FIFTH DEPARTMENT, DECEMBER TERM, 1887. seem to come within those referred to. The defendant had by the former action and judgment been advised that it had no right to make this diversion into and through the ditch, and that the railroad company had objected to the increased flow of sewage into and through it, which the proposed connection of the Monroe sewer would produce. Nor does it appear that the plaintiff in view of the situation is chargeable with laches. The time which had been given to the work or how far it had progressed is not stated by the affidavits; and it cannot be assumed that it was substantially accomplished when the injunction was served. There are, no doubt, interests involved concerning the public. The Monroe avenue sewer was productive of a public nuisance, the abatement of which was requisite to health and comfort. The exigency in such case is entitled to some consideration. And when protection of the public requires the violation of individual rights which can be compensated by damages, an injunction may be denied and the party injured left to his remedy at law, or the operation of the injunction will be for a period suspended, with a view to temporary relief, until some expedient can be devised and employed. (Crooke v. Flatbush Water- Works Co., 27 Hun, 72; West Troy Water- Works v. Green Island, 32 id., 530; Trustees of Columbia College v. Thacher, 87 N. Y., 312; Health Dept. v. Purdon, 99 id., 238.) And if it appeared that the defendant had taken any steps to acquire the right to use the ditch for the purpose in view, and which would likely result in obtaining it, some reason would appear for denial of the injunction or suspending its operation for a reasonable time with a view to that end. But nothing in that respect appearing, and the plaintiff having, by a former adjudication, obtained a final judgment restraining the defendant from doing what in practical effect, although not in fact, embraces the subject of the controversy in this action, it is difficult to see any substantial reason for the denial of the injunction. The public exigency does not seem to be such as to justify the withholding equitable cognizance for the protection of the clear right of the plaintiff in the premises as evidenced by the former judgment; yet, if the diversion of the sewage of the Monroe avenue sewer into the plaintiff's ditch were a temporary necessity for the protection of the public health we might think otherwise This, however, does not so appear, for if the dis FIFTH DEPARTMENT, DECEMBER TERM, 1887. infecting system can be effectually applied at the outlet of the one, it may, for aught that appears, in like manner be done at that of the other. It requires something more than mere convenience and moderate expense to justify the denial or restraint to the invasion of private rights of property within equitable cognizance. It is, however, contended that the injunction was improperly granted by a judge at chambers, and that it could be allowed only by the General Term, as the statute provides that "where a duty is imposed by statute upon a State officer or board of State officers, an injunction order to restrain him or them or a person employed by him or them, from the performance of that duty or to prevent the execution of the statute, shall not be granted, except by the Supreme Court at a General Term thereof." (Code Civil Pro., § 605.) The construction for relief in the manner prescribed by the order of the governor, although directed by such order to be done, is not, we think, within the provision of that provision of the Code. It is not a duty imposed upon any State officer, nor are the mayor and common council employed by any such officer to perform the duty. While the order was made pursuant to the statute the duty, so far as it was such, was devolved upon the local authorities named, to abate the nuisance, and in doing it neither the statute nor the order of the governor conferred the right to impose a burden upom the lands of another without acquiring the right to do so in the manner provided to appropriate it for the purposes of a public use or other lawful manner. The defendant should not be denied in this case the right to renew the motion if any further reasons substantial in character can be presented. The order should, therefore, be affirmed, without prejudice to the right to renew the motion. SMITH, P. J., BARKER and HAIGHT, JJ., concurred. Order affirmed, without prejudice to renew motion, with ten dollars costs and disbursements. FIFTH DEPARTMENT, DECEMBER TERM, 1887. 46 612 123a 242 AUSTIN T. MINER, APPELLANT, V. THE NEW YORK Estate of a railroad company in lands appropriated for its use — - the right to use them may extend beyond the prescribed term of its corporate existence - it may be, by legis lative act, transferred to a successor. The estate acquired by the Tonawanda Railroad Company in lands appropriated to its use, as provided in the act incorporating it (chap. 241 of 1832), was a right to use the same, for the purposes of the railroad, for a period limited only by the time during which the defined public use should continue, and to terminate only when it ceased, although such period might extend beyond the prescribed term of the corporate existence of the company; and such right and interest were such that they might, by legislative assent, be transferred to a successor to con tinue the like use. The estate which the Tonawanda Railroad Company acquired in the lands appropriated to its use, under the provisions of the act incorporating it, has, by virtue of the provisions contained in chapter 236 of 1850, chapter 76 of 1853 and chapter 917 of 1869, passed to the New York Central and Hudson River Railroad Company, and the public use for which it was taken is, by the said acts. still continued. APPEAL from a judgment