Opinion
04-17-1900
ATTORNEY GENERAL ex rel. MORRIS & CUMMINGS DREDGING CO. et al. v. GREENVILLE & H. RY. CO.
Lindley M. Garrison, for complainants. C. L. Corbin, for defendant
Injunction by Samuel H. Grey, attorney general, on the relation of the Morris & Cummings Dredging Company and others, against the Greenville & Hudson Railway Company to restrain the building of railway tracks across a street. On application for preliminary injunction and motion to strike out supplemental information and bill. Preliminary injunction allowed. Motion denied.
The defendant company is a railroad company organized in 1895 under the general railroad laws. Its railroad is located entirely within the limits of the city of Jersey City, in the county of Hudson, is 2.62 miles long, and the beginning and ending points are both points in the railroad of the Lehigh Valley Terminal Company. The route as located runs in a general northerly direction, near the shore of New York Bay, and crosses a public street called "Chapel Avenue," in the southerly part of Jersey City, which runs east and west, and terminates on the tide waters of New York Bay. The Morris & Cummings Dredging Company is the owner of the shore and lands under water at the end of the avenue, under deeds and riparian grants, and Chapel avenue is the only means of access to its valuable tract of land, containing about 14 1/2 acres shore front, and 200 acres under riparian rights. Complainant has expended considerable sums in improving its lands (in addition to rentals paid the state amounting to $80,000), but the filling in of the lands has not been completed, and the tract at present is actually occupied only by a few boat houses, a stable, and a single dwelling rented to tenants. The attorney general, on the relation of the dredging company, filed an information against the railroad company (with which was joined a bill by the dredging company), charging that the railroad company was proceeding to construct its road across Chapel avenue on a location about 225 feet west of its located route, and also that it intended on this location to cross Chapel avenue at grade, without having first obtained the consent of Jersey City, as required by the fourteenth section of the general railroad law, as amended March 17, 1891 (P. L. p. 109; Gen. St. p. 2601, par. 84). The dredging company, as complainant, also alleged irreparable injury to their interests if the road was crossed atgrade, and the information and complaint prayed injunctions against the construction of the defendant's railroad across Chapel avenue at grade at any point outside of the located right of way, and against crossing the avenue at grade without the consent of the city. The special prayer for injunction in the original information and bill did not include a prayer to enjoin generally the construction of the railroad across the aveuue outside of the located route, but only to enjoin the grade crossing outside of the route. Defendant's answer admitted its intention to construct a railroad across the avenue at the point in question, but denied that the crossing was to be at grade, and, by the affidavits filed before the answer, disclosed a plan for crossing under grade. The application for a preliminary injunction in the terms of the bill, which extended only to the crossing at the grade, was denied; the answer and affidavits denying the intention to cross at grade. Defendant's answer further disclosed that it intended to construct a railroad across the avenue as part of the route of a branch railroad called "Branch No. 1," located by it under the authority of the general railroad laws; after the filing of the information. The route and survey of Branch No. 1 is annexed to the answer, and shows that the branch begins at station 65+80 of the filed center line of the route of the Greenville & Hudson Railway Company, and running for a distance of 1.26 miles, all within the limits of Jersey City, terminates at the beginning point of the located route of the main line of the Greenville & Hudson Railroad. The length of this main line from the beginning point to its station 65+80, as appears by the copy of the located route annexed to the original information, is about 6,580 feet, or 1 1/4 miles. Defendant's answer also shows that it is the owner of the lands north and south of Chapel avenue between the crossing of its main line and its Branch No. 1, but the answer does not expressly claim any ownership in fee of the lands included within the street lines. The answer of defendant also shows that its said land north of the avenue now contains more than 20 yard tracks intended for a railroad