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Paterson Railway Co. v. Grundy.

it was to set out in detail every franchise granted to the corporation by its charter. The titles of such acts were generally nothing more than to incorporate a company, designating its corporate name. While it is true that no power could be granted by the supplement, which would have been unconstitutional if incorporated in the original act, that argument does not invalidate the supplement, because it would have been entirely competent for the legislature in 1866 to have granted, under the original act, the powers which are given by the supplement of 1870.

It is next claimed that this company has only the right to place a single track in any of the streets in the city of Paterson, but it is difficult to perceive how this could give the defendant the right to cut a wire which the company may have strung across the sidewalk in front of his property.

In my opinion the right of the complainant to operate a street surface railway in River street in front of Joseph C. Grundy's property is clear.

Has the complainant corporation the right to apply electricity by what is known as the overhead trolley system to the propulsion of its cars, and to erect and maintain the appliances necessary for the application of such power?

The question as to the absolute right of Joseph C. Grundy to cut the wires strung over his sidewalk by the complainant presents itself in a two-fold aspect, viz., his right as the owner of abutting property and his right as a citizen.

The complainant in this case has not placed upon the land in front of defendant's property any obstruction at all; his sidewalk is unencumbered, the posts are erected upon the lands of the owners of property on either side of his lot, and the only obstruction is the stringing of a wire twenty-odd feet above the curb line, in front of his lands, between these poles.

In considering the right of the defendant as an abutting owner to remove the wire, we assume, for the present, that the complainant has legislative sanction for the operation of its railway by the use of electrical force and its appliances, for if it has not, the defendant's right to clear the air of obstructions is as unques

Paterson Railway Co. v. Grundy.

tionable as his right to clear the surface of the street in front of his property. If the contemplated use of the street by the complainant is authorized by statute, the defendant's rights therein are subservient thereto, unless such use imposes an additional servitude upon the land taken by the street fronting defendant's property or on his land abutting thereon.

The special rights of the abutting owner in the streets are quasi easements of access and light and air over the land of the street fronting his property. Barnet v. Johnson, 2 McCart. 481; Dill v. Board of Education, 2 Dick. Ch. Rep. 441. These he cannot be deprived of without compensation being made to him. In re New York Elevated R. R. Co., 70 N. Y. 327; In re Gilbert Elevated R. R. Co., 70 N. Y. 361; Story v. New York Elevated R. R. Co., 90 N. Y. 122; Lahr v. Metropolitan Elevated R. R. Co., 104 N. Y. 268; Doucher v. Manhattan Elevated R. R. Co., 106 N. Y. 157; A. B. N. Co. v. N. Y. E. R. R. Co., 129 N. Y. 252. These are interests distinct from those possessed by the general public and are rights appurtenant to the lot and the improvements thereon. Decker v. Evansville, S. & N. Ry. Co. (Ind.), 33 N. E. Rep. 349.

It is equally well settled that when a public use, authorized by law, takes no property of the individual, but merely affects him by proximity, the necessary interference in his business or in the enjoyment of his property occasioned by such use, furnishes no basis for damages. Radcliff v. Mayor, 4 N. Y. 195; Bellinger v. Railroad Co., 23 N. Y. 42; Moyer v. Railroad Co., 88 N. Y. 351; Uline v. Railroad Co., 101 N. Y. 98; A. B. N. Co. v. N. Y. E. R. R. Co., supra. The defendant's right to compensation, if any, springs, therefore, from his rights of adjacency, not from the fact of proximity; it must be an interference with some one of the rights of access or of light or air which, so far as the adjacent owner is concerned, hampers complete legislative control of the street for public use as a highway. The stringing of a single wire across and in front of the defendant's lots, twenty-two feet above the curb line, cannot seriously be said to substantial interference with his quasi easement of light and air. Of course, defendant's rights of adjacency over the sur

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Paterson Railway Co. v. Grundy.

face of the street are not impaired by the acts of the complainant. But the abutting owner has not only the right of ingress and egress in the accustomed manner, but also to have the way of access to the upper stories of his house kept free from obstructions which will prevent its use in emergent cases, such as fire, or which cannot be quickly displaced in such an emergency without serious danger to the person attempting their removal. The pleadings and affidavits before me, on this order to show cause, do not fairly present the question of fact, whether the "feedwire" strung over defendant's curb line might not have been placed over the middle of the street without impairing its efficiency, nor what is the real danger, if any, in having it where it is now suspended. There can be no question that a privilege granted to a corporation of a partial use of the public highway, which threatens, if it does not encroach on, the property rights of the adjacent owner, should be so exercised by the company as to minimize the inconvenience and danger to the enjoyment of such rights. If it is not simply a question of expense, and the stringing of such an accessory to the electric railway as a feedwire over the middle of the street instead of over the sidewalk, does not destroy or seriously impair its usefulness, and if the strength of the electrical current through it is so great that there is danger in handling such a wire in case it is necessary to quickly remove it, the company should be required to string it in the way attended with the least interference and danger to adjacent property, or, if that is impracticable, then to adopt mechanical appliances of safety, as "cut-outs," as were required by the chancellor in the case of The Jersey City and Bergen Ry. Co. v. Jersey City, 1891, not reported.

