"Who Owns Broadway?" (1870)

The New York Times · January 29, 1870

The Pneumatic Transit Company in Trouble--The City Claims $100,000 Damages Against the Company--Motion for an Injunction

Although we have heard much about the efforts of the City authorities to prevent the Beach Pneumatic Transit Company from continuing their operations under Broadway, between Warren and Murray streets, and from time to time items have been published in the daily journals to the effect that the corporate authorities were about to commence legal proceedings to restrain the Company from further prosecuting their enterprise, yesterday was the first time that the matter came before the Court in any tangible shape. The allegations of the complaint are substantially that the defendants are an incorporated Company, organized under the act of the Legislature of the State, passed in 1868, and amended in 1869. By the terms of their charter they were to be called "The Beach Pneumatic Transit Company", and were authorized to construct pneumatic tubes for the conveyance of letters and packages, under the streets of this City and Brooklyn, and beneath the North and East Rivers, but as an experimental work they were first to construct a line under Broadway, from Warren-street to Cedar, and to connect at Nassau-street with the General Post Office. Mr. Jones, the Postmaster, however, refused to grant any permission to connect the tubes with his office, and based his refusal on the grounds that the Postmaster-General said he had no authority in the premises. As our readers know, the work was commenced some months ago at the corner of Warren-street and Broadway, under the clothing establishment of Messrs. Devlin & Co., and had proceeded nearly or quite to Murray-street, when this action was commenced by the Mayor, Aldermen, &c., avowedly for the purpose of obtaining a permanent injunction against the Company. The city claims that it has already sustained damages to the extent of $100,000. According to the charter, the Company were bound to submit their plans to the approval of the Croton Board. This, it appears, they did, and with the approval of the officers of that Board, and under their direction, proceedings were commenced as above stated.

The argument on the motion for the injunction was commenced yesterday before Judge Cardozo, of the Supreme Court, at Chambers. Mr. Richard O'Gorman, the counsel to the Corporation, and Mr. A. S. Sullivan appeared for the City, and Mr. John Graham and Messrs. Betts and Mathews for the Company. An affidavit of Mr. Dean, assistant to the Corporation Counsel, was read, setting forth the facts mainly as stated in the complaint. On the other side, counsel read the affidavits of Alfred E. beach, Joseph A. Miller, Alfred W. Craven, formerly Chief Engineer of the Croton Board, George S. Green, and W. J. Holroyde.

The latter deposed that for ten years past he has been a civil engineer; that he has surveyed Broadway between Warren and Murray streets, and is acquainted with the size of the defendants' works, and of the size of the water and gas pipes now existing in that portion of Broadway; that the width of the carriageway of Broadway at the point named is 43.5 feet; that the depth of the soil, from the surface of the street to high water level, is 37 feet 4 inches, and that the area of the cross section is, therefore, 1622.5 feet; that no public sewer now exists on that portion of Broadway, that a 12-inch sewer will be sufficiently large for such portion should sewerage become necessary; that the cross section area now occupied by the all the gas pipes, water pipes, and proposed sewer, is 8.15 feet; that the area occupied by the existing works of the defendants is 68.41 feet, leaving a total area in said cross section of 1,546 feet, which is sufficient space to accommodate more than 180 separate lines of pipes of the respective sizes of those the plaintiffs now laid in said street. Deponent says that he has been employed in the construction of the defendants' works from their commencement, and that he prepared the plans for the works, which are to consist of four pneumatic tubes, of which two are to have a mean interior diameter of 52.1 inches each, the remaining two a diameter of 16 inches each; that the method of adopted for building said works was the first to erect an outer inclosure wall for all the tubes, which wall forms part of the interior wall of said tubes; that said outer wall or skin is eight inches thick and eight feet interior diameter; that the said method of construction is a good and proper method; that the dimensions of the inclosing wall are of the proper dimensions, and no larger than necessary to receive the proper and substantial construction of the pneumatic tubes; that during the construction of defendants' works there has been no disturbance of, or any interference with the gas pipes, water pipes, public sewer or other underground works of the plaintiff.

