the rule of the Story and Lahr cases was extended to allow recovery by property owners whose land adjoins streets which were opened during the Dutch possession of the colony, even though under the Civil Law, applicable at that time, no special easements exist in streets in favor of abutting owners.

Upon the question of the elements of damage for which recovery might be had, it was held in American Bank Note Co. v. N. Y. Elev. Co., 129 N. Y. 252, 29 N. E. 302, that noise was an element of damage, while in Sperb v. Metropolitan El. R. Co., 137 N. Y. 155, 32 N. E. 1050, 20 L. R. A. 752n, the rule was laid down that for injuries resulting from the operation as well as those resulting from the maintenance of an elevated structure, there could be recovery.

It was held in the case of Stroub v. Manhattan R. Co., 59 N. Y. Super. 505, that where a double track elevated railroad already exists in a street, the company operating the same will be enjoined from constructing an additional track until the easements of the abutting owners have been acquired.

PARK AVENUE VIADUCT CASES.

The cases known generally as the Park Avenue Viaduct Cases arose upon similar facts in each case. Upon a map filed with the city, a street one hundred feet wide, known as Fourth Avenue, was indicated. Prior to the opening of the street the New York & Harlem Railroad Company obtained the right to lay a double track road through this street; the double track road was constructed, partly upon a viaduct, and in 1872, after the opening of the street by the city, by an act of the legislature the railroad was compelled to make certain changes of grade and was allowed to lay two additional tracks; in 1892 the railroad was required by an act of that year to operate its road over a part of the distance, upon an elevated structure, this structure, being constructed under the supervision and control of the Park Avenue Board, the railroad having no control over the work, and merely paying a portion of the expense.

In the case of Conabeer v. N. Y. C. & H. R. Co., 156 N. Y. 474, 51 N. E. 402, the railroad obtained from the owner of property over which the proposed Fourth Avenue was to pass and lands adjoining the same, a deed of twenty-four feet of land running through the centre of the said street upon which to construct a railroad, but for no other purposes, with the right to slope its embankments or excavations not to exceed a total width of one hundred feet. The act complained of in this case was

the construction of the two additional tracks provided for by the Act of 1872. The court held that the additional width of the viaduct did not impose such an additional burden as would justify holding as a matter of law that the trial court should have enjoined the maintenance of the new structure, and distinguished this case from the elevated railroad cases on the ground that in the elevated railroad cases there was no grant by the abutting owners permitting the use of the street for railroad purposes. The first decisive case in the Court of Appeals relative to the improvements made under the Act of 1892 was the case of Lewis v. New York & Harlem R. Co., 162 N. Y. 202, 56 N. E. 540. In this case the court held that the old viaduct had remained so long without objection that the railway had acquired a prescriptive right to have the same stand forever so far as the plaintiff was concerned, and that she could claim no damages for the existence of the old structure nor for any new structure erected in its place within the same lines. It was held further that inasmuch as the new structure was built under the affirmative command of a statute by the Park Avenue Board and the railroad neither carried on, nor had the right to hinder or interfere with the work, such road was not liable for damages occasioned by the viaduct while in process of construction. The liability of the railroad began when the trestle was complete and was first put in use. The plaintiff was held entitled to recover damages occasioned by that portion of the trestle which stood wholly without the lines of the old viaduct, taking into consideration, however, the benefits of access conferred by the removal of the old structure.

Similar decisions were made in the cases of Taylor v. N. Y. & H. R. Co., 27 App. Div. (N. Y.) 190, 50 N. Y. Supp. 697; Welde v. N. Y. & H. R. Co., 28 App. Div. (N. Y.) 379, 51 N. Y. Supp. 290; Birrell v. N. Y. & H. R. Co., 41 App. Div. (N. Y.) 506, 58 N. Y. Supp. 650; Sander v. N. Y. & H. R. Co., 58 App. Div. (N. Y.) 622, 69 N. Y. Supp. 155; Larney v. N. Y. & H. R. Co., 62 App. Div. (N. Y.) 311, 71 N. Y. Supp. 27.

The Lewis case was followed by the case of Fries v. N. Y. & H. R. Co., 169 N. Y. 270, 62 N. E. 358, revg. s. c. 27 App. Div. (N. Y.) 577. In this case the court allowed the abutting owner no damages either for the construction or for the maintenance of the elevated structure, placing its decision on the ground that the railroad could not resist the improvement, nor could it refuse to operate trains on the viaduct when completed, without forfeiting its rights as a corporation. The court maintained that the work was a public improvement and applied the rule that where the property of an abutting owner is damaged or his easements interfered with in consequence of a work of improvement in a street conducted under lawful authority, he is without redress even though there is no provision for compensation made by the statute authorizing the improvement.

O'Brien, J., who wrote the prevailing opinion attempted to distinguish this case from the Lewis case, but Martin, J., in a separate opinion, en

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