Paterson Ry. Co. v. Grundy

• Citation: 51 N.J.E. 213,26 A. 788
• Parties: PATERSON RY. CO. v. GRUNDY et al.
• Decision Date: 28 April 1893
• Court: New Jersey Court of Chancery

26 A. 788

51 N.J.E. 213

PATERSON RY. CO.

v. GRUNDY et al.

Court of Chancery of New Jersey.

April 28, 1893.

Bill by the Paterson Railway Company against John Grundy and others. A rule was granted to show cause why a preliminary injunction should not issue. Rule discharged.,

John W. Griggs, for complainant.

David J. Berry and George S. Hilton, for defendants.

GREEN, V. C. The complainant, the Paterson Railway Company, was formed by the consolidation, under the act of 1888, (P. L. 1888. p. 74,) of the Paterson City Railway Company, the Paterson & Passaic Railroad Company, and the Haledon Horse-Railway Company, three corporations operating street railways in the city of Paterson and its vicinity at the time of such consolidation, on April 28, 1888. The Paterson City Railway Company was organized under the provisions of the statute (Revision, p.922, § 76) by the grantees in the deed of the master, under proceedings of foreclosure and sale of the property and franchises of the Paterson & Little Falls Horse & Steam Railroad Company, which was included in a mortgage executed by the said company to secure the payment of bonds issued by it. This last-named company was incorporated by act of the legislature approved April 9, 1866, (P. L. 1866, p. 1068.) A supplement to the said charter was passed by the legislature, and approved March 14, 1870, (P. L. 1870, p.529.) The original charter gave the company authority to operate its cars by such motive power as it might deem expedient and proper. Prior to the foreclosure and sale of its property and franchises, it had built and was operating a surface railroad on various streets in the city of Paterson, including a portion of River street.

The bill alleges that the complainant corporation, being of opinion and having determined that it was expedient and proper to operate its railway system by the application of electricity to electric motors for the propulsion of its cars, instead of horse power, as formerly, adapted two of its routes to that method, and was engaged in preparing to put it in operation on their railway on Rivet street, embracing the section of that street on which defendant Joseph C. Grundy owns several lots. The allegations of the bill with reference to the adoption of the plan and the method of its practical application are substantially as follows: The company, in the exercise of the discretion confided to it, and in discharge of its duties to use its public franchise for the transportation of passengers in the most commodious and advantageous manner, has decided and does deem that it is necessary for the securing of more rapid transit to substitute electricity for horses as the propelling power of its cars, and that, as a matter of fact, there is now but one safe and practical system known and in operation for supplying the electrical current to the cars, and that is what is known as the "trolley" or "overhead" system. That the system of electrical motors used by the company is that known as the "trolley" or "overhead" system, which consists of iron posts set near the curb line in the sidewalk of the street, upon which insulated wires, culled "feed wires," are stretched at a height of about 22 feet above the street. Two other wires, called the "trolley wires," are stretched above the tracks, and are connected at intervals by cross wires with the feed wire. A rod or arm extends from the car and connects with the overhead trolley wire. Through said rod the electrical current is transmitted from the overhead wire to the running gear of the cars. The bill further alleges that the com puny, at the time of filing the bill, had nearly completed the erection of the poles and stringing the wires along its line, from its terminus in River street, through River street, a distance of about three-quarters of a mile, in which work it had expended a large sum of money, and that the line was nearly completed and ready for use, to be operated under the trolley system. In these preparations the employes of the company had strung a feed wire along and over the sidewalk, near the curb line, in front of lots Nos. 557, 559, 561, and 563 River street, owned by the defendant Joseph C. Grundy: the wire being, as alleged, one of the wires necessary for the operation of the trolley system by electricity, adopted by the said company, and intended to be used in propelling cars upon its tracks on River street. This wire was 22 feet above the surface of the sidewalk, and was attached at both ends to poles set in the ground at the edge of the curb on the sidewalk,—one upon lands southwest of defendant's lands, and the other upon lands northeast of defendant's lands. On the 7th day of June, James Grundy and John Grundy, brothers of the said Joseph C. Grundy, and by his direction, cut the wire stretched in front of the lands mentioned. To do this they put a ladder up against the limb of a tree, and James held a sledge hammer against the wire, while John cut it with a chisel or some sharp instrument. The defendants threatening to cut the wire as often as it should be strung across that space, the complainant, the railway company, filed the bill in this cause for an injunction to prevent their so doing.

