§ 30. Upon this subject, the interest of the tenants residing in the passage, it seems, should be regarded. Lord C. J. Mansfield, in Woodyer v. Hadden,1 observed: "It is intimated that this was an attempt of the plaintiffs to extort a sum of money for passing over this way; but I think the plaintiffs would not act handsomely, if legally, if, for any price, without the consent of the tenants—the inhabitants of these houses they should agree to its becoming a public way; for there are many conveniences attending a private Cul-de-Sac, of which, having so let it to them, the lessors have no right to deprive them." The decision in this case, it will be seen, by an attentive examination of it, is opposed to the one in the case of the Rugby Charity.

§ 31. In the still later case of Wood v. Veal,2 Abbott, C. J., in referring to Lord Kenyon's decision, which had been urged in the argument, said: "I have great difficulty in conceiving that there can be a public highway, which is not a thoroughfare, because the public at large cannot be in the use of it." And Holroyd, J., said: "The opinion of Lord Kenyon, in Rugby Charity v. Merryweather, is somewhat shaken by the observations of Lord C. J. Mansfield, in Woodyer v. Hadden." So, also, Best, J.: "No man has a greater respect for Lord Kenyon than I have, but I think that decision was a departure from the principles usually received in law. If a road be for the accommodation of particular persons only, it is not a public road; and, therefore, I see no reason why the inhabitants of a street, which is not a thoroughfare, should not put up a fence at the end of it, and exclude the public." Undoubtedly, if a lot of land bounded in front upon a Cul-de-Sac, and upon a common street in the rear, the grantee is entitled to have the latter kept open for a necessary passage to the rear of his building.3

1 Woodyer v. Hadden, 5 Taunt. R. 125.

2 Wood v. Veal, 5 Barn. & Ald. R. 454.

3 Livingston v. New York, 8 Wend. (N. Y.) R. 99. Lord C. J. Denman has

7. Railways in Streets.

1

§ 32. The introduction and use of railways in the streets of a city have existed in the city of New York for a number of years, and the question as to the general power of the city corporation to authorize the laying of a railway track in that city, was well-settled in 1849, in the case of Drake v. The Hudson River Railroad Company. It appeared in the case, that by an act of the legislature, the company was authorized to construct a railway between the cities of New York and Albany, commencing in the city of New York, with the consent of the city corporation, and the directors were authorized to locate such railway on any of the streets or avenues of the city, westerly of, and including the Eighth Avenue, on, or westerly of, Hudson Street; provided, that the consent of the mayor and common council should be first obtained. Two questions in the case were distinctly passed upon, and decided by the Court: First, that a railway in a city is not per se a nuisance or a purpresture; and, second, that the corporation of the city has the power and the right to authorize the use of its streets for that purpose.

2

§ 33. It was contended in Milhau v. Sharp, upon the argument, that the case noticed above was distinguishable from this case, because in the former, the legislature had, by its charter to the company, authorized it to carry the road into the city. But it will be observed, that this authority is made to depend entirely upon the assent of the mayor, aldermen, and commonalty of the city. In the present case, it was held, that the power in question existed as one of the general municipal powers of the corporation, that body being invested with the largest discretion; so that, whether its laws are wise or un

said: "I never remember a way being claimed, without stating to what place, or from whence it leads." Davies v. Stephens, 7 C. & Paine, R. 570.

1 Drake v. Hudson River Railroad Co. 7 Barb. (N. Y.) Sup. Ct. R. 508. 2 Milhau v. Sharp, 15 Barb. (N. Y.) Sup. Ct. R. 193.

wise, it is not the province of the courts to inquire; and the same has also been held, in several other cases in the State of New York; for, as civilization advances, new uses of streets are found expedient.1 Where the charter of a company author

1 Milhau v. Sharp, 15 Barb. (N. Y.) Sup. Ct. R. 193. So in the case of Plant v. The Long Island Railroad Co. 10 Barb. (N. Y.) Sup. Ct. R. 26, it was held, that the corporation of the city of Brooklyn had the right to authorize a railroad company to tunnel a public street for the purpose of laying a railway track. And in the case of Adams v. S. & W. Railroad Company, 11 Barb. (N. Y.) Sup. Ct. R. 414, a similar power was recognized in the Village of Whitehall. See also, Chapman v. A. & S. Railroad Company, 10 Barb. (N. Y.) Sup. Ct. R. 360. In each of these cases, the recipient of the right or thing granted was a body corporate, created by an act of the legislature, but, in every case, the right, or thing granted, was given by the city or village corporation, by virtue of its general powers over its streets. See also, Hentz v. Long Island Railroad Co. 13 Barb. (N. Y.) Sup. Ct. R. 646. In relation to the proper authority to confer the power of laying railways in streets, in the city of New York, we subjoin the following account of a later action by the Courts of the State of New York, which we take from the New York Daily Times of January 10, 1857, in regard to the grant by the Common Council of the city, of the right to construct a railroad in Broadway. The decision of the Court was embodied in an opinion written by the chief justice, Denio. Justice Comstock, however, while concurring in the decision, dissents from some of the views set forth by the chief justice.

"Soon after this grant was made, it will be remembered, application was made to the Superior Court, at General Term, for an injunction, which was granted. From this judgment the grantees appealed, and the Court of Appeals have now reversed it and awarded a new trial.

"The ground upon which this decision is made, it will be seen, however, is purely technical. It was not proved that the parties who applied for the injunction were the owners of lots on Broadway, or that they would be specially injured by the construction of a railroad on Broadway. The Court hold, therefore, that the action cannot be sustained on their behalf.

"But the Court lay down certain principles in regard to the general subject, which are of the utmost importance with regard not only to the future legislation of the city, but to its past action concerning railroads in the public streets. The Court holds, that the establishment of a railroad is not within the jurisdiction conferred upon the Common Council over the roads and streets of the city; because it is not an object of the same public nature with those which roads and streets are designed to serve. Besides this, it is held, that the grant was a franchise, conferred upon the grantees in perpetuity, and, therefore, beyond the power of the Common Council. The right of making such a grant, and of authorizing the construction of a railroad in any of the public streets of the city, rests, according to this decision, with the legislature. And if the road had

izes it to establish a railway along a public street to a particular point, and to run a locomotive on a turn-out from the main

been constructed, under the grant of the Common Council, it would have been a public nuisance.

Judge Comstock holds, that a railroad may be built, which shall not necessarily be a franchise or monopoly, - provided it is left open to the general use of the public; and that a highway and a railroad-track may coëxist and constitute one public easement. He holds that the Common Council has power to authorize such a railroad; but whether the Broadway Railroad would or would not have been such a one, is a matter of fact which has not been determined. This particular grant, however, was clearly made as a franchise. The effect of the ordinance was no less than an abrogation by the Common Council of their powers and duties over and concerning the public streets, and a surrender of a considerable portion of those powers and duties into the hands of private individuals, or of a private corporation. This, Judge Comstock says, the corporations of New York cannot do ;—and he therefore regards the ordinance as null and void.

"The case must now go back to the Superior Court for a new trial. It is clear, however, from the general tenor of this decision, that the Court of Appeals would never sustain the validity of a grant by the Common Council for a Broadway Railroad. Such a grant must come from the legislature.”

From the Law Reporter for October, 1856, p. 382. Notes of Cases in New York, Wetmore v. Story. "Roosevelt, J.-Messrs. Wetmore, Hoppoch and Stuart, of this city, and also owners of property on Greenwich and Washington streets, complain that the defendants, under the name of the Ninth Avenue Railroad Company, and under color of a pretended grant from the city authorities, are about extending their rails through those streets, in front of the plaintiffs premises, to their great injury and annoyance, and in violation of their rights. An injunction granted in the first instance, on their application to restrain the proceeding, was subsequently, at Special Term, dissolved, and the complaint dismissed. From that judgment the plaintiffs have appealed, insisting that the injunction originally issued, instead of being dissolved, should be made perpetual. "On the part of the defendants, it is not pretended that every citizen has a right to lay a rail-track in the streets of the city. The corporation, however, it is claimed, may do it; or, in their discretion, by a resolution of the Common Council, may grant the privilege, as a franchise, to a particular individual or association of individuals. Such a grant, it is alleged, has been made in this instance. The Judge so held at Special Term. He placed his final decision on that ground. And the question, therefore, is, can a resolution, adopted by the Board of Assistants in one year, be concurred in by the Board of Aldermen in another year, so as to make it, without consulting the existing Board of Assistants, an ordinance of the Common Council? Or must it, as in the case of unfinished business in other legislative bodies, be taken up de novo ?

“When the charter of 1830 declared that the legislative power of the Cor

track to communicate with a depot erected by them near the terminus of the road, containing the machinery necessary for

poration of the City of New York, should be vested in a Board of Aldermen and a Board of Assistants, who together should form the Common Council of the city,' it must be considered as having adopted by implication, so far as applicable, the universally recognized principles of legislative bodies, constituted of two independent branches.

"The settled practice and understanding, indeed, we may say, the common law, — of such bodies, as illustrated in the Congress of the United States, the Legislature of this State, and, it is believed, in the Legislatures of every State in the Union, as well as in the Parliament of Great Britain, repudiates the idea that the Board of Aldermen of 1853, could take up and pass the resolution of the politically deceased Board of Assistants of 1852, and give it effect as law, without consulting the newly-elected body. It might have been, although not so in the present instance, on the express ground of opposition to the particular act of their predecessors, and for the express purpose of preventing its consummation.

"No case has been cited in which the Senate of a State, or of the United States, or of the Upper House of Canada, or of Great Britain and Ireland, has attempted to give effect to the inchoate action of a previous Assembly, House of Representatives, or House of Commons, whose term had expired, and whose places were filled by others newly chosen in their stead.

"To allow an opposite practice in the legislation of the City Common Council, since its new organization, would be at times to defeat the will of the constituents, clearly expressed through the regular channel of the ballot-box, and to render the elective franchise a nullity. Although the corporation of the city is a continuous body, the Common Council, since its division into two branches, is not. Its legal term, like that of the State Legislature, upon whose model it was formed, is one year, and no longer. The Common Council of 1852, is not the Common Council of 1853.

"The primary object of that act, was to prevent the Common Councils of cities from permitting the construction of railroads in the streets of cities without the consent of a majority of property-owners immediately interested; and when it excepted from its operation railroads already constructed in part,' it meant those constructed under lawful authority, and not under 'grants, licenses, resolutions or contracts,' which had never been made, given, passed or entered into according to the charter; and which, therefore, having, in judgment of law, no existence, could not. be confirmed.'

“The confirmation intended, was a confirmation as against the State, and not against the Common Council itself. An opposite construction of the act, instead of restraining the Common Council from permitting injurious railroads, would go to sanction roads commenced in violation of law, and which had never been permitted at all.

Having had, therefore, no warrant for its commencement, and none for its