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On motion of Mr. Gibbs, and by unanimous consent, the rules were suspended, and said bill ordered to a third reading.

A message was received from the Governor in the words following: STATE OF NEW YORK, EXECUTIVE CHAMBER, ALBANY, May 13, 1884.

To the Senate:

I return without approval Senate bill No. 337, entitled "An act extending and supplementing the rights, powers and duties heretofore possessed, conferred and imposed upon the Broadway Underground Railway Company.

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My objections to this bill can, I think, be better understood after a statement of some of the provisions of the statute, which have heretofore been passed, and proceedings which have been taken touching the corporation to which said bill refers.

On the 1st day of June, 1868, an act was passed authorizing seventeen persons therein named "to lay down, construct or maintain one or more pneumatic tubes in the soil beneath the streets, squares, avenues and public places of the city of New York; and to convey letters, parcels, packages, mails, merchandise and property in and through said tubes for compensation, by means of vehicles, to be run and operated therein by the pneumatic system of propulsion.' The following provisions were also contained in said statute: That the said pneumatic tubes should be so constructed as to have a mean interior diameter of not exceeding fifty-four inches.

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That in the city of New York they should be located and laid under the supervision and direction of the Croton Aqueduct Department, at such depth below the surface and in such manner as should prevent any injury to or unnecessary interference with the surface of the streets, or any change or alteration in the existing sewers, water pipes or gas pipes.

That said tubes should not extend through any vault nor under any sidewalk fronting on private property, without the consent of and compensation to the owner of such private property, which compensation should be ascertained and determined in case the parties could not agree in the manner provided by the general railroad law.

That the persons named in the act should first lay down and construct one line of said tubes from the post-office in Nassau street northwardly to Fourteenth street, which should be and continue in successful working operation for the period of three months, as certified by the postmaster, mayor and comptroller of the city of New York, before any other lines of such tubes should be laid down or constructed.

That the Croton Aqueduct Department should establish and enforce such rules and regulations as to the number of men employed on any and all parts of the work of constructing said tubes, the time of making, keeping open and closing the necessary excavations and the laying of the tubes therein as should prevent as far as possible the obstruction of any street, square, avenue or public place, and secure the completion of each part or section of said work with the

least possible delay, and that immediately upon such completion the surface and pavements of the streets, avenues, squares and public places should be restored to as good condition as they were before the making of any openings and excavations.

That within thirty days after the passage of the act a meeting of the persons named therein should be called, at which they might determine to form themselves into a corporation under the act of 1848, entitled "An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes," and that upon the formation thereof the said corporation should possess all the powers and privileges conferred by said act, and be subject to all the duties and obligations imposed therein not inconsistent with the provisions of the act of 1868. Pursuant to this provision such a corporation was formed on the 8th day of August, 1868, which was called the "Beach Pneumatic Transit Company."

The next year, the act of 1868 was amended in such manner that it was no longer necessary that the pneumatic tubes therein mentioned should be laid under the supervision and direction of the Croton water department, leaving the subject to be governed by such provisions of the act as were left unimpaired by the amending act and by such rules and regulations as should be inade by said water department "not inconsistent with the purposes of this act."

In 1873 a law was passed giving authority to the Beach Pneumatic Transit Company to construct, maintain and operate an underground railway for the transportation of passengers and property in the city of New York, extending from the Battery, or Bowling Green, under Broadway to Madison square, and along various streets and avenues in said act specified. It was provided that this underground railway should be so constructed and maintained by means of tubes of enlarged interior diameter sufficient for the construction of a railway or railways therein.

This law is entitled "An act supplemental" to the two acts already referred to.

It provides that the tubes therein permitted to be laid shall, as far as practicable, follow the center of the streets, and shall not occupy in the aggregate a greater space than thirty-one feet in width by eighteen feet in height; that the other walls of said tubes shall not approach within two feet of the curb line nor within eighteen feet of the building line of the street. A board of engineers is provided for, one of whom is named in the bill, and the other two to be appointed by the Governor, who shall see that the said tubes and railways are constructed in a thorough and workmanlike manner, that proper materials are used, that all needful precautions are taken by the company to prevent damages to private property, interruption to travel, and unnecessary interference with the sewers, water pipes and gas pipes, and that sufficient space is provided or allowed to remain, for proper sewerage and the laying of the gas pipes and water pipes, along the route of the tubes.

By this act the corporation is forbidden to interrupt the supply of water or gas or the flow of the sewers, and it is provided that all

changes or alterations in the sewers, water pipes or gas pipes that may be necessary, shall be done under the supervision of the Department of public works, but at the expense of the company; that during the construction of the works the travel through the streets over said works, and through the streets intersecting the line of said works, shall not be interrupted at any time except by special permission of the department of public works, and the board of engineer commissioners provided for by said act; that in working or excavating the said company shall, at its own cost and expense, make the foundation of every building adjoining or near said excavation firm and secure; that the said corporation shall commence the construction of their works within six months after the passage of the act, and complete the same to Fourteenth street within three years, and the whole work within five years thereafter; that the capital stock of said corporation shall be ten millions of dollars, and that before entering upon the work it shall be all subscribed for, and ten per cent paid in, or other financial arrangements made by said company to insure the completion of said work; that before the said company shall commence work it shall execute and deliver to the mayor New York a bond, with sufficient sureties, in such sum as the board of engineer commissioners shall determine, not less than two hundred and fifty thousand nor more than five hundred thousand dollars, conditioned that the said company and its sureties shall be bound to pay to any and all persons or corporations owning lands along the line of the road any and all direct damages and injury that the property of said city, or persons or corporations shall sustain by reason of the construction of said road, and that said company shall restore the streets and avenues to as safe and as good condition as the same were before the commencement of work thereon.