yard, and that the tracks intended to be constructed across the avenue under its located Branch No. 1 are with the view of running its cars under the avenue, and making use of the land south of the avenue for yard room, and also for connecting with other railroad tracks lying to the south and used in the same general business; the defendant's railroad forming, together with several other corporations, a part of the Lehigh Valley System, formed for the purpose of receiving and sending to tide water the traffic of this road. The order denying the preliminary injunction gave leave to amend the information and bill, and under this order a supplemental information and bill is filed, charging—First, that the location of defendant's Branch No. 1 throughout its length is practically parallel with that of its main line as located, and about 225 feet west thereof, and that this location of a so-called branch line is not in fact the location of a branch line, but is a relocation of its main line, which has not yet been fully constructed, and as such relocation is without authority of law; second, that the company has no authority, under the general railroad law, to locate any branch lines whatever; and, third, that, if it has any authority to locate and construct branch lines, the branch line, being entirely within the limits of Jersey City, cannot, under the law of 1893, be constructed without the consent of the municipal authorities, which has not been obtained. The supplemental information also charges that in the construction of its undergrade crossing under the avenue the company proposes to excavate the highway, which is 50 feet wide, and, after constructing its road, to carry the highway over it by a bridge only 25 feet in width, thus narrowing the highway to one-half of its width. Such method of construction is declared to be illegal, and an irreparable injury to complainant. Decree is asked declaring that the construction of the road outside of the main line is illegal; that the construction of the road proposed as a so-called "branch line" is illegal; that the construction of the branch without consent of Jersey City is illegal; and that defendant is without power or authority to interfere with the surface soil of the avenue by substituting a bridge, and lessening the width of the avenue. An injunction is prayed restraining the construction of Branch No. 1 as located, and from narrowing the passageway of the avenue. On this supplemental information and affidavits, and on the original information and affidavits and answer, application is now made for a preliminary injunction. The defendant at the same time moves to strike out and dismiss the supplemental bill, on the ground that the dredging company has shown no such special interest or injury as entitles it to maintain a bill; its injury, if there be any, being sustained in common with the public. A motion is also made to strike out and dismiss the supplemental information and bill as to the attorney general and the dredging company, and as to each of them, on the ground of misjoinder, and for want of equity in the bill, because no facts are stated showing any illegality or irregularity in the location of the branch line, or to show the necessity of the consent of Jersey City to its location or construction, and for want of parties the mayor and aldermen of Jersey City. The application for injunction and the motion to strike out are heard together.
Lindley M. Garrison, for complainants. C. L. Corbin, for defendant
EMERY, V. C. (after stating the facts).This hearing together of the motion to dismissand the application for preliminary injunction, is according to the usual practice where a demurrer or plea is interposed. 2 Daniell, Ch. Prac. p. 596. And the motion to strike out the information and bill, which has under rule 213 the effect of a demurrer, must be first determined. A case on demurrer must be heard and fully determined as to all questions of law involved on the admitted facts, and these questions cannot be reserved for future determination on final hearing, as is sometimes done where important questions of law are raised on an application for preliminary injunction, and want of equity in the bill is urged as an objection to such injunction. In view of this bearing of a decision upon demurrer, parties will sometimes, in a proper case, be put to a formal demurrer instead of a motion to dismiss; but in the present case it is not necessary, as the legal questions are fully raised by the motion, and have been fully argued, with a view to immediate decision, and I will therefore dispose of the legal questions arising on the motion.