On the presentation of the bill, an order to show cause why an injunction should not issue, in pursuance of the prayer, restraining the defendants from interfering with the said wire, was issued, with a restraining order forbidding the defendants from so doing until the further order of the court. A copy of this order was served upon the defendants by the deputy sheriff of the county of Passaic; but one of the defendants, notwithstanding the mandate of the court, again cut the wire, which had been replaced. On the hearing of the order to show cause, the violation of the previous order of the court was brought to the attention of the court, by motion to punish the party, of which notice had been given, with copies of affidavits to be presented. This act was committed by one of the defendants, who was not the owner of the property, and the hearing of the order to show cause proceeded against the owner. No answer was filed by the defendant, but affidavits of Joseph C. Grundy and John Grundy were presented, and the injunction was resisted, on the ground that the complainant had no legal authority in the premises. The affidavits show that the defendant Joseph C. Grundy objected to the company laying two tracks in River street, and refused his consent to their putting up poles upon, or stringing wires across, his sidewalk, unless compensation was made to him for the damages which would result from such use; that he notified the company to remove the wires after they had been strung, and that he would cut them if not so removed; and that John and James C. Grundy did cut the wire, after waiting for the company to take it down. The claim is made by the affidavits that it would be impassible to raise a ladder up to the buildings in case of fire, or if the owner wished to paint or repair; that the tracks do not leave sufficient room between the rail and sidewalk for horses and wagons to safely pass while the electric railway may be in operation; that the tenants are incommoded, and that two of them have moved on account of alleged danger to the lives of their children; that the route of the original Paterson & Little Falls Horse & Steam Railroad Company did not goon River street; and that the only motive power used was by horses hitched to the cars, until the last two or three months, when the electric trolley system was first used. The affidavits present no justification of the acts of the defendants, unless it is true that the complainant company has, without lawful authority, placed an obstruction on the highway, which any one may remove, or, without such authority, has invaded some riant of the owner of the premises in a way to justify him in forcibly removing the obstruction so placed upon the use of his property. The objection urged by the defendants' counsel was a want of legal authority in the complainant—First, to maintain a two-track or any railway on River street; and, second, to use electric motors, or erect and maintain on the streets the necessary appliances for the transmission of electricity to the cars.

Has the complainant lawful authority to maintain a street railway on River street? Whether such right is for two tracks or only one cannot affect this controversy. The complainant insists that by virtue of the proceedings taken in pursuance of the act of 1888, it is vested with the rights, privil?ges, and franchises of each of the three corporations which were consolidated into the complainant corporation. The second section of that act provides that, on making the agreement of consolidation, and filing the same or a copy with the secretary of state, "the several corporations, parties thereto, shall be deemed and taken to be one corporation by the name provided in said agreement and act, possessing all rights, privileges, and franchises, and subject to all the restrictions, disabilities, and duties of each of such corporations so consolidated;" and by section 3, "that, upon the consummation of said act of consolidation, all and singular the rights, privileges, and franchises of each of said corporations, parties to the same, and all property, real, personal, and mixed, * * * shall be taken and deemed to be transferred to and vested in such new corporation, without further act or deed." By the act of consolidation, therefore, the complainant was vested with all the rights, privileges, franchises, and property at that time enjoyed, owned, or possessed by the Paterson City Railway Company. This latter company existed by virtue of the provisions of the statute providing for the incorporation of a new company by the purchasers of the franchises and property of a railroad under foreclosure proceedings. Revision, p. 921. Section 76, p. 922, provides that a new corporation formed...