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In the year 1874 the name of the corporation was changed from the "Beach Pneumatic Transit Company" to the "Broadway Underground Railway Company," and the time for the completion of its road extended. Said company was also allowed to construct its tunnels and railways one foot larger than was provided by the law of 1873.

In the year 1881 another law was passed still further extending the time for the coinpletion of the work.

These several statutes have been thus referred to for the purpose of showing what protection was furnished the people of the city of New York and the municipality itself against loss and damage when the scheme was to construct a tube fifty-four inches in diameter, and thereafter railway tracks in a tube or tunnel laid below the center of the streets and occupying a space not exceeding thirty-one and thirtytwo feet in width and eighteen feet in height.

The bill now under consideration, instead of the appropriation of so small a part of the most important thoroughfare in the city of New York proposes to excavate next to the house lines a distance of not less than ten feet on each side of Broadway, for the purpose of constructing a sub-surface sidewalk under the walk, as now constructed, and to excavate all the rest of the street between the outer [SENATE JOURNAL.] 121

lines of such sub-surface sidewalks to the distance of not less than sixteen feet. The substance and material of the street is to be removed, and in its place it is proposed to put an artificial structure, upon the roof of which is to be supported the surface of a new highway or thoroughfare for ordinary purposes; and beneath this roof are to be constructed the railroad tracks of the company. For the purpose of affording light and air to the road-bed and the sub-suface sidewalks and other subterranean structures of the company, it may keep and maintain open spaces not extending six feet in width from and along the house line on each side of the street, providing it shall have or supply necessary means of entrance and exit to and from the surface sidewalks into and out of all buildings along its route. Its trains may be drawn by electric or other motive power not emitting smoke, cinders or steam, causing noise or annoyance. It may excavate any cross street for the purpose of housing or storing its cars or other property, and for removing material in the course of the construction of its works, and may build tramways for that purpose either upon or beneath such cross streets. The company has full power and authority to remove all sewers, water, gas, steam and other pipes, as well as all wires, tubes and other obstructions to the necessary work of the construction of its road-bed and of the sub-surface sidewalks or any part thereof, and shall, at its own expense, remove and place the same within subways to be constructed for their reception along the road-bed or under the subsurface sidewalks. During the process of construction the said company may sustain the surface of the sidewalks and streets by either temporary or permanent structures, or may substitute therefor temporary bridges or means of passage for foot passengers and vehicles.

It must be conceded that this bill contemplates a stupendous work involving a very serious interference with the rights of the present occupants and owners of property abutting on the streets of the city, and greatly affecting the interests of the municipality.

Those doing business on Broadway are quite generally occupying, by license from the city or by its sufferance, the space under the present sidewalk for business purposes. For a depth of ten feet, at least, from the surface, this will be taken from them by the operations of this company. An open space of six feet in width may be made by the company between their buildings and the sidewalks fronting them; and they are to content themselves with such means of ingress and exit as shall be furnished them under the provisions of the bill. They are in their business to be subjected to whatever of annoyance may be caused by the operation of the proposed railroad in close proximity. The danger to the foundations of the buildings along the excavation may not be entirely imaginary, though I do not regard it as necessarily serious.

But considering all the real and substantial elements of loss and damage that will ensue, we naturally seek in the bill for some provision requiring the consent of the persons likely to be injuriously affected before the street in which they have a direct interest is ex

cavated and carried away, and before they are deprived of the other rights and privileges to which they are entitled as abutting owners.

The interests of such owners in the surface of the streets in front of their property, their rights to its appropriation only to the ordinary purposes of its maintenance, are fully recognized by a constitutional provision, which requires the consent of a majority of such owners, or an adjudication by the court, before such streets can be used for the purposes of a street railroad. It is not easy to distinguish the difference in theory between the interests of abutting owners in the surface of the street and the soil beneath it, especially as against a project to dig up such soil and carry it away. And when we consider that this will result in the actual curtailments of the space used and occupied by such owners for business purposes, it certainly seems that this proceeding should more require their consent than a partial appropriation of the street. And yet we look in vain through this bill to find any provision requiring such consent.

If their consent is not to be obtained, there should surely be ample provision for the payment of all damages they may sustain by reason of the appropriation of the streets which is contemplated by this

company.

But the assurance that such payments are to be made does not appear to be very satisfactory. The statute of 1873, which permitted the construction of a railroad in a tube to be laid in the center of the street, provided that the company should "be liable to the owner or owners of any wall, building, structure, or lands or other property along the route of said railways for any clients' damage which they, or either of them, shall sustain by reason of any clients' injury caused thereto by the construction of said railway."

The bill now before me declares that the company "shall be subject to the same rules and obligations as to injury to private property not inconsistent with this act, as are now provided by law in respect to the construction of its underground railway."

The act of 1873 also provides that the company shall give a bond in a sum not less than $250,000 nor more than $500,000, which shall be conditioned to pay, among other things, all direct damages or injury that the property of said city or persons or corporations shall sustain by reason of the construction of said road.

Here we have at most the responsibility of the company, and the liability upon the bond above referred to, as the means of compensating for all direct damages or injury-whatever that may mean.

By the law of 1873 the company could not begin work until the whole of its capital stock, amounting to $10,000,000, had been subscribed and ten per cent thereof paid in in cash, or other financial arrangements had been made by said company to insure the completion of the work; and by the manufacturing law of 1848, under which the corporation was formed, the stockholders and directors were liable for the debts and liabilities of the corporation in certain

cases.

But, under the bill now before me, the liability of each stockholder to creditors is declared to be only for such amount as remains

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