As to the motion to dismiss the bill because the dredging company have not shown such special legal interest or injury as entitles them to file a bill, I think the motion must be granted, on the authority of the. decision of the court of errors and appeals in H. B. Anthony Shoe Co. v. West Jersey R. Co. (1898) 57 N. J. Eq. 607, 618, 42 Atl. 279. In that case the defendant, a railroad company, had constructed an additional track in a public highway on which complainant's property abutted, and the injury which complainant alleged was special, in the sense that this obstruction in the highway specially interfered with the prosecution of its business; but the complainant did not own the fee of the highway, and it was therefore held that the legal right on which its alleged special injury was based was only the common right of the public to use the highway, and the injury to complainant, although greater in degree, was in character the same as that of the entire public. There was therefore no special legal right or injury on which complainant's claim to equitable relief could be based, and the bill was dismissed. Mr. Justice Garrison, who dissents on one of the questions of equitable jurisdiction involved in the case, agrees with the majority of the court, and with the court below, in holding that no private right was involved, and that the complainant's bill should be dismissed because it could not assert the public right. The dredging company here shows no special legal right to the fee of the street at the place of crossing, and no injury different in character from the general injury to the public, and therefore, while it may be relator to an information by the attorney general, it cannot have a decree in its private right on the bill, and the supplemental bill must be dismissed. But the dismissal of s bill filed in connection with an information does not carry the information with it, and the attorney general. if the information shows a right to relief, may have a decree. 1 Daniell, Ch. Prac. (6th Ed.) p. 11, citing, inter alia, Attorney General v. East India Co., 11 Sim. 385, 388; Attorney General v. Cockermouth Local Board (1874) L. R. 18 Eq. 172, 179; Attorney General v. Vivian, 1 Russ. 226. These are all cases where the complainants were, as here, not only complainants, but relators, in the information, and the misjoinder of a private bill with an information was not considered as affecting the attorney general's right to a decree on information filed in the public interest. As relator, the dredging company is not required to have any special interest. 1 Daniell, Ch. Prac. (6th Ed.) p. 13. The substantial questions raised on the application for injunction on the information and the motion to dismiss are (1) whether the construction of a branch road by defendant company across the avenue is beyond its power under the railroad laws; (2) whether, if it has such power, the previous consent of the municipality is necessary to the construction; (3) whether the road proposed to be constructed is in fact a branch road, within the meaning of the railroad laws; and (4) whether, if all these questions be decided in defendant's favor, it should not still be enjoined from narrowing the highway in the construction of its branch road across it.
Two other questions may be noticed, which relate rather to the jurisdiction of this court or to its exercise on preliminary injunction. It is suggested in the brief of defendant's counsel, but not argued, that the restraint of the illegal exercise of the powers of a public company, even on final hearing, is not clearly a subject of equitable jurisdiction, and therefore should not be exercised by preliminary injunction. But, as above stated, the case, being heard as on demurrer, must be considered as now on final hearing, for the purpose of deciding all legal questions involved on the admitted facts. And this question as to the jurisdiction in equity to restrain the excess of corporate powers, on the application of the attorney general, where the excess tends to public injury, is settled by the decision in Stockton v. Railroad Co. (Ch. McGill, 1892) 50 N. J. Eq. 52, 78, 24 Atl. 964, 17 L. R. A. 97. There is no reason, therefore, for withholding decision upon the question of defendant's powers to construct a branch road across the avenue until final hearing, on the supposition that jurisdiction to pass upon this question will then be declined. And inasmuch as the facts upon which this right to construct a branch at all across the avenue are undisputed, and only points of law are involved, which have been fully argued by counsel on both sides, as applicable both to the motion to dismiss the information andto the right to injunction, there is no sufficient reason for holding the decision of these questions until a second argument on final hearing, and the question of the right to construct the branch should be disposed of on this motion, both in the interest of the public and of the company. The authority of defendant company to construct a branch line rests upon the eleventh section of the general railroad law, as amended March 10, 1891 (P. L. p. 129; Gen. St. p. 2660, par. 83), which provides that "it shall be lawful for every corporation formed under the act * * * to construct, maintain and operate a railroad with a single or double track, with such side tracks, turnouts, offices and depots as they may deem necessary between the points named in the articles of association, commencing at or within and extending to or into any town, city, or village, named as the place of the termini of such road, and from time to time, either before or after the completion of the main line, construct, maintain and operate branches within the limits of any county through which said road may pass. * * *"