dismissing the complaint, entered upon decision rendered by the court on a trial without jury, at the Genesee Circuit. L. N. Bangs, for the appellant. George C. Greene, for the respondent. BRADLEY, J.: The action is ejectment, brought to recover the possession of land occupied by the defendant and used as part of its railroad in the county of Genesee, and of that portion originally taken and used by the Tonawanda Railroad Company, which was created by the Laws of 1832, chapter 241. The act provided that the company should continue to be a body corporate for the term of fifty years; that it should have the right to construct and during its existence to maintain and continue a railroad from the village of Rochester to Attica; that in case the corporation should not be able to acquire the title to the lands FIFTH DEPARTMENT, DECEMBER TERM, 1887. through which the railroad should be laid, by purchase or voluntary cession, it should be lawful for it to appropriate so much of such lands as might be necessary, to its own use for the purposes contemplated by the act, in the manner provided; that the damages were to be assessed by appraisers appointed by the vice-chancellor of the eighth circuit; that the appraisers should assess the damages which each individual owner would sustain by the "appropriation of his land for the use or accommodation of such railroad or its appendages," and in assessing such damages the appraisers should take into the account the benefit which would accrue to such owner by means of the passage of the railroad through his lands: that on payment of the damages, etc., the corporation should " immediately become entitled to the use of the said lands for the purposes aforesaid;" that if the legislature should, at the expiration of ten, and within fifteen years, reimburse the company, etc., the "railroad, with all fixtures and appurtenances, shall vest in and become the property of the people of this State," and that the legislature might "at any time alter, modify or repeal" the act. The land in question was appropriated by proceedings in invitum under the act, and the railroad was constructed and operated by the company. And afterwards, pursuant to the provisions of chapter 236 of Laws of 1850, anthorizing it, the Tonawanda Railroad Company and the Attica and Buffalo Railroad Company, were consolidated or amalgamated into a single corporation, known as the Buffalo and Rochester Railroad Company. And pursuant to chapter 76, Laws of 1853, this and other companies were consolidated into a single corporation, which took the name of The New York Central Railroad Company. And in September, 1869, this company and the Hudson River Railroad Company were consolidated into one corporation, having the corporate name of the New York Central and Hudson River Railroad Company, pursuant to chapter 917, Laws of 1869, and the latter company has, since that time, operated the railroad embracing that portion upon the land in question. The act under which the first consolidation was had, provided that all and singular, the rights and interests of the two corporations in and to every species of property, shall be deemed to be transferred to and vested in the new corporation; and that it should hold and enjoy the same together with the right of way and all other rights of property, in FIFTH DEPARTMENT, DECEMBER TERM, 1887. the same manner and to the same extent as if the two corporations had continued to retain the title and transact the business of the corporations; and that the title and real estate acquired by either of them shall not be deemed to revert or be impaired by means of anything contained in the act. (Laws 1850, chap. 236, § 4.) And such were substantially the provisions and effect of the statutes under which the two following consolidations referred to were had. The question presented relates to the estate in the land appropriated by the Tonawanda Company by the proceedings under the act of its incorporation. Its power to exercise the right of eminent domain, was that only which was delegated to it by the State through the statute, which we assume did not permit the taking of the fee, but authorized the appropriation of the use merely. (Heard v. Brooklyn, 60 N. Y., 242; Strong v. Brooklyn, 68 id., 1.) The claim of the plaintiff rests upon the proposition that the estate which the company was permitted to take was limited to fifty years use from the time of its creation, because that was the time. designated for its corporate continuance. It must be conceded that the use provided for was limited by the statute to the purposes of a railroad, and that if the use for which authority was given to appropriate the land to such purpose was limited, by the statute delegating the power, to any definite term, it cannot lawfully be held, by force of such appropriation, for a greater than such period of time. The estate which may be so taken for public use, cannot be enlarged without compensation to the owner, so that if the use which the company had authority to take through the power delegated to it, was an estate for fifty years only, the legislature was powerless to enlarge it or to vest in the company any power to appropriate for its use any greater estate without additional compensation. (Const,, art. 1, § 6.) The right reserved to alter, amend or modify the charter of a corporation created for public purposes, bears upon its relation to the State, and does not embrace the power to impair the obligations arising out of contract relations in respect to property, or rights of property, between the corporation and individuals, to the prejudice of the latter. In the view thus taken, the question is one of the construction of the provisions of the charter of the Tonawanda company relating to the delegation of power to exercise the right of eminent domain. |