Opinion
June Term, 1896.
James C. Church, for the plaintiffs.
William N. Dykman, for the defendant.
When this case was last before us we did not overlook the questions discussed by the appellant on the present motion for a reargument, though as to two of such questions we regarded them as settled by concessions of the respective counsel made on the argument. In our opinion the removal by the defendant of its tracks from a part of the Coney Island Plank Road, and its abandonment of that part of its road for a period, did not determine or forfeit the defendant's franchise over such road, so as to prevent the defendant from relaying its tracks thereon. Such abandonment only operated as a cause of forfeiture, of which the People alone could take advantage, as was done in the case of The People v. Broadway Railroad Co. ( 126 N.Y. 29). The principle that an abutter has sufficient special interest in a street to restrain an unlawful structure therein, has no application to this case, for the defendant's railroad is a lawful structure till the State claims a forfeiture. The proceeding to open Neptune avenue did not and could not affect the defendant's railroad franchise, whether an award was made for it or not. The opening proceeding was to acquire all property rights necessary to vest in the people of the State or the city of Brooklyn the easement of a public highway in the land taken. The railroad easement and franchise was not inconsistent, but consistent, with the public easement, and there was no authority given by law to condemn it.
It was conceded by counsel for the defendant, and properly, in our opinion, that the defendant could not use electric power in the operation of its railroad without the consent of the Railroad Commissioners. We also think that it must be confined, in relaying its road, to the location of the old Coney Island road; though we do not say that by the consent of the local authorities such location may not be changed to the new part of Neptune avenue. Such change would not be the grant of a new franchise.
The injunction should, therefore, be not wholly vacated, but modified so as to restrain the defendant from operating its road with electricity, except with the consent of the Railroad Commissioners, or on any part of Neptune avenue not lying within the limits of the old Coney Island road, except by the consent of the local authorities.
All concurred.
Motion for reargument denied, without costs. Order hitherto granted by this court vacated and orders appealed from modified so as to restrain the defendant from operating its road with electricity, except on the consent of the Railroad Commissioners, or on any part of Neptune avenue not lying within the limits of the Coney Island road, except with the consent of the local authorities. In other respects injunctions dissolved.