The attorney general claims that the language of this section, as to the construction of branches, clearly confines the construction of branches to those companies which pass through a county, and that the words "passing through a county," as here used, mean passing from one line or boundary of the county to another of its boundaries. As this portion of section 11 has been, from the time of the first enactment of the general railroad law in 1873, the only grant of express authority to construct either main lines or branch roads, and the grants for both purposes are expressly connected in this section, the construction which has been adopted as to the location and extent of the main lines which are authorized to be constructed must be considered as possibly affecting the construction which must be put upon the location and extent of the branch lines which are authorized. Soon after the passage of the general railroad law, the question was raised whether this section authorized the construction of any railroad, the termini of whose main lines were both within the same town or city; and in Long Branch Com'rs v. West End R. Co. (1878) 29 N. J. Eq. 566, it was held by Vice Chancellor Van Fleet that such road was authorized, and this decision was approved in National Docks Ry. Co. v. Central R. Co. of New Jersey (Err. & App.; 1880) 32 N. J. Eq. 755, 766. This decision has been since acted on in many instances, in the location of railroads entirely within the limits of a city or county, and is unquestionable. It is next to be noticed that, so far as relates to the power of any road which can construct a main line to construct branches also, the act does not, by express words, disclose any intention to withhold from any road authorized to construct a main line the authority also to construct branches. The power to construct branches is introduced in the section as a general power given to every corporation under the act, and the limitation of this power to railroads, which do not have a route extending entirely between different boundaries of the county, arises, if it exists at all, from an implied restriction. This implied restriction which is claimed results from the subsequent description in the section of the character or location of the branches authorized, in which subsequent description of the location of the branch road reference is made, as part thereof, to the extent or character of the location of the original road. As so described, the branches authorized are only "branches within the limits of the county through which the said road may pass," and the attorney general claims that this expression has two clear results, in reference to the construction of branch roads—First, to confine the branch itself within the limits of the county in which it starts from the main line; and, second, to limit the power to construct branches to roads which pass through counties from one boundary to another. I cannot yield my assent to the second claim, and I think that, in the absence of any direct express provision or necessary implication limiting the class of roads which is to have the power to construct branch roads, the general words of the section authorizing the construction of main lines should extend also to the construction of branches, and should not be so limited as to deprive any company which has the authority to construct a main line of the right to construct branches. There is, in my judgment, no necessary implication in this case which requires that the words, "county through which the said road may pass," which are used primarily to describe—limit the extent of—the branch, should, with reference to the main line, be construed as necessarily meaning that the main line should "pass through" the county, in the sense of going from one boundary to another. The words "pass through," as here used in reference to the main line, may be considered as used in the sense in which an arrow is said to "pass through" the air; the notion of motion or location in a body or space being referred to. "Passage through" a county at the point of departure of the branch road from the main line was, as it seems to me, the object of the reference to the main line, and the fixing of the terminus a quo and the terminus ad quem of the main line, which could construct branches, by a reference to its "passing through" a county was not intended. With respect to the classes of railroads to be built under the general railroad law, it has been declared that the construction of the act should be liberal. Id. And the same construction should be adopted in reference to the general grant of the powers of the act to all classes of corporations organized under it, and none should be excluded from the exercise of a general power.unless excluded expressly or by an implication so necessary as to leave no doubt of the intention to exclude. I conclude, therefore, that the defendant company has the right to construct a branch road, under this section, from its main line, which lies entirely within the county, and does not pass through it from one boundary to another.