Alfred E. Beach, one of the corporators, in an affidavit denies that the plaintiffs are the owners in fee of Broadway, and alleges that whatever right, title, interest or authority over that street is held by the plaintiffs in trust for such public uses as the Legislature shall, from time to time, declare and provide. That the Legislature have full and exclusive right and power to declare the uses to which the soil of the street shall be put, and that the charter of the Company gives them the full power to construct the works. They deny that any damage has been suffered by the operations of the defendants.

George S. Green, Engineer and Commissioner of the Croton Aqueduct Department, states that he is fully cognizant of the plans of the work; that the tube is of the proper size. The method of construction is a proper one, as tending to economize expense and shorten the time of construction; that the method of construction and the laying of the masonry is very little likely to disturb the surface of the street, interrupt travel thereon, or impair gas and water pipes or sewers; that the construction will not prevent the proper sewerage of the streets, &c.

Mr. O'Gorman said: The real question submitted was very grave and one of the greatest importance, involving the point as to what rights the Corporation of this City have in its streets, or whether it has any rights at all. The affidavits which had been read on the other side were unknown to him until within a few moments, but it seemed that he could without damage readily conceive all their averments. The real question did not depend on the affidavits, but upon the issue of law directly taken by the defendants. The proceedings had had the implied sanction of one of the Executive Departments of the City (the Croton Board), and it might be argued from that that the City had waived its right to object to the proceedings. The answer was that by law they had no right to assent to it. Conceding that no serious damage had been done to any existing civic institutions on the surface of the street, the objection was that it affected the future rights of the City to build other and larger sewers and gas pipes; that they did as little damage to the City's property as possible, did not affect the question. The averment of the engineers is that there is no reason to believe that any future necessities of the City will be injured by tunneling, was not a matter of fact, but of opinion. What man could form any reliable opinion as to the future? The position he took was, that the fee of Broadway, and of all the streets in the City which may be affected by the defendants' operations, is vested in the City in trust; that these lands should be applied forever to the purposes of streets. The case now presented was, he submitted, altogether a new one, and the questions were entirely novel. In former cases, when railway companies claimed authority from the Legislature to use the surface of the streets, that claim was to a transient passage across the surface. Here, below the surface was used, and not a transient but a permanent occupation was claimed.

Judge Cardozo--"Is not the question res adjudicula, unless it can be shown that this case is distinct from the railroad cases?"

Mr. O'Gorman said that the adjudications would be found to be embraced within very small limits and extended the legislative power very little, but unfortunately most of the Judges had indulged in arbiter dicta, giving what the law was, or ought to be, altogether apart from the real questions in the case. On this he cited several cases in point.

Mr. Graham made a very long argument in reply. He said several questions were to be considered:

1. The character of the title of the plaintiffs to exclusive possession of the lands in question.

2. The damages, if any, suffered by the plaintiffs by the acts of the defendants.

3. The rights of the defendants to enter upon the land and perform the acts complained of.

4. The equitable considerations which should prevent the issuing of a preliminary injunction.

In pursuing his argument he contended that the City Corporation was organized solely for the purpose of government and local regulation. It was admitted on all hands that the Legislature has an unqualified right to resume the powers of government which it has delegated to the City. On the point raised by the plaintiffs that this enterprise is a private one, and that public property cannot be taken for its use, counsel cited a portion of the act of incorporation, as follows:

"The use of said streets, squares, and avenues and public places, and the soil beneath the surface thereof, as herein authorized and provided for, is hereby declared to be a public use thereof, consistent with the uses for which the said respective cities (New-York and Brooklyn), or the corporate authorities thereof, hold the said streets, squares, avenues, and public places."

In conclusion, Mr. Graham said: The plaintiffs have lain by and watched the defendants expend a very large amount of money upon these works, viz.: $150,000, and now at this late day come forward and ask for an injunction, the granting of which would result in a total loss to the defendants of all the money the plaintiffs have acquiesced in their expending. No injunction, preliminary or final, should issue in such a case until the plaintiffs have clearly established their rights to prohibit the acts complained of, nor until the plaintiffs have done equity by full compensation to the defendants. An injunction will never issue to restrain any mere trespass, where the damages are susceptible of computation and recovery at law. Any possible damage to the plaintiffs would only be the cost of restoring the land to its original condition, which the defendants are entirely able to meet.

At the conclusion of Mr. Graham's argument, the Court adjourned until this morning when the Corporation Counsel will make the closing address.