The bill in this case practically alleges that the appliances used by the company are those which are best adapted to the purpose, and the affidavits of the defendant only set up that the wire in question will interfere with the putting up of ladders in case of fire, or his desire to paint his house. There is also an apprehension of danger expressed. But it is only the opinion of the defendant. Whether he is qualified to pronounce a reliable opinion on the question or not does not appear, and the facts

Paterson Railway Co. v. Grundy.

in this case do demonstrate that this wire can be expeditiously and safely removed. We must, therefore, deal with the question of this wire without regard to the element of danger and consider it simply as a wire strung over defendant's sidewalk.

In Lockhart v. Craig Street Ry. Co., 139 Pa. St. 419, the judge says: "The placing of the wires over the streets does not appear to be a taking of plaintiff's property. The streets are dedicated to the public use, and he has certain special rights as an abutting owner, but I cannot see how a wire run through the air above the streets can be said to be a taking, injury or a destroying of his property." The distinction between the use of a street by telephone and telegraph companies and street railways, in this that the latter is, and the former is not, consistent with the character of a highway, is clear and is recognized in Halsey v. Rapid Transit Co., 2 Dick. Ch. Rep. 380, yet Chancellor Runyon, in Roake v. American Telephone and Telegraph Co., 14 Stew. Eq. 35, denied complainant a preliminary injunction to restrain the telegraph company from stringing wires over the street in front of his lands, on the ground that his right was not clear, as well as that the injury, if any, was not irreparable, but expressly disclaimed any intention to pass on the main question. He, however, does say: "The legislature of this state appears to have considered that the use of the street, so far as the wires are concerned, was not a violation of the rights of the owner of the soil in the streets, for, while it recognizes such rights as to the erection of poles, it does not do so as to the wires." Hewitt v. Western Union Telegraph Co., 4 Mackey 424; McCormack v. District of Columbia, 4 Mackey 396, were both applications for injunctions to restrain the putting up of a telegraph line along a street in Washington. These were refused because no irreparable injury was threatened, and that it could not be seriously contended that access or light or air were interfered with, and the danger and nuisance from the wires were very slight. Of course neither of these cases is exactly in point, but they are sufficient to show how shadowy is the right on which the defendant relies. In my opinion, the act of the complainant in stringing its wires in front of the defendant's lots, if

Paterson Railway Co. v. Grundy.

authorized by statute, was not such an invasion of defendant's rights of adjacency as to entitle him to compensation, and, con◄ sequently, he was not justified in removing it by reason of the fact that he was such abutting owner.

His right as a citizen, in common with all others, depends on the question whether the occupation of a part of the street by the complainant was without lawful authority, and, as such, a nuisance which any one could abate.

Complainant claims the right to use the overhead trolley system in the application of electricity to its cars as a motive power, from the original charter of 1866 and the supplement of 1870, as well as by the act of 1886 and the consent of the city authorities of Paterson.

By section 16 of the original charter of 1866, it is provided

"that the said company shall have power to construct or have constructed, or to purchase with the funds of said company, and place and use on said railway or any part thereof, cars, engines, wagons, carriages or vehicles for their own use, or for the transportation of passengers or any species of property, for hire, to be operated by such motive power as they may deem expedient and proper."

And by section 2 of the supplement of 1870, it is provided

"that in the construction, equipment, management, running and operation of said railroad, the said company shall have and possess all the powers, authority and privileges granted to and conferred upon them by the act to which this is a supplement."

The right of the legislature over the public highways and to grant the use thereof for the public convenience and travel, so long as it does not impose additional servitudes upon the property, and does not materially obstruct the public use by ordinary and accustomed methods, is undoubted. Domestic Telephone and Telegraph Co. v. Newark, 20 Vr. 344-346. Its power to authorize the erection of lamp posts, water plugs and fire telegraph poles on the public highways has never been questioned; they are for the public advantage, and their occupation of the surface of the ground, and consequent inconvenience, is infinitesimal.

In this case the grant is not the right to use steam or horses in

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