The second question is whether the consent of the municipal authority of Jersey City is necessary to the construction of a branch road, under the act of March 10, 1893 (P. L. p. 175, c. 90), entitled "An act concerning railroad corporations." Such consent has not been obtained, and if it is made necessary by statute it is admitted that the information must be sustained, and a preliminary injunction must be issued to enforce it, under the authority of Franklin Tp. v. Nutley Water Co., 53 N. J. Eq. 601, 32 Atl. 381; Stockton v. Railway Co., 53 N. J. Eq. 418, 32 Atl. 680; Grey v. Traction Co., 56 N. J. Eq. 463, 40 Atl. 21. The question as to the necessity of municipal consent now arising under the act may be briefly stated without reciting the act in full. The title of the act is general, being "An act concerning railroad corporations," and in the first section it confers upon all railroad corporations power to construct branch lines from their main lines, and also from existing or future branches thereof, to any mill, factory, or manufacturing establishment or clay bed, and for this purpose again invests the corporation with its original power to take and acquire lands. Three provisos then follow in the same section of this grant of power to build branch lines, viz.: Provided, however, that no such branch line shall be more than two miles in length; and provided, further, that the corporation "which shall hereafter construct any branch line or lines in pursuance of the power and authority hereby conferred" shall file a route with the secretary of state, and make a deposit with the state treasurer; and provided, further, that no railroad corporation shall construct any branch lines within the limits of any city or town of this state until it shall first obtain the consent of the municipal authorities of such city or town thereto. The first and second provisos clearly and expressly apply only to the branches to clay beds, etc., authorized by the act; but the third proviso is general in its reference to branches, and it is insisted by the attorney general that the words of this proviso being general, and not limited to the branches to clay beds, etc., apply to any branch line thereafter constructed, whether under the power to construct branch lines given by the general railroad law, or the special branches to clay beds, authorized by the act of 1893. It is pointed out and with force, that the title of the act is general, that instances of general legislation by provisos are not unusual, and that they have been sustained as such legislation in important instances. Upon the other hand, it is contended by defendant's counsel that the recognized general rule in reference to the construction of such provisos is that they are to be taken as qualifying or limiting only the general powers conferred by the act in which they occur, and not as limiting grants of powers arising under other legislation, and numerous cases illustrative of this general doctrine are cited. It is admitted on both sides that the ultimate object to be reached by any principle or rule to be applied is the ascertainment of the intention of the legislature in enacting the words of the statute in question, and that all rules and illustrations of construction are useful solely for this purpose of ascertaining the legislative intent as expressed by the statute.
The considerations which constrain me to hold that the general words used in the third proviso of this section must be construed as applying only to the branches authorized by the act are two: First. Their general application to all branches of railroads thereafter constructed would limit a general power to construct branches, which had been in existence from the passage of the general railroad law, and make the power to build a branch line to any city or town of the state thereafter dependent on the consent of the municipality. This would be opposed to the general policy of the railroad laws, which leaves the general power of construction of main lines and branches free and untrammeled except by the conditions fixed by general laws enacted by the legislature in the general interest. If the general power of building branch roads given by the original railroad law is thus limited in respect to branches constructed after the act of 1893, it will obviously affect or control, in the interest of then existing roads or their branches, the construction of competitive branches of other roads to towns or cities, and to this extent defeat the policy of the original act. To confer upon the municipal authorities of any city or town a practical veto upon the power given to a railroad company to construct a branch to and within its limits under the general railroad law would be such a departure from the scope and policy of the general railroad law, and such a legislation in favor of special interests, that legislation claimed to have this effect should not be subject to any other reasonable interpretation. I am unwilling to infer the intention to confer such power from the mere use in a proviso of general language which, if construed according to general rules of construction, admittedly proper for that purpose, can fairly and reasonably be limited to a special power conferred by the act itself, viz. to build branches to clay beds, etc. Second. In view of the obvious effect of giving to the proviso in question the effect claimed, the adoption of this construction must be imperative. Thisprovide, as will be noticed, is the third proviso of the section, and follows two previous provisos, the first of which, introduced by the words, "provided, however," expressly applies only to the branches built under the act. and cannot apply to branches built under the existing general law. The second proviso, "and provided, further," is not an independent proviso, which may reach to branches not included within the scope of the first proviso, but is strictly a further or additional proviso to the first, and, like the first, reaches only to the branches built under the act. It is an additional or further limitation on these alone. The third proviso follows in the words "and provided, further," and the continued use of the word "further" describes the scope and character of this proviso as also intended to be an additional proviso applicable to the branches included in the two previous provisos, and not as a new or independent proviso, intended to reach branches which were not included at all within the previous proviso. For these reasons, therefore, I conclude that the consent of the municipal authorities to the construction of the branch road was not necessary under the act of 1893.
The third question submitted is whether the road proposed to be constructed across Chapel avenue is in fact a branch road, within the meaning of the act. Taking the undisputed facts in relation to this proposed "branch road," as disclosed by the answer to the original bill and the affidavits to the supplemental bill, my present view is that this road cannot properly be called a "branch road." The usual and ordinary meaning of a "branch road," as applied to railroads, denotes, as was said by Mr. Justice Dixon in Akers v. Canal Co. (Sup.; 1881) 43 N. J. Law, 110, 112, a road connected, indeed, with the main line, but not a mere incident of it, or constructed simply to facilitate the business of the chief railway, but designed to have a business of its own, for the transportation of persons and property to and from places not reached by the principal route. While these expressions were not intended and should not be applied as giving a fixed meaning to the word "branches," and while the circumstances of each case must ultimately control the application of the statute, yet the main principles of distinction which usually occur as between main lines and branches are stated with authority. These principles were applied in a case where the question was whether tracks leading to freight houses were branch roads, within the power of the road to build. The road now proposed to be built begins and ends on the main line, and, so far as yet appears, reaches no other points or places for railroad service than those on the main line as located. The branch is practically parallel with the main line throughout its whole length, and distant only about 225 feet therefrom. The intervening space, so far as now appears, is occupied by terminal yards connected with the main line, or with the system of which it forms part, and the "branch" is constructed for the purpose of facilitating the use of these terminal yards. This proposed line of tracks across the avenue is to be constructed, as the answer says, "with a view to run its cars under the avenue on the said branch, and make use of its railroad yard south of the avenue for yard room, and also connect with other railroad tracks lying to the south, and used in the same general business." This business is further described in the answer as the receiving and handling the traffic sent to tide water over the Lehigh Valley System. The main line of the defendant's road is not yet completed, and, on the facts as now disclosed in relation to the character and connection of the main line and the proposed branch, the construction of this "branch" is substantially the crossing of the avenue by the terminal yard tracks connected with the main line as located. If these tracks are bona fide "branches" of the main line, it is difficult to see why the entire system of terminal tracks cannot be extended across the public highway as "branches." If, on the other hand, this "branch" Is really intended to be used for the main route, then it must be so construed under the special laws relating to relocation or straightening routes, and not as a branch. I conclude, therefore, that the facts disclosed by the answer to the original bill and by the affidavits do not disclose authority in the defendant to interfere with the public highway under claim of right to construct this railroad as a "branch" road, and that such interference with the highway is in excess of the power of the company.
The affidavits in this case, while they show that the road, if constructed across the avenue as proposed, will interfere to some extent with public travel, do not show such a probable interference with the present ordinary course of public travel as to create a serious public nuisance merely by interference with travel. Two important questions, therefore, remain to be considered— First, whether the attorney general has the right to restrain the construction of the road without evidence of serious actual public injury; and, second, whether a preliminary injunction should go.
As to the first question, the cases relating to the right of the attorney general to intervene in the public interest, which are numerous, show that the distinction is between cases in which a public nuisance by reason of interference with ordinary public travel is the sole basis of complaint, and cases where the real injury on which the attorney general's information is based is an illegal act on the part of a public company in excess of its powers, through which illegal act the public generally is affected. In cases of the first class, based on nuisance to travel or passage, it is settled that the attorneygeneral, in order to obtain the aid of a court of equity, must show a serious public injury, which cannot be remedied in the ordinary tribunals. Karitan Tp. v. Port Reading R. Co., 49 N. J. Eq. 11, 18, 23 Atl. 127, and cases cited. In cases of the latter class,— excess of public powers affecting the public rights,—the rule is settled by many authorities that the attorney general is justified in interfering without evidence of actual injury to the public. In Attorney General v. Shrewsbury Bridge Co., 21 Ch. Div. 752 (Fry, J.), all the previous English cases are examined, and this rule declared to be settled; and this case also shows that, as to nature of the public interest to be protected, the interference with the public highways or the navigable waters of the state, by a public company in excess of its powers, is a sufficient public interest. This seems to me to be the true rule upon the question now involved. The protection of the state and the public rights against the illegal excess of powers is peculiarly under the charge of the attorney general, and, where this excess affects public rights in highways or navigable waters, the remedy of the state to control the excessive use of a power conferred for public use should not be confined to the uncertain and incomplete remedies by indictment or action after the injury has been completed. For the complete relief and protection to which the attorney general, as representing the public rights in highways, is entitled, restraint against the excessive use of power is necessary. The uncertainty of protecting the public rights in highways by indictments against nuisances was one reason for the establishment of the doctrine that these public rights should also be protected by ejectment and by injunction, pursued by the municipal bodies vested with control of the highways. In Hoboken Land & Improvement Co. v. Mayor, etc., of the City of Hoboken (Err. & App.; 1873) 30 N. J. Law, 540, Mr. Justice Depue says, upon this point of protection of the public rights in highways by ejectment, in favor of municipal authorities: "To deny this form of relief, and remit the public to a remedy by indictment for nuisances, would result in subjecting public rights in property to the varying moods of grand juries." In courts of equity the right of the attorney general to interfere, on behalf of the general public for the protection of the public highways in a proper case, never seems to have been questioned, and bills by municipal authorities for such protection are maintained on the ground that for this purpose they have a special interest or right different from that of the public at large, who can be represented only by the attorney general. Easton & A. R. Co. v. Inhabitants of Greenwich Tp. (Err. & App., 1874) 25 N. J. Eq. 565, 567. In view,.therefore, of the clear tendency of the courts to increase, rather than diminish, the remedies necessary for the complete protection of the public interest in highways, it results a fortiori that no restriction or abatement should be made in the rights of the attorney general to apply to a court of equity to protect the public highways from an unauthorized invasion by an excessive use of statutory public powers.
As to the issuance of a preliminary injunction, such injunction is usually necessary in order to afford the complete relief to which the public are entitled if in fact the interference with the highway is illegal, and preliminary injunctions seem to have been granted and approved in cases of this character where the right to ultimate equitable relief is clear upon the admitted facts. Easton & A. R. Co. v. Inhabitants of Greenwich Tp., supra. In cases involving the protection of private rights and municipal rights against excessive use of power by public companies, a preliminary injunction is always granted, where necessary for the complete protection to which they are entitled on undisputed facts. Franklin Tp. v. Nutley Water Co., 53 N. J. Eq. 601, 606, 32 Atl. 381, and cases cited. The public rights now asserted against the same kind of injury are entitled to the same protection, and the information does not come within the rule equally well established and enforced, where the rights to be protected and the injury complained of involve private property or rights only, that irreparable injury must be shown in order to award a preliminary injunction.
In the case in band timely notice has been given of the intention of the attorney general to question the right of defendant to construct a railroad across the highway at the point in question, under any of the powers so far conferred upon the defendant, and there are no special circumstances in the case which entitle the defendant to proceed with the construction pending suit, subject to the liability to remove the obstruction upon decree at final hearing. In the absence of an answer to the supplemental information, and so long as the defendant's authority to construct a road across the highway depends solely upon the facts now disclosed and admitted for the purpose of this argument and motion, the construction must be enjoined. I will advise a decree dismissing the supplemental bill, denying the motion to dismiss the supplemental information, and directing a preliminary injunction until answer and further order. If defendant desires to appeal, and files notice of appeal without delay, the informant will, as a condition of preliminary injunction, give the consents necessary to put cause on the list for hearing at the June term of the court of errors and appeals.