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Prime . Twenty-third Street R. R. Co.

street railway company, has the right to remove the snow from its tracks to the side of Twenty-third street by means of a snow-plow and sweeper, as heretofore

The streets and avenues

is dependent upon the legislative will. of the City of New York are, with few if any exceptions, owned in fee by the public, and are subject to the absolute control of the Legislature, by which they may be entirely closed (as has been done in various instances), without redress to any one accustomed to use them, or whose use thereof constitutes a main incident to the Ownership of the adjacent property. If deemed necessary or proper by the Legislature, it may grant the use of a street or avenue to the exclusive purposes of a railroad, or to any other particular kind of traffic, aud exclude therefrom all others of a different character. This power of the Legislature, while absolute, is only subject to moral control, operating upon the consciences of legislators as to their duty in enacting such laws, as will insure the greatest good to the greatest number, and inflict no unnecessary injury upon any one. In the course of legislation cases are constantly occurring where laws are enacted for the public good, which seriously prejudice the interests of particular individuals, and this constitutes but such a sacrifice of private interests as every one is in a greater or less degree called upon to make for the benefit of the community in which he lives.

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The grant by the Legislature of such a franchise as that held and enjoyed by the defendants, confers upon the grantees a special privilege beyond that which is possessed by any citizen as of common right (Bank of Augusta v. Earle, 13 Peters, 595). To the extent of the legislative grant under consideration, it confers privileges and imposes duties performed for the convenience or benefit of the public. The right to thus run and operate a railroad through one of the public streets, while inconsistent with the easement enjoyed in common by every citizen, is dominant and paramount thereto, and such common right must yield and become subordinate to the purposes of the franThe special privilege conferred by the Legislature involves not only what is given or conferred in express terms, but also, as incidents, all such other powers as shall be necessary or essential to the exercise of these so enumerated and given. All inconsistent statutes and city ordinances are to that extent repealed. As to all interferences with such a grant, Chancellor KENT says (3 Com. 459): "The common law contained principles applicable subject, dictated by sound judgment and enlightened moIt declared all such invasions of franchises to be nuisances,

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Prime v. Twenty-third Street R. R. Co.

used by the defendant, for the purpose of enabling its cars to pass along the tracks. It is further adjudged that the defendants, the Twenty-third street

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and the party aggrieved has his remedy at law by an action on the case for the disturbance, and in modern practice he usually resorts to chancery, to stay the injurious interference by injunction." As to incorporated railroads, this protection is further ensured by section 42 of the general railroad act, which makes it highly penal to stop or obstruct their operation. With the rights thus conferred with a view to the public convenience, the duty is also imposed upon the grantees of such a franchise to provide and maintain facilities for accommodating the public at all times, with prompt and convenient passage (3 Kent, Com. 458-9). In the adoption by the defendants of the use of the snow-plow and sweeping-machine, for the purpose of speedily removing the newly-fallen snow from their tracks, it abundantly appears that in order to perform the duty imposed upon them by law, this use of such machines affords the only known means by which it may be accomplished efficiently and economically. On the argument this being made clearly to appear by the opposing affidavits, it is still argued by plaintiff's counsel that his clients were injured by the defendant's suffering the snow thus swept by such machines on to the intervening space in the street, between the railroad tracks and the sidewalk, to remain in conjunction with the snow he, in compliance with the city ordinance, had shoveled or thrown from off his own sidewalk and street gutter, and had reduced or fashioned into a passable roadway, as by so doing they destroyed such roadways and formed heaps of snow therein as rendered them impassable by ordinary vehicles, and constituted such an unauthorized interference with his access to his own premises as entitled him to a remedy by injunction. This argument is founded upon a misconception of the relative rights and duties of these parties. It would be entitled to some force were it urged as between parties having a common right in the public street. Should any person vested with no special privilege attempt to do this for his own convenience, in facilitating the passage of heavy vehicles, or those of such character as required for their convenient passage that the snow should be removed from their tracks, as is required for the passage of railroad cars of the defendants, it might fairly be a question to what extent one citizen might thus, on occasions, persistently and to such extent, subject the public street to his own private convenience and to the inconvenience and special injury of others; but in consideration of the entirely different privi

Prime . Twenty-third Street R. R. Co.

railway company, be, and it is hereby restrained from leaving the snow so removed heaped up between said track and the plaintiff's premises, known as Number 38

leges and duties of the parties to this action in or to the use of Eighth street, it seems clear that the defendants, by virtue of their franchise, fully possessed the right, as against the plaintiff and every one else, to adopt the summary mode complained of to remove the snow and ice from off their tracks, and to such distance therefrom as to insure its not being again accidentally thrown thereon, so as to further obstruct the passage of their cars; that in thus exercising their privilego and performance of the duty of clearing their tracks, no other or further duty devolved upon them of subsequently removing elsewhere from the street, or its severance from the mass of snow previously accumulated between their tracks and the sidewalk, or to cart away the additional amount they had caused to be thus thrown thereon from off their tracks. The enforcement of such a subsequent duty would be in the nature of an operative or working injunction; mandatory rather than prohibitory, and finds no countenance in the principles of equity under which an injunction is to be granted. The trivial and accidental occurrence of the throwing of snow by the plows and sweeping-machines on to the sidewalks might be justified under the like principles, as before stated, as they are parts of the public street: but, as it is shown that the improved machines recently used remedy any such accident, there is no ground of complaint left for consideration requiring any such summary remedy as an injunction. Under these views, I am of the opinion the motion for an injunction should be denied, and it is so ordered, with ten dollars costs to defendant."

In the case of THE CHRISTOPHER & TENTH STREET R. R. Co. v. THE MAYOR, &c. OF NEW YORK, in the Supreme Court, a motion for a temporary injunction was denied.

DONOHUE, J.-In this case the plaintiffs own and operate, under a

special

Charter, a railroad through Tenth and other streets, in the

city of New York, and they complain that the police commissioners and the defendants are throwing the snow on their tracks in such a way as to impede the use of the railroad. I do not understand any claim to be made by either the defendants or the police commissioners that they have the right to generally place the snow on the plaintiffs' tracks, but the claim is that the plaintiffs, by their snow-plows and their street-sweeping machines, having thrown the snow off the tracks on the side of the street, thereby making an accumulation that seri

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Prime v. Twenty-third Street R. R. Co.

East Twenty-third street, for a longer period than may be reasonably required for the taking of such snow away from such portion of Twenty-third street."

Costs were also awarded.

I

ET

No appeal was taken.

ously interferes with the use of the street, the defendants have the right to replace the whole or some part of the snow on the tracks to improve the use of the streets. The first question raised is on the right to use the means employed by the plaintiffs to clean their tracks, by which the alleged obstruction of the street has occurred. This subject has received the attention and thorough consideration, within a few weeks, of a court possessing a jurisdiction co-ordinate with this court; and aside from the ability and learning of the judge who considered the case, that decision is entitled to the same consideration as the judgment of one of the judges of this court.

The opinion delivered shows a thorough examination of the case, directly on the point in question; and, even if not fully concurring, I would hesitate in declining to follow it.

The difficulty, on the part of those attempting to restrain the use of the means employed by plaintiffs in clearing their tracks, is that the legislature seems to have looked solely at the railroad corporations, and the courts have so construed the rights granted.

I shall therefore follow, until a contrary rule shall be made, Judge ROBINSON's decision, especially as it applies to this very road on this very right. The only question left is, whether, if the railroad company have a right to do what they have done, have the police commissioners the right to undo it?

It seems to me this must be answered in the negative; because if the snow is so replaced on the track the same sweeper can be resorted to to put it off; and if the right is so possessed to clean their road, it must carry with it the right to have the road left free. The right to clean must include the right to have the road free from interference of this kind. Whatever inconvenience or disregard of private right there may be in the matter, redress must come from the power that placed matters where they are. It is to that the parties must be remitted.

Motion granted.

Townshend v. Townshend.

TOWNSHEND v. TOWNSHEND.

N. Y. Supreme Court, First Department; Special Term, 1875.

PARTITION.-PLAINTIFF'S TITLE. -PARTIES. - PLEADING.
BRANCES.-PRESUMPTION OF PAYMENT.

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In equity, a deed by a wife directly to her husband, may be treated as valid.*

Under an answer which "neither admits nor denies," defendant cannot take advantage of the objection that a deed relied on by plaintiff is void.t

The statute presumption of payment of mortgages, &c., arising from the mere lapse of time, though it does not avail to support a a demand for affirmative relief against the mortgage, may avail to preclude the holder of the mortgage from claiming thereunder as a lienor when nade defendant in partition.

A creditor by an entire lien on the whole premises is not a necessary party in partition; but if made a defendant, the court may determine the validity and amount of the lien.

John Townshend brought this action against Mary N. Townshend, (his wife) and Mary S. Van Beuren, as

* The technical common law rule on this subject and some modern relaxation of it may be traced in the following cases: White v. Wager, 25 N. Y. 328; Winans . Peebles, 32 Id. 423; Allen v. Hooper, 50 Me. 371; Robertson v. Robertson, 25 Iowa, 350; Kinnaman v. Pyle, 44 Ind. 275; Preston v. Fryer, 38 Md. 221; Gebb v. Rose, 40 Md. 387.

As to deeds by the husband to his wife,-See Lockwood v. Cullin, 4 Rob. 129; Simmons v. Thomas, 43 Miss. 31; Vogt v. Ticknor, 48 N. H. 242 ; Orr v. Orr, 8 Bush, 156; Plumb v. Ives, 39 Conn. 120; Sims v. Rickets, 35 Ind. 181; Thompson . Mills, 39 Id. 528; Brook bank . Kennard, 41 Id. 339; Jagers v. Jagers, 49 Id. 428; Beard v. Dedolph, 29 Wis. 136; Dale ". Lincoln, 62 Ill. 22; Chew v. Chew, 38 Iowa, 405; Nippes's Appeal, 75 Pa. St. 472.

To the same effect, Cheever v. Wilson, 9 Wall. 108, 121. But a legal conclusion is not admitted, 54 N. Y. 276.

+ Compare Halsted v. Halsted, 55 N. Y. 442.

VOL. I